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HomeMy WebLinkAbout04 DDA 2012-002, ST ANTON PARTNERS-- AGENDA REPORT MEETING DATE: NOVEMBER 6, 2012 Agenda Item Reviewed: � City Manager Finance Director ��✓ TO: JEFFREY C. PARKER, CITY MANAGER & TUSTIN HOUSING AUTHORITY EXECUTIVE DIRECTOR FROM: ELIZABETH A. BINSACK, COMMUNITY DEVELOPMENT DIRECTOR JOHN BUCHANAN, PROGRAM MANAGER, CITY MANAGER'S'OFFICE SUBJECT: CITY COUNCIL CONSIDERATION OF DISPOSITION AND DEVELOPMENT AGREEMENT (DDA) 2012 -002, DEVELOPMENT AGREEMENT 2012 -002 (ORDINANCE NO. 1422), CONCEPT PLAN (CP) 2012 -003, DESIGN REVIEW (DR) 2012 -005, DENSITY TRANSFER, DENSITY BONUS, AND CONCESSIONS OR INCENTIVES AUTHORIZED UNDER TUSTIN CITY CODE SECTION 9123 RELATED TO THE PROVISION OF AFFORDABLE HOUSING UNITS IN COMPLIANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65915(1) FOR PROPOSED DEVELOPMENT OF TUSTIN LEGACY DISPOSITION PACKAGE 1A -NORTH — 225 AFFORDABLE MULTI - FAMILY RESIDENTIAL APARTMENT HOMES; AND, TUSTIN HOUSING AUTHORITY CONSIDERATION OF THE REQUIRED AFFORDABLE HOUSING AND REGULATORY AGREEMENT. SUMMARY: St. Anton Partners has submitted applications to the Community Development Department for Development Agreement (DA) 2012 -002 (Ordinance No. 1422), Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123 related to the provision of 225 affordable residential apartment housing units in compliance with Califomia Government Code Section 65915(1) required for the proposed development of Tustin Legacy Disposition Package 1A -North. On October 9, 2012, the Tustin Planning Commission considered the matter and recommended that the Tustin City Council approve the project, as conditioned. The project is consistent with the MCAS Tustin Specific Plan, and the June 19, 2012 Exclusive Negotiation Agreement (ENA) between The Irvine Company (on behalf of St. Anton Partners) and the Tustin City Council. St. Anton Partners and City of Tustin have completed and desire to enter into Disposition and Development Agreement (DDA) 2012 -002 for the development of 225 affordable multi - family residential apartment homes, including 88 very low- income, 73 low- income, and 64 moderate - income units in compliance with California Government Code Section 65915(1), at Disposition Package 1A -North, Tustin Legacy, to be implemented by St. Anton Partners or its affiliate as may be approved by the City of Tustin. APPLICANT: St. Anton Partners, LLC PROPERTY OWNER: City of Tustin 4630 Campus Drive, Suite 111 Newport Beach, CA 92660 City Council Report November 6 2012 DDA 2012 002 DA 2012 002 CP 2012 003 DR 2012 005 Density Transfer Density Bonus Page 2 RECOMMENDATION That the City Council 1 Adopt Resolution No 12 -96 finding the project is within the scope of the adopted Final Environmental Impact Statement/Environmental Impact Report for the MICAS Tustin Reuse and Specific Plan, the Supplemental and Addendum and that pursuant to Government Code Section 65457, the project is exempt from further environmental review 2 Adopt Resolution No 12 -99 approving Disposition and Development Agreement (DDA) 2012 002 between the City of Tustin and Anton Legacy Tustin L P a Special Purpose Entity formed by St Anton Partners, for development of 225 affordable residential apartment housing units, including 88 very low income, 73 low income, and 64 moderate income units at Disposition Package 1A -North, and, authorizing the City Manager to execute said DDA 2012 -02 subject to any non - substantive modifications as may be determined necessary and/or recommended by the City s special real estate counsel or the City Attorney and to carry out all City actions necessary to implement the DDA including execution of related documents as required by the DDA, 3 Introduce and have first reading of Ordinance No 1423 approving Development Agreement (DA) 2012 -002 between the City of Tustin and 'Anton Legacy Tustin L P " a Special Purpose Entity formed by St Anton Partners, for development of 225 affordable residential apartment housing units including 88 very low- income, 73 low- income, and 64 moderate - income units at Disposition Package 1A -North, 4 Adopt Resolution No 12 -94 approving Concept Plan (CP) 2012 -003 Design Review (DR) 2012 005, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123 related to the provision of 225 affordable residential apartment housing units in compliance with California Government Code Section 65915(1) required for the proposed development of Tustin Legacy Disposition Package 1A -North (St Anton Partners) 5 That the Tustin Housing Authority authorize the Executive Director and /or City Manager to execute the Declaration of Affordable Housing Covenants and Regulatory Agreement between the Tustin Housing Authority, the City of Tustin and St Anton Partners FISCAL IMPACT 1 At conveyance the City will receive $30 148 000 from the sale of parcels 2A and 1A- North that will be placed in the Land Sale account An independent third party appraisal was conducted by the City the appraisal confirms that the property is being sold at Fair Market Value Because of the density bonus and transfer of 120 affordable units to 1A North, the opinion of value was for the combined parcels 2A and 1A -North The City will receive $30,148,000 upon the conveyance of parcel 2A and $1 00 upon the conveyance of 1A -North 2 The Developer will pay the Tustin Legacy Fair Share Infrastructure Obligation in the amount of $4,324,393 for the construction of infrastructure within the Tustin Legacy project The Fair Share will be paid by the Developer when the City has opened Park City Council Report November 6 2012 DDA 2012 002, DA 2012 002, CP 2012 003, DR 2012 005 Density Transfer Density Bonus Page 3 Avenue to public access, public access will be determined by the Director of Public Works 3 Developer is agreeing to design and construct a 4 7 acre park and facilities that will be dedicated to the City upon completion The value of the park and facilities are approximately $2 200 000 4 Currently the property is tax exempt because of City ownership The moderate income units will be taxable however the very low income units and low income units will be tax exempt In lieu the Developer has agreed to pay an annual administrative fee equal to the property taxes that the City would normally receive 5 The City's transaction costs are borne by the Developer 6 The Developer will pay an annual Community Facilities District (CFD) fee not to exceed 0 15 percent of the imputed assessed value of the property escalated at 2 0 percent annually The CFD will be used for essential services and maintenance within Tustin Legacy The applicant has paid the required application fees for DA 2012 -002 CP 2012 -003 DR 2012 -005, Density Transfer, and Density Bonus ENVIRONMENTAL On January 16 2001 the City of Tustin certified the Program Final Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the reuse and disposal of MCAS Tustin On December 6, 2004 the City Council adopted Resolution No 04 76 approving a Supplement to the FEIS /EIR for the extension of Tustin Ranch Road between Walnut Avenue and the future alignment of Valencia North Loop Road On April 3, 2006, the City Council adopted Resolution No 06 -43 approving an Addendum to the FEIS /EIR The FEIS /EIR along with its Supplemental and Addendum is a program EIR under the California Environmental Quality Act (CEQA) The FEIS /EIR, Supplemental and Addendum considered the potential environmental impacts associated with development on the former Marine Corps Air Station Tustin An environmental checklist was prepared for the proposed project that concluded no additional environmental impacts would occur from approval of the project The Environmental Analysis Checklist concludes that it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment because all potentially significant effects 1) have been analyzed adequately in an earlier EIR pursuant to applicable standards and 2) have been avoided or mitigated pursuant to that earlier EIR, including revisions or mitigation measures that are imposed upon the proposed protect Further Government Code Section 65457 subdivision (a), establishes a statutory CEQA exemption for any residential development project including any subdivision, or zoning change that is undertaken to implement and is consistent with a specific plan for which an EIR was certified after January 1, 1980 the City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457 City Council Report November 6 2012 DDA 2012 002 DA 2012 002 CP 2012 003 DR 2012 005 Density Transfer Density Bonus Page 4 APPROVAL AUTHORITY In 2010 the Tustin City Council approved the Tustin Legacy Disposition Strategy for the Former Master Developer Footprint for Neighborhoods B, D E and G including Disposition Package 1A- North within Planning Area 15 of Neighborhood G Pursuant to an extensive developer selection process St Anton Partners was selected to develop the site and on June 19, 2012, an Exclusive Negotiation Agreement (ENA) was executed with The Irvine Company (on behalf of St Anton Partners) St Anton Partners and City of Tustin have completed and desire to enter into Disposition and Development Agreement 2012 -002 MCAS Tustin Specific Plan Section 4 2 9 requires a Development Agreement for all private development at Tustin Legacy in accordance with Section 65864 et seq of the Government Code and Sections 9600 to 9619 of the Tustin City Code MCAS Tustin Specific Plan Section 4.2 2.A requires the submission of a concept plan prior to or concurrent with the submission of a new development proposal within Planning Area 15 MCAS Tustin Specific Plan Section 4 2 4 requires the submission of a Design Review application following or concurrently with submittal of a concept plan individual development and reuse projects within Planning Area 15 MICAS Tustin Specific Plan Section 3 2 3 permits the transfer of residential units (density transfer) between parcels subject to review and approval Tustin City Code Section 9141(b) authorizes the submission of an application for a density bonus and /or concession or incentive to be processed concurrently with any other permit application(s) which require entitlements On March 15, 2011 the Tustin City Council adopted Resolution No 11 -20 establishing the Tustin Housing Authority pursuant to California Housing Authorities Law (Health and Safety Code section 34200 et seq ) On January 17, 2012, City Council adopted Resolution No 12 -08 stating that the Housing Authority would assume all rights powers assets, duties, and obligations associated with the housing activities of the former Redevelopment Agency and authorizing the City Manager to take such other and further actions, and sign such other and further documents as are necessary and proper to implement Resolution 12 -08 The above entitlements require consideration by various Tustin authorities However final determination of multiple applications may be deferred to the highest level of review authority In this case the Tustin City Council may approve deny or conditionally approve the project BACKGROUND On February 3, 2003, the Tustin City Council adopted the MCAS Tustin Specific Plan to establish development regulations and procedures for reuse of the former Marine Corps Air Station (MCAS) Tustin The MCAS Tustin Specific Plan has been formally amended eight times since its original adoption The document can be viewed at the Community Development Department's web page http. / /www tustinca org /departments /commdev /index html #planningZoning City Council Report November 6 2012 DDA 2012 002 DA 2012 002, Page 5 CP 2012 003 DR 2012 005 Density Transfer Density Bonus After termination of the Disposition and Development Agreement (DDA) and Development Agreement (DA) with Tustin Legacy Partners for the Master Developer Footprint in the summer of 2010 the Tustin City Council approved the Tustin Legacy Disposition Strategy for the Former Master Developer Footprint" for Neighborhoods B, D, E, and G (shown at right) The Disposition Strategy included the implementation of refinements and/or modifications to the MCAS Tustin Specific Plan to support development activities anticipated over the next economic cycle The document can be viewed at the City's "Tustin Legacy web page htto. / /www tustinca orq/ departments /citymanaoer /tustinleoacv html The approved Disposition Strategy provided that the City would assume an executive role in marketing early disposition packages or parcel groupings within the Master Developer footprint (shown at right), including Disposition Site 1A- North within MCAS Tustin Specific Plan Planning Area 15 of Neighborhood G at Tustin Legacy for apartment development (pictured at right) Disposition Package 1A -North consists of two parcels, an 8 073 acre parcel for multi- family development and a 4 706 acre park for park development (12 779 acres gross) Following the City s completion of an extensive screening process, St Anton Partners was selected to develop the site and on June 19, 2012, an Exclusive Negotiation Agreement (ENA) was executed with The Irvine Company for St Anton Partners because of their unique partnership (discussed below) The ENA requires St Anton Partners to proceed with entitlements for the project and to enter into a Disposition and Development Agreement (DDA) and Development Agreement (DA) that would lead to the acquisition and development of the proposed project by St Anton Partners The proposed entitlements are consistent with the requirements of the ENA Location Disposition Package 1A -North consists of 12 779 acres (gross) within Planning Area 15 of Neighborhood G MCAS - Tustin Specific Plan (Tustin Legacy) bounded by future Tustin Ranch Road on the west, future Legacy Road on the North Future Park Avenue on the east, and a vacant parcel to the south (See Attachment A) General Plan Designation MCAS Tustin Specific Plan (MCAS) Zoning Planning Area 15 Neighborhood G — MCAS Tustin Specific Plan (SP 1) Existing Land Use Vacant City Council Report November 6, 2012 DDA 2012 002, DA 2012 002 CP 2012 003 DR 2012 005 Density Transfer Density Bonus Page 6 DISCUSSION St Anton Partners is requesting City consideration of their development proposal for the site The 12 779 -acre Disposition Package 1A -North parcel is divided into two portions (shown below) The 8 073 acre southerly portion of the site is proposed to be developed with 225 affordable apartment units and the 4 706 -acre northerly portion is proposed to be improved with a public park (Note park design shown is conceptual final design use and programming is to be determined by staff, including the City Manager's Office, Parks and Recreation Community Development Public Works Police Department and others prior to park design and implementation) St Anton Partners has submitted applications to the Community Development Department for Development Agreement (DA) 2012 002, Concept Plan (CP) 2012 -003, Design Review (DR) 2012 005 Density Transfer Density Bonus and Concessions or Incentives authorized under Tustin City Code Section 9123 related to the development of 225 affordable residential apartment housing units in compliance with California Government Code Section 65915(1) at Disposition Package 1A North, Tustin Legacy, that if approved requires City Manager and Executive Director execution of a Housing Covenants and Regulatory Agreement Various City codes and regulations require the entitlements to be considered by a variety of Tustin authorities including the Director of Community Development Zoning Administrator, Planning Commission and City Council However final determination of multiple applications related to a single project may be deferred to the highest level of review authority On October 9 2012 the Tustin Planning Commission considered the proposal and adopted Resolution No 4205 recommending that the Tustin City Council approve the proposed project, as conditioned The Tustin City Council may approve deny or conditionally approve the project Disposition and Development Agreement In 2010 the Tustin City Council approved the "Tustin Legacy Disposition Strategy for the Former Master Developer Footprint" for Neighborhoods B, D E and G The Strategy divided the site into parcel groupings or Disposition Packages located adjacent to existing development and mayor infrastructure investments within Tustin Legacy including Tustin Ranch Road The Strategy identified four Early Opportunity sites including Disposition Packages 1A -North (shown on previous page) and 2A (shown at right) both are apartment uses On June 19, 2012, after a lengthy evaluation and selection process, the City Council entered into an Exclusive Agreement to Negotiate (ENA) with The Irvine Company for Disposition Package 2A and 1A -North with the acknowledgement that St Anton Partners (the selected developer of Disposition Package 1A North) was determined to be an eligible assignee by The Irvine Company for Disposition Package 1A North, an affordable housing protect Because of the manner in which each project is proposed to fund a Disposition and Development Agreement (DDA) for each parcel is being provided to the City Council for City Council Report November 6, 2012 DDA 2012 002, DA 2012 002, CP 2012 003 DR 2012 005 Density Transfer Density Bonus Page 7 consideration The negotiating period in the ENA for completion of the DDA is 150 days which will terminate on November 16 2012, unless extended The DDA would execute development of the 12 779 -acre Disposition Package 1A -North for 225 affordable multiple family apartment homes including 88 very low- income, 73 low- income 64 moderate - income units, at a density of approximately 17 6 units per acre and a complete accompanying set of amenities The proposed project is governed by the MCAS Tustin Specific Plan Tustin City Code and various Government Codes and the DDA Based on direction from the City Council the staff has followed the general principals outlined below in negotiating the DDA • The terms and conditions of conveyance include Developer performance measures such as construction commencement and completion dates • The property will be conveyed to the Developer at not less than Fair Market Value • The property will be conveyed to the Developer in an as -is -where is -and with all faults' condition • The development and construction of the project will be at no cost or expense to the City • The Developer will be responsible for paying all Tustin Legacy Backbone Infrastructure Program costs associated with the land use designated for that Disposition Package • The Developer will be responsible for local infrastructure costs, if any • The City will retain certain special restrictions beyond the term of the DDA including covenants for affordable housing • The City's risk as the seller of property is limited • The City will retain certain rights and remedies in the event that the developer fails to perform as specified in the DDA The DDA requires the Developer to perform the following • Construct a market quality apartment community containing 225 affordable units ranging across three income categories including very low income, low income and moderate income Those persons meeting the annual income standards for Orange County will be eligible residents The Developer will enter into a Housing Agreement with the City to ensure compliance An affordable housing covenant will be placed on the property for a term of 55 years • All on site vertical construction must be completed within 30 months of budding permits being issued by the City • Developer will be responsible for the design and construction of 4 7 acre park located adjacent to the development site Upon the completion of all park improvements the park will be dedicated to the City Conveyance of the property which is anticipated in April 2013, is dependent on the following significant events or closing conditions occurring However, in no event shall the close of escrow occur later than fifteen (15) months following execution of the DDA • The Developer successfully receives a Development Agreement (DA) prior to or concurrent with City approval of the project • The Developer successfully concludes their Due Diligence within sixty (60) following execution of the DDA City Council Report November 6, 2012 DDA 2012 002, DA 2012 002, CP 2012 003, DR 2012 005 Density Transfer Density Bonus Page 8 • The Developer will need to successfully apply for and receive tax exempt bond financing for the protect from California Debt Limit Allocation Committee (CDLAC) and to successfully apply for and receive a Tax Credit allocation from the California Tax Credit Allocation Committee (TCAC) • The Developer provides evidence of financing to the City indicating that sufficient resources are committed to develop 1A -North and the adjacent park as described in the DDA and outlined in the developer's Financing Plan • The Developer successfully receiving full entitlements to develop Disposition Package 1A- North as described in the DDA • The City forms a Community Facilities District within the former Master Developer Footprint • The City shall have dedicated the roadways accessing Disposition Parcel 1A -North Upon issuance of the Certificate of Compliance the Tustin Housing Authority will be responsible for monitoring and enforcing provisions of the City's affordable housing agreement —the Declaration of Affordable Housing Covenants and Regulatory Agreement St Anton, the proposed developer for 1A North, was vetted by The Irvine Company prior to the proposal process and by the City staff during the evaluation and selection process Based on performance to date, St Anton appears to have the ability as a developer and the financing capacity to develop 1A -North St Anton will use a combination of tax exempt bonds that are privately placed with a selected major financial institution and equity from internal and outside sources The Irvine Company will be an equity partner However, in the event that the City and St Anton (1A -North) fail to close within nine months following the execution of the DDA, the City and the developer (Anton Legacy Tustin L P) will work in good faith to find a suitable replacement affordable housing developer for 1A North The proposed development and DDA respond to all City objectives and goals established through the Request for Proposal process the Disposition Strategy, the MCAS Tustin Specific Plan and the approved ENA The benefits to be derived from the project are numerous and will have long lasting positive impacts to the City and community The financial commitments by the developer have been fully evaluated and the DDA protects the interests of the City Resolution No 12 -99 has been prepared in support of City Council consideration of DDA 2012- 002 a copy of which is on file with the Office of the City Clerk, subject to any non - substantive modifications as may be determined necessary as may be approved by the City Manager's office, or as recommended by the City's special counsel or the City Attorney In addition, staff is also recommending that the City Manager be authorized to take such actions and execute such documents and instruments as deemed necessary or desirable to implement the terms of the DDA and all attachments to the DDA and other documents as necessary and, upon satisfaction of all conditions and obligations of the Developer thereto and pursuant to the DDA, to transfer the subject site to the Developer Development Agreement The lack of certainty in the approval of development projects can escalate the cost of housing and discourage investment and comprehensive planning Approval of a Development Agreement provides assurance to a project applicant and to the approving agency that, upon approval of the project the project may proceed in accordance with existing policies rules and regulations, and subject to conditions of approval and also ensures that the City's desire objectives, goals, and policies are fulfilled MCAS Tustin Specific Plan Section 4 2 9 requires adoption of a development City Council Report November 6 2012 DDA 2012 002 DA 2012 002 CP 2012 003 DR 2012 005 Density Transfer, Density Bonus Page 9 agreement for all private development at Tustin Legacy Staff has prepared Development Agreement (DA) 2012 -002 for the proposed protect The DA will include but not be limited to, the following provisions The term of DA 2012 -002 will commence on the effective date and will continue for a term of five (5) years thereafter unless the term is terminated, modified or extended by circumstances set forth in DA 2012 002 (with the exception of the affordability component which shall last for a term of 55 years) The permitted use of the property, the density and intensity of use maximum height and size of proposed buildings the design, improvement and construction standard and specifications applicable to the development of the property and provisions for the reservation and dedication of land for public purposes, as set forth in the DDA and Existing Land Use Regulations which includes the City's General Plan, Tustin City Code, MCAS Tustin Specific Plan and all other ordinances resolutions rules, and regulations of the City governing the development and use of the property remain in effect as of the effective date of the DA • The Developer shall have a vested right to cant' out and develop the Property in accordance with the DDA Development Plan Existing Land Use Regulations, approved entitlements, and the provisions included in DA 21012 002 • The timing of development as set forth in the DDA • Construction of infrastructure and public facilities as set forth in the DDA • Annual review of Developer's performance • Agreement by the Developer to indemnify, defend, and hold harmless the City from any and all actions suits claims liabilities, etc • Agreement by the Developer to not oppose or contest any future creation or establishment by the City of Tustin of a landscape and lighting district, master maintenance association, assessment district or any other method or means consistent with the DDA determined by the City necessary for funding of the maintenance of the public right -of way landscape easements public parks or of the various municipal services and operating expenses associated with Tustin Legacy City Council Report November 6, 2012 DDA 2012 002, DA 2012 002, CP 2012 003, DR 2012 005 Density Transfer Density Bonus Page 10 State Government Code Section 65867 5 requires that a Development Agreement be approved by ordinance, which is an act solely reserved to the Tustin City Council based upon the following findings that the proposed development (a) Is consistent with the objectives policies general land uses and programs specified in the General Plan and the MICAS Tustin Specific Plan (except for any Concessions and Incentives authorized for the project by the Tustin City Council) (b) Is compatible with the uses authorized in district in which the real property is located (Planning Area 15) Note the proposed apartment project complies with the uses authorized by the MICAS Tustin Specific Plan (c) Is in conformity with the public necessity, public convenience general welfare and good land use practices Note the proposed provision of 225 affordable apartment units meets this goal (d) Will not be detrimental to the health safety and general welfare Note compliance with the MICAS Tustin Specific Plan, Tustin City Code, and other regulations will ensure that the project will not be detrimental in any way (e) Will not adversely affect the orderly development of property Note the proposed project is orderly and well designed (f) Will have a positive fiscal impact on the City Note the provisions of the proposed DDA DA and conditions of approval will ensure that the project will have a positive fiscal impact on the City Ordinance No 1423 has been prepared to support City Council approval of the requested Development Agreement 0 Concept Plan 2012 -003/ Design Review 2012 -005 The MICAS Tustin Specific Plan requires all development projects proposed within Planning Area 15 to obtain City Concept Plan and Design Review approval The Concept Plan process is intended to permit a developer to obtain early input on a project's design, site layout, etc , prior to creating more detailed plans that would be subject to Design Review However, the MCAS Tustin Specific Plan permits a developer to concurrently submit a Concept Plan and Design Review application The project's compliance with the City s Concept Plan and Design Review requirements is discussed below Concept Plan 2012 -003 The proposed project is a medium high density affordable apartment project that has City Council Report November 6 2012 DDA 2012 002 DA 2012 002 CP 2012 003 DR 2012 005 Density Transfer Density Bonus Page 11 incorporated Italianate design elements that includes technically sophisticated horizontal design elements and colors that visually reduce the scale of the structure to a residential pedestrian level, add warmth, and increase the residential feel of the project The protect proponent has suggested two options for the entry of the 4 -story structure (shown left of center on figure below) Staff recommends that the entry elevation identified as Option A, below, be approved since the arches shown in Option B do not appear on any other elevation on the project site •--• -° ENTRYELEVATION OPTION "B ENTRY ELEVATION OPTION A Budding D The project compiles with the requirements of the MICAS Tustin Specific Plan (except as authorized by any approved Concessions and Incentives discussed later in this report), and the following MICAS Tustin Specific Plan Concept Plan review criteria Specifically, the proposed protect depicts • Continuity and adequacy of all circulation systems, such as roads access points trails pedestrian ways and other infrastructure systems needed to serve the protect, • Continuity and design quality of architecture and renovations proposed as well as landscape and hardscape theme and treatments, • Satisfactory response to the urban design features specified in Chapter 2 and under each Planning Area in Chapter 3 (Note the proposed project is not changing master planned circulation utility traffic and related assumptions provided in Chapter 2 of the MICAS Tustin Specific Plan No specific design features are provided for multi - family developments In Chapter 3) • Conformity with the Non - Residential Land Use(Tnp Budget, including authorized adjustments (Note this criteria is not applicable since the project is a multi - family residential use) and • Compliance with other Specific Plan provisions (Note project compliance with MCAS Tustin development requirements is documented on the attached Land Use Fact Sheet provided as Attachment B except as identified within the "Concessions and Incentives section of this report) City Council Report November 6 2012 DDA 2012 002 DA 2012 002 Page 12 CP 2012 003 DR 2012 005 Density Transfer, Density Bonus Design Review 2012 005 The proposed protect includes 'y,�l• -- ��� UI_ 4r ,_ y Building C • Fourteen 3 -story buildings and one 4 -story building totaling 225 affordable apartment units • Several ancillary buildings including a community recreation building carports etc • 78 1- bedroom units (750 781 square feet) • 117 2- bedroom units (939 -1 104 square feet) • 30 3- bedroom units (1 327 square feet) The 3 -story structures are oriented along the perimeter of the site facing the adjacent streets and sidewalks, with the 4 -story structure pool and common area oriented in the center of the site The juxtaposition of the 3 -story buildings along the perimeter softens the height of the 4 story central structure, and creates visual interest in the buildings and views of the site utilizing a variety of horizontal and vertical changes in plane The project has Italianate design elements including concrete roof tiles earth -tone stucco, a variety of aesthetic enhancements including window treatments balconies cornices trim elements, and incorporating varied colors, materials and finishes The protect is proposed to share a driveway access from Park Avenue that would also serve as the access for the adjacent 4 706 public park 434 parking spaces are being provided including 225 covered parking spaces The proposed project's design satisfies the following general architectural and site design principles in that • The buildings define and relate to the street edge with architecture to face the streets • The buildings interface with adjacent residential uses • The architecture is technically sophisticated in detailing • There is a rich palette of natural materials and textures • The architecture proposes visually interesting facade treatments with distinctive architectural elements and design details • The project utilizes varied setbacks, projections, roof lines windows and reveals, and elements that minimize the impact of the building mass • The buildings are designed with traditional forms accented by unique architectural shapes and details • The buildings reflect high quality design through the incorporation of coordinated architecture utilizing elements materials and colors that complement the relaxed informal style • The buildings incorporate smaller -scale architectural details such as porches bays, recessed or projecting balconies and dormers to visually reduce the height and scale of the budding City Council Report November 6 2012 DDA 2012 002 DA 2012 002 CP 2012 003 DR 2012 005 Density Transfer, Density Bonus Page 13 The buildings utilize varied building heights Budding fapade articulation is implemented The project complies with the requirements of the MCAS Tustin Specific Plan (except as authorized by any approved Concessions and Incentives discussed later in this report) In addition the proposed project's location, size, architectural features and general appearance is orderly and harmonious development of the area, the present or future development therein the occupancy thereof or the community as a whole based upon a consideration of the following criteria (1) Height, bulk and area of buildings (2) Setbacks and site planning (3) Exterior materials and colors (4) Type and pitch of roofs (5) Size and spacing of windows doors and other openings (6) Towers, chimneys, roof structures, flagpoles radio and television antennas (7) Landscaping parking area design and traffic circulation (8) Location height and standards of exterior illumination (9) Location and appearance of equipment located outside of an enclosed structure (10) Location and method of refuse storage (11) Physical relationship of proposed structures to existing structures in the neighborhood (12) Appearance and design relationship of proposed structures to existing structures and possible future structures in the neighborhood and public thoroughfares (13) Proposed signing (to be submitted for staff review following project approval) (14) Development guidelines and criteria as may be adopted by the City Council Also community gates are proposed for the project Staff believes that the use of gates for this project is supportable since the project is of a higher density is in close proximity to the park, and surrounded by streets on all sides A condition of approval has been included to ensure Police and Fire personnel ease of access Section 3 13 1 G of the MCAS Tustin Specific Plan provides specific design criteria that must be considered before approving a community gate, which staff believes have been met by the proposed project Gates which limit or control access to parking areas require special consideration, as their design can significantly impact the parking demand and usage and the vehicular circulation on a site Gates shall be designed in accordance with City standards and guidelines and shall require approval through the Design Review process The applicant shall submit to the City a plan addressing the following issues 1 Type and operation of the gate including location of visitor call box 2 Adequacy of vehicle stacking area at gate including vehicle turn - around area City Council Report November 6 2012 DDA 2012 002 DA 2012 002 Page 14 CP 2012 003 DR 2012 005 Density Transfer Density Bonus 3 Effect of gate on parking usage and distribution on -site 4 Effect of gate on parking for surrounding or adjacent areas 5 Effect of gate on street operations at the entrances to the gated street The applicant has submitted to the City a plan that adequately addresses the above gate related issues (see gate design study provided as Attachment 2 of proposed Resolution No 12 96) Density Transfer The Request for Proposal (RFP) circulated by the City for the Disposition Package 2A and 1A North sites specifically required development proposals to include the certain number of affordable units identified below RFP ALLOCATION 1A North 2A Totals Very Low 35 53 88 Low 20 53 73 Moderate 50 51 101 Sub Total 105 157 262 Market 120 376 496 Total 225 533 758 The proposed project requests City Council approval of a density transfer St Anton Partners has partnered with The Irvine Company LLC (a respondent - developer approved by the City of Tustin to develop 533 apartments within Disposition Package 2A in Planning Area 13, Neighborhood D of Tustin Legacy) in this effort The St Anton /Irvine Company proposal requests the transfer of 120 of 157 affordable housing units from Disposition Package 2A to Disposition Package 1A -North with 120 market rate units to be transferred from Disposition Package 1A -North to Disposition Package 2A If the request to transfer units is approved by the Tustin City Council, Disposition Package 1A -North would ultimately result in the development of 225 affordable residential apartment units (88 very low income 73 low income and 64 moderate Income) and Disposition Package 2A would ultimately result in the development of 533 residential apartment units, Including 37 moderate income units and 496 market rate units (for a total of 533 residential apartment units) The total proposed allocation of units for Disposition Packages 1A -North and 2A is as follows PROPOSED ALLOCATION 1A North 2A Totals Very Low 88 0 88 Low 73 0 73 Moderate 64 37 101 Sub Total 225 37 262 Market 0 496 496 Total 225 533 758 St Anton Partners has extensive experience owning and operating affordable apartment communities Staff believes that the currently proposed Density Transfer is an Innovative approach to providing a significant number of affordable units at Tustin Legacy Density Transfers may only be approved by the Tustin City Council Consequently staff is recommending that the City Council approve the requested Density Transfer with a condition City Council Report November 6, 2012 DDA 2012 002, DA 2012 002, Page 15 CP 2012 003, DR 2012 005, Density Transfer, Density Bonus that St Anton Partners and The Irvine Company enter into an Affordable Housing /Regulatory Agreement with the City of Tustin to ensure availability of the 225 and 37 affordable apartment units (respectively) for 55 years City Council approval of Resolution No 12 94 would authorize the Tustin City Manager to execute the Affordable Housing /Regulatory Agreement on behalf of the City (Attachment G) Density Bonus, Concessions and Incentives The protect partners are cumulatively proposing the development of 262 Very Low Low and Moderate Income affordable units representing 46 percent of the total proposal (568 units pre - Density Bonus) and 306 market rate units Pursuant to state density bonus law (California Government Code Section 65915(1)), the applicants have requested City of Tustin approval for 190 density bonus units as summarized below St Anton /Irvine Company Proposal Type Proposed Very Low 88(16%) Low 73(13%) Moderate 101 18 Market 306(53%) Total 568 Densq Bonus Units 190 Grand Total 758 MCAS Tustin Specific Plan Section 3 9 2 1 requires the development of affordable housing units within Planning Area 15 including Disposition Package 1A -North The Specific Plan currently requires 257 affordable units within Planning Area 15 The proposed protect is the first development within Planning Area 15 and proposes a significant portion (105 units) of the 257 - unit requirement (Note 120 affordable units /120 market -rate units are proposed to be exchanged between Disposition Package 1A North and Disposition Package 2A, respectively) If the current proposal is approved future development projects in Planning Area 15 would be required to address the remaining 152 -unit affordable housing requirement Affordable housing units are also required to be reasonably dispersed and located in attached projects only In addition affordable units must be compatible with the design and use of market rate units in appearance use of materials and finished quality As noted previously approved rental affordable projects must also be restricted by agreements or covenants to ensure that they remain available to low- income households for a minimum of 55 years Tustin City Council approval of the previously discussed Density Transfer request would result in a 225 -unit affordable housing proposal for Disposition Package 1A -North (100 percent affordable) However, when considered in the context of the overall reuse project at Tustin Legacy and Planning Area 15 as a whole, and given St Anton's expertise in operating affordable communities staff believes that the proposed project should be supported as meeting the reasonably dispersed requirement for the provision of affordable housing Density Bonus California Government Code Section 65915(1) established regulations concerning the granting of a density bonus, and associated incentives and concessions in order to eliminate zoning City Council Report November 6 2012 DDA 2012 002 DA 2012 002 CP 2012 003 DR 2012 005 Density Transfer Density Bonus Page 16 constraints or restrictions that inhibit the production of affordable housing In compliance with Section 65915(1) the proposed project is also subject to Tustin City Code Section 9121(a) which states "The City shall grant one (1) density bonus and a concession(s) or incentive(s) when an applicant seeks and agrees to construct [an affordable] housing development ' Tustin City Code Section 9122(1) provides a formula for calculating the amount of density bonus to which an applicant is entitled which varies by the percentage of affordable housing units proposed However Tustin City Code Section 9122 authorizes the City to grant a maximum density bonus only up to 35 percent The formula calculation for the proposed density bonus is summarized below Proposal 161 Very Low /Low Income Units _ 568 total units = 28 3% or 29% (rounded up) Formula 20% for first 10% + 1 5% for each additional 1 % afford Max 35% Calculation 20% + 29% (19% X 1 5 %) = 49% !Maximum permitted = 35% MCAS Tustin Table 3 2 indicates that Planning Area 15 is authorized for up to 192 medium -high density residential units (16 -25 dwelling units per acre) while the Irvine Company project in Planning Area 13 is authorized for 376 medium -high density residential units St Anton has requested a Density Bonus of 33 units and The Irvine Company has requested a density bonus of 157 units (cumulatively a 33 percent density bonus) The City must support density bonus requests concessions or incentives when projects provide affordable housing units in compliance with California Government Code Section 65915(1), as authorized under Tustin City Code Section 9123 The proposed St Anton residential development in PA 15 is for 225 Medium High Density units, which will generate 1 492 Average Daily Trips In comparison the total number of residential units allowed in PA 15 is 1,214 units, which will generate a total of 10 287 Average Daily Trips Therefore, the proposed project is within the development threshold for PA 15 and a Traffic Study or additional analysis is not warranted for this project Concessions and Incentives As previously noted the proposed project is subject to Tustin City Code Section 9121(a) which states "The City shall grant one (1) density bonus , and a concession(s) or incentive(s) when an applicant seeks and agrees to construct [an affordable] housing development Incentives and concessions are also intended to facilitate the development of affordable housing by eliminating zoning constraints or restrictions, etc that inhibit affordable housing Incentives or concessions may include a reduction of site development standards or a modification of zoning code requirements or architectural design requirements including, but not limited to • Reduced minimum lot size • Reduced minimum setbacks • Reduced minimum street standards such as reduced minimum street width • Increased maximum lot coverage • Increased building height City Council Report November 6 2012 DDA 2012 002 DA 2012 002 CP 2012 003 DR 2012 005 Density Transfer Density Bonus Page 17 • Reduced ratio of vehicular parking spaces that would otherwise be required • Other regulatory incentives or concessions proposed by the applicant or the City that result in identifiable financially sufficient and actual cost reductions Tustin City Code Section 9123b provides a formula for calculating the number of concessions and incentives that may be granted to a proposed protect Pursuant to Section 9123b, any proposal that includes over 15 percent Very Low Income units may request up to the three (3) incentives The protect proposes to construct 88 Very Low Income units out of 568 total units (16 percent rounded up) which qualifies the project for three (3) incentives /concessions Also Tustin City Code Section 9125 permits the City Council to grant additional assistance to ensure that the development of affordable housing is facilitated, including the granting of additional incentives Pursuant to Tustin City Code Section 9123, the City must grant the concession(s) or incentive(s) requested by the applicant unless the City makes a written finding, based upon substantial evidence of either of the following (1) The concession(s) or incentive(s) is not required in order to provide for affordable housing costs or for affordable housing rent for the target units (2) The concession(s) or incentive(s) would have a specific adverse impact as defined in Government Code Section 65589 5 subdivision (d) paragraph (2), upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low and moderate income households (3) The concession or incentive would be contrary to state or federal law Specifically, the applicant is requesting the following concessions and incentives for the proposed project Parking The applicant requests authorization to provide 434 parking spaces on site instead of the 467 spaces required by the WAS Tustin Specific Plan The applicant also requests the use of 88 compact spaces (compact spaces are prohibited from meeting a residential parking requirement by the WAS Tustin Specific Plan) Also, 225 covered parking spaces are being provided instead of the 372 carports and garages required by the code 210 parking spaces are proposed to be uncovered St Anton has prepared a parking demand analysis (see parking study and gate analysis provided as Attachment 2 to proposed Resolution No 12 -96 (Attachment E) that supports the 434 parking spaces provided will adequately meet the demand given the project's size and bedroom mix Common Open Space /Private Open Space The applicant requests authorization to reduce the amount of on -site Common Open Space The MCAS Tustin Specific Plan requires 400 square feet per dwelling unit (90,000 square feet) The project proposes to provide 87 822 square feet of common open space in designated recreational areas The project also includes 14 595 square feet in private attached ground level patios and balconies but the MCAS Tustin Specific Plan requires such space to be open on three City Council Report November 6, 2012 DDA 2012 002, DA 2012 002, CP 2012 003, DR 2012 005, Density Transfer Density Bonus Page 18 sides to count as common open space It should be noted that staff is recommending that the proposed project be conditioned to require the project applicant to improve the adjacent 4 706 acre public park site Upon completion of the proposed improvements, staff believes that protect residents will be uniquely afforded the opportunity to utilize a significant amount of nearby open space (Note while a reduction is being requested it should be recognized that, through the DDA process, the developer is being required to improve the adjacent 4 706 acre site for use as a public park (204,993 square feet of common open space) which should be considered a part of the protect) Setbacks The applicant requests authorization to reduce the required setback on Park Avenue The applicant is requesting that proposed buildings and structures be allowed to encroach 4 -12 feet into the MCAS Tustin Specific Plan required 30 foot building setback Encroaching into the setback allows for larger and more functional primary recreational area and more pedestrian connectivity throughout the site Building Height The applicant requests authorization to exceed the 45 foot maximum building height for Planning Area 15 Although a majority of the proposed buildings are in conformance the four story recreation and mixed use building includes architectural elements which exceed the standard On average the budding is 48 feet in height and the architectural accent elements are 62 feet in height It should be noted that the four - story structure is in the center of the project site and is surrounded by three story buildings along the site's perimeter Staff believes that the four -story buildings site placement and distance from surrounding lots and the right of -way diminishes the scale of the structures and ensures a variety of vertical and horizontal architectural elements that promotes visual interest in the project Based upon the fact that the protect is proposing a very significant number of affordable units at the site (262 of the 568 total units - 46 percent of the pre density bonus unit total), staff is recommending that the City Council approve a fourth incentive Staff believes that the currently proposed Density Bonus, Concessions and Incentives support the development of affordable housing at Tustin Legacy and should be supported Density Bonus Concessions and Incentives may only be approved by the Tustin City Council Resolution 12 -94 has been prepared to support City Council approval of the requested Density Bonus Concessions and Incentives with a condition that St Anton Partners and The Irvine Company enter into an Affordable Housing Agreement and Regulatory Agreement with the City of Tustin to ensure availability of the 225 and 37 affordable apartment units (respectively) for 55 years Housing Authority Review and Approval On March 15 2011, the Tustin City Council adopted Resolution No 11 -20 establishing the Tustin Housing Authority pursuant to California Housing Authorities Law (Health and Safety Code section 34200 et seq ) On January 17, 2012, City Council adopted Resolution No 12 -08 stating that the Housing Authority would assume all rights powers, assets, duties, and obligations associated with the housing activities of the former Redevelopment Agency and authoring the City Manager to take such other and further actions and sign such other and further documents, as are necessary and proper to implement Resolution 12 -08 City Council Report November 2012 DDA 2012 002 DA 2012 002, CP 2012 003 DR 2012 005 Density Transfer Density Bonus Page 19 The Housing Authority has certain responsibilities for monitoring and enforcing provisions of the City's affordable housing agreement — the Declaration of Affordable Housing Covenants and Regulatory Agreement (the 'Regulatory Agreement ") The Regulatory Agreement complies with IRS guidelines involving tax credit - funded affordable housing projects and the circumstances under which eviction of a very low income and low income tenant would be considered The Regulatory Agreement allows moderate income tenants a one year review period after an initial determination the tenant is no longer Income eligible If after one year the tenant is still over Income they would be given six months to move Into market rate housing City Council approval of the proposed project requires St Anton Partners and City of Tustin to execute such an Agreement City Manager execution of the document is authorized by Resolution No 12 -99 Tustin Housing Authority authorization Is requested to direct the Executive Director or City Manager to execute the Agreement on behalf of the Tustin Housing Authority Planning Commission Action of October 9, 2012 On October 9 2012 the Tustin Planning Commission conducted a public hearing and adopted Resolution No 4205 recommending that the Tustin City Council approve the project, as conditioned (Attachment 1) The project is consistent with the Tustin City Code MCAS Tustin Specific Plan, and the June 19, 2012 Exclusive Negotiation Agreement (ENA) between The Irvine Company and the Tustin City Council ,Tohn)Buchanan ram Manager Dana L Ogdon, AICP Assistant Director �s�� Elizabeth A Blnsack Community Development Director Attachments A Location Map B Land Use Fact Sheet C Submitted Plans and Photographs (enclosed) D MCAS Tustin Specific Plan (not included — see CDD website) E Resolution No 12 96 Environmental Analysis Checklist/Evaluation Attachment 1 Noise Study Attachment 2 Gate Design Study F Resolution No 12 99 DDA 2012 002 G Resolution No 12 94 CP 2012 003 DR 2012 005 Density Transfer Density Bonus, Concessions or Incentives Exhibit A Conditions of Approval Attachment 1 Housing Covenants and Regulatory Agreement H Ordinance No 1423 DA 2012 002 1 Planning Commission Resolution No 4205 and approved Minutes Attachment A Location Map a Ana ••Ci. f r c i J ``i :i E 4th St E 1st St • 1 55 I S Grand Ave E Edmgei Ave E Warner Ave f55! Sao, ANA G % Drs .2- East Tustin Irvine Blvd TL.Sln 9,a00h ltd ci- le TU$jII t z Browning o S ports IF Vry +o 1 261 x Tustin Legacy I t'ro�ect s ��0, Site 4 !`' �- * hur Blvd John Wayne Airper 4y� The Distnct at Tustin Leg le I „ I ry i n e Vsnn Dr .p Location Map Lek,, Irvine b valley nllrr�e 2C14 Nok.s S M =c Microsoft CoVmatpr Attachment B Land Use Fact Sheet LAND USE APPLICATION FACT SHEET 1. LAND USE APPLICATION NUMBER(S): DR 2012 -005, CP 2012 -003, DA 2012 -002, Density Transfer, and Density Bonus 2. LOCATION: Disposition Package 1A -North, Tustin Legacy 3. APN(S): 430 -381- 09, 10, and 11 4. PREVIOUS OR CONCURRENT APPLICATION RELATING TO THIS PROPERTY: The Irvine Company proposed development of Disposition Package 2A, Tustin Legacy (DR 2012 -004, CP 2012 -002, DA 2012- 001, Density Transfer, Density Bonus, and PM 2012 -136). 5. SURROUNDING LAND USES: NORTH: Vacant SOUTH: Vacant EAST: Vacant WEST: Vacant 6 SURROUNDING ZONING DESIGNATION: NORTH: Planning Area 15, Residential Core, MCAS Tustin Specific Plan SOUTH: Planning Area 15, Residential Core, MCAS Tustin Specific Plan EAST: Planning Area 15, Residential Core, MCAS Tustin Specific Plan WEST: Planning Area 8, Community Core, MCAS Tustin Specific Plan 7. SURROUNDING GENERAL PLAN DESIGNATION: NORTH: MCAS Tustin Specific Plan SOUTH: MCAS Tustin Specific Plan EAST: MCAS Tustin Specific Plan WEST: MCAS Tustin Specific Plan 8. SITE LAND USE EXISTING PROPOSED Use: Vacant 225 Affordable Residential Apartment Units. Zoning: Area 15 Residential Core MCAS No Change Tustin Specific Plan General Plan: MCAS Tustin Specific Plan No Change DEVELOPMENT FACTS: REQUIRED PROPOSED 9. LOT AREA: 556 653 sq. ft.. 12.779 ACRES 10. BUILDING LOT COVERAGE. 65 percent MAX. PERMITTED 32% PROPOSED 11. SITE LANDSCAPING: All areas not utilized REQUIRED 27% PROPOSED 12. OPEN SPACE: 90 000 REQUIRED 87822 PROPOSED* 13. PARKING. 467 REQUIRED 434 PROPOSED" 14. BUILDING HEIGHT: 45 feet MAX. PERMITTED 62 feet PROPOSED* 15. BUILDING SETBACKS: REQUIRED PROPOSED FRONT: 30 feet (Tustin Ranch Road) 30 feet minimum (Varies) SIDE: 30 feet (Park Avenue) 18 -26 feet minimum (Varies)* REAR: 20 feet (Legacy Road) 10 feet minimum (Varies) 16. OTHER UNIQUE CONDITIONS ASSOCIATED TO THE PROPERTY (I.E. SPECIAL STUDY ZONES, EASEMENTS, ETC.) None * Concessions requested per the Density Bonus Application. Forms: LandUseApplicationFactSheet Attachment C Submitted Plans and Photographs (Enclosed) Attachment D MCAS Tustin Specific Plan (not included — see CDD web site) Attachment E Resolution No. 12 -96 Environmental Analysis /Checklist RESOLUTION NO. 12 -96 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, FINDING THAT THE FINAL JOINT PROGRAM MCAS ENVIRONMENTAL IMPACT STATEMENT /ENVIRONMENTAL IMPACT REPORT (MCAS TUSTIN FEIS /EIR), AS AMENDED BY SUPPLEMENT AND ADDENDUM, IS ADEQUATE TO SERVE AS THE PROJECT ENVIRONMENTAL DOCUMENT FOR THE THIRD AMENDMENT FOR DISPOSITION AND DEVELOPMENT AGREEMENT (DDA) 2012 -002, DEVELOPMENT AGREEMENT (DA) 2012 -002, CONCEPT PLAN (CP) 2012 -003, DESIGN REVIEW (DR) 2012 -005, DENSITY TRANSFER, DENSITY BONUS, AND CONCESSIONS OR INCENTIVES AUTHORIZED UNDER TUSTIN CITY CODE SECTION 9123 RELATED TO THE PROVISION OF AFFORDABLE HOUSING UNITS IN COMPLIANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65915(1) FOR PROPOSED DEVELOPMENT OF TUSTIN LEGACY DISPOSITION PACKAGE 1A -NORTH — 225 AFFORDABLE MULTI - FAMILY RESIDENTIAL APARTMENT HOMES, TUSTIN LEGACY (ST. ANTON PARTNERS, LLC). AND THAT THE CITY HAS ALTERNATIVELY DETERMINED THAT THE PROPOSED PROJECT IS EXEMPT FROM FURTHER CEQA REVIEW PURSUANT TO GOVERNMENT CODE SECTION 65457. The City Council of the City of Tustin does hereby resolve as follows: The City Council finds and determines as follows: A. That St. Anton Partners and City of Tustin have completed and desire to enter into Disposition and Development Agreement 2012 -002, and St. Anton Partners has submitted a proper application for DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus requesting authorization to develop 225 affordable residential apartment housing units in compliance with California Government Code Section 65915(1) required for the proposed development of Tustin Legacy Disposition Package 1A -North, to be implemented by St. Anton Partners or its affiliate as may be approved by the City of Tustin. B. That the site is zoned as Planning Area 15, Community Residential, Neighborhood G in the MCAS Tustin Specific Plan (SP -1); and designated MCAS Tustin (MCAS) by the Tustin General Plan. In addition, the project has been reviewed for consistency with the Air Quality Sub - element of the City Council Resolution No. 12 -96 Page 2 City of Tustin General Plan and has been determined to be consistent with the Air Quality Sub - element. C. That on January 16, 2001, the City of Tustin Certified the Program Final Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the disposal and reuse of MCAS Tustin pursuant to, among other things, the MCAS Tustin Specific Plan /Reuse Plan. On December 6, 2004, the City Council adopted Resolution No. 04 -76 approving the Supplement to the FEIS /EIR for the extension of Tustin Ranch Road between Walnut Avenue and the future alignment of Valencia North Loop Road. On April 3, 2006, the City Council adopted Resolution No. 06 -43 approving an Addendum to the FEIS /EIR for modifications to the MCAS Tustin Specific Plan /Reuse Plan. The FEIS /EIR, Supplement to the FEIS /EIR, and Addendum are collectively referred to as the "Prior Environmental Review." D. That the City prepared an environmental checklist and determined that the proposed project is within the scope of the Prior Environmental Review. There are no substantial changes in the project requiring major revisions to the Prior Environmental Review, substantial changes with respect to the circumstances under which the project is being undertaken which will require major revisions to the Prior Environmental Review, or any new information which was not known and could not have been known at the time the Prior Environmental Review was certified showing that: (1) the project will have any new significant effects; (2) significant effects previously examined will be substantially more severe; (3) mitigation measures or alternatives previously determined to be infeasible will now be feasible and would substantially reduce one or more significant effects of the project but the City declined to adopt the mitigation measure or alternative; or (4) mitigation measures or alternatives considerably different from those previously analyzed would substantially reduce one or more significant effects on the environment, but the City declined to adopt the mitigation measure or alternative. (Public Resources Code § 21166; Cal. Code Regs., Tit. 14, §§ 15168, 15162.) The City has therefore determined that no further environmental review is required. E. That Government Code Section 65457, subdivision (a), establishes a statutory CEQA exemption for any residential development project, including any subdivision, or zoning change that is undertaken to implement and is consistent with a specific plan for which an EIR was certified after January 1, 1980. The exemption does not apply if an event specified in Public Resources Code Section 21166 occurs, unless and until a supplemental environmental impact report is certified. Here, the proposed project implements and is consistent with the MCAS Tustin Specific Plan / Reuse Plan. The FEIS /EIR for the reuse of MCAS Tustin City Council Resolution No. 12 -96 Page 3 pursuant to, among other things, the MCAS Tustin Specific Plan /Reuse Plan, was certified January 16, 2001. And, as set forth above, the City prepared an environmental checklist and determined that none of the events specified in Public Resources Code Section 21166 have occurred. On this basis, the City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457. F. That in accordance with the provisions of the California Environmental Quality Act (CEQA), the checklist provided as Attachment 1 to Resolution No. 12 -96 has been considered and found to be complete and adequate prior to approving the project as proposed. G. That on October 16, 2012, the Tustin City Council continued the matter to an adjourned regular meeting on October 30, 2012. H. That on October 30, 2012, the Tustin City Council continued the matter to a regular meeting on November 6, 2012. II. The Tustin City Council hereby finds the Project is within the scope of the previously approved MCAS Tustin Final Program EIS /EIR previously certified on January 16, 2001, as amended by Supplement and Addendum and that no new effects could occur and no new mitigation measures would be required and an additional environmental analysis, action or document is not required by the CEQA. The City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457. PASSED AND ADOPTED by the City Council of the City of Tustin at an adjourned regular meeting held on the 6th day of November, 2012. JOHN NIELSEN MAYOR ATTEST: PAMELA STOKER CITY CLERK City Council Resolution No. 12 -96 Page 4 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 12 -96 was duly passed and adopted at an adjourned regular meeting of the Tustin City Council, held on the 6th day of November, 2012, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK Attachment 1 COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 92780 (714) 573 -3100 ENVIRONMENTAL ANALYSIS CHECKLIST For Projects With Previously Certified /Approved Environmental Documents: Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for the Disposal and Reuse of Marine Corps Air Station (MCAS) Tustin The following checklist takes into consideration the preparation of an environmental document prepared at an earlier stage of the proposed project. This checklist evaluates the adequacy of the earlier document pursuant to Section 15162 and 15168 of the California Environmental Quality Act (CEQA) Guidelines. A. BACKGROUND Project Title(s): Proposed development of Tustin Legacy Disposition Package 1A -North — 225 affordable multi - family residential apartment homes. The proposal requests City of Tustin consideration of Development Agreement (DA) 2012 -002, Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123 related to the provision of affordable residential apartment housing units in compliance with California Government Code Section 65915(1) required for the proposed development of Tustin Legacy Disposition Package 1A -North. Lead Agency: City of Tustin, 300 Centennial Way, Tustin, California 92780 Lead Agency Contact Person: Dana L. Ogdon, AICP Phone: (714) 573 -3109 Project Location: Disposition Package 1A -North is an irregular parcel with 8.073 acres for multi- family development and 4.706 acres for park development (12.779 acres gross), within Planning Area 15, MCAS- Tustin Specific Plan (Tustin Legacy), bounded by future Tustin Ranch Road on the east, future Legacy Road on the north, future Park Avenue on the west, and a vacant parcel to the south. Project Sponsor's Name and Address: St. Anton Partners c/o Mr. Steven L. Eggert, 4630 Campus Drive, Suite 111 Newport Beach, CA 92660 General Plan Designation: MCAS Tustin Specific Plan Zoning Designation: Project Description: MCAS Tustin Specific Plan, Residential Core, Planning Area 15, which allows Medium -High Density Residential at 16 -25 dwelling units per acre. Development Agreement (DA) 2012 -002, Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005, Density Transfer, Density Bonus, and Concessions or Surrounding Uses: Incentives authorized under Tustin City Code Section 9123 related to the provision of affordable housing units in compliance with California Government Code Section 65915(1)(MCAS Tustin Planning Area 15) for the purpose of developing 225 multi- family residential apartment homes including 105 affordable units (35 very low income, 20 low income and 50 moderate income), which qualifies the project for a density bonus concessions or incentives authorized under Tustin City Code Section 9123 related to the provision of affordable housing units in compliance with California Government Code Section 65915(1). In addition, the project applicant has partnered with The Irvine Company, LLC, a developer approved by the City of Tustin to develop Disposition Package 2A in Planning Area 13, and requested the transfer of 120 of the 157 affordable housing units from Disposition Package 2A to Disposition Package 1A -North with 120 market rate units requested to be transferred from Disposition Package 1A -North to Disposition Package 2A. Should the Tustin City Council approve the transfer request, the proposed development of Disposition Package 2A would include 37 moderate unit income units and 496 market rate units (for a total of 533 residential apartment units), and the proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. North/East: Vacant — MCAS Tustin Planning Area 15, Residential Core. West: Vacant — MCAS Tustin Planning Area 8, Community Core South: Vacant — MCAS Tustin Planning Area 15, Residential Core Previous Environmental Documentation: On January 16, 2001, the City of Tustin certified the Program Final Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the reuse and disposal of MCAS Tustin. On December 6, 2004, the City Council adopted Resolution No. 04 -76 approving a Supplement to the FEIS /EIR for the extension of Tustin Ranch Road between Walnut Avenue and the future alignment of Valencia North Loop Road. On April 3, 2006, the City Council adopted Resolution No. 06 -43 approving an Addendum to the FEIS /EIR. The FEIS/EIR along with its Supplemental and Addendum is a program EIR under the California Environmental Quality Act (CEQA). The FEIS /EIR, Supplemental and Addendum considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin. 13. ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact" as indicated by the checklist in Section D below. Land Use and Planning Population and Housing Geology and Soils Hydrology and Water Quality Air Quality Transportation & Circulation Biological Resources Mineral Resources Agricultural Resources ❑Hazards and Hazardous Materials Noise ❑Public Services [Utilities and Service Systems [Aesthetics [Cultural Resources Recreation ❑Mandatory Findings of Significance C. DETERMINATION: On the basis of this initial evaluation: ❑ I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. ❑ I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A NEGATIVE DECLARATION will be prepared. ❑ I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. n I find that the proposed project MAY have a significant effect(s) on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets, if the effect is a "Potentially Significant Impact" or "Potentially Significant Unless Mitigated." An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. ® I find that although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects 1) have been analyzed adequately in an earlier EIR pursuant to applicable standards, and 2) have been avoided or mitigated pursuant to that earlier EIR, including revisions or mitigation measures that are imposed upon the proposed project. ❑ I find that although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects 1) have been analyzed adequately in an earlier NEGATIVE DECLARATION pursuant to applicable standards, and 2) have been avoided or mitigated pursuant to that earlier NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project. Dana L Ogdon, AICP, A Elizaseth A. Binsack, Community Development Director D. EVALUATION OF ENVIRONMENTAL IMPACTS See Attached Date: /Obi/ 7� Date /d /`J�� EVALUATION OF ENVIRONMENTAL IMPACTS I. AESTHETICS — Would the project: a) Have a substantial adverse effect on a scenic vista? b) Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual character or quality of the site and its surroundings? d) Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area? 11. AGRICULTURE RESOURCES: In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an optional model to use in assessing impacts on agriculture and farmland. Would the project: a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non- agricultural use? b) Conflict with existing zoning for agricultural use, or a Williamson Act contract? c) Involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland, to non - agricultural use? 111. AIR QUALITY: Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: a) Conflict with or obstruct implementation of the applicable air quality plan? b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation? c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non- attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial pollutant concentrations? e) Create objectionable odors affecting a substantial number of people? No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ csi ❑ ❑ ❑ ❑ irsi ❑ ❑ ❑ ❑ El ❑ ❑ ❑ ❑ El ❑ ❑ El ❑ ❑ El IV. BIOLOGICAL RESOURCES: - Would the project: a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? c) Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? t) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? V. CULTURAL RESOURCES: - Would the project: a) Cause a substantial adverse change in the significance of a historical resource as defined in § 15064.5? b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to § 15064.5? c) Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? d) Disturb any human remains, including those interred outside of formal cemeteries? VI. GEOLOGY AND SOILS: - Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involving: No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ i) Rupture of a known earthquake fault, as delineated on the most recent Alquist - Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. ii) Strong seismic ground shaking? iii) Seismic - related ground failure, including liquefaction? iv) Landslides? b) Result in substantial soil erosion or the loss of topsoil? c) Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off -site landslide, lateral spreading, subsidence, liquefaction or collapse? d) Be located on expansive soil, as defined in Table 18 -I -B of the Uniform Building Code (1994), creating substantial risks to life or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative wastewater disposal systems where sewers are not available for the disposal of waste water? VII.HAZARDS AND HAZARDOUS MATERIALS: Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials? b) Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one - quarter mile of an existing or proposed school? d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? t) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ ❑ ❑ zi ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ zi ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? VIII. HYDROLOGY AND WATER QUALITY: — Would the project: a) Violate any water quality standards or waste discharge requirements? b) Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre- existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? c) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on- or off -site? d) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on- or off -site? e) Create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? f) Otherwise substantially degrade water quality? g) Place housing within a 100 -year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? h) Place within a 100 -year flood hazard area structures which would impede or redirect flood flows? i) Expose people or structures to a significant risk of loss, injury or death involving flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mudflow? IX. LAND USE AND PLANNING — Would the project: a) Physically divide an established community? No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ El ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ El ❑ ❑ ro No Substantial New More Change From Significant Severe Previous b) Conflict with any applicable land use plan, policy, or Impact Impacts Analysis regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? ❑ ❑ c) Conflict with any applicable habitat conservation plan or natural community conservation plan? ❑ ❑ X. MINERAL RESOURCES — Would the project: a) Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the state? ❑ ❑ b) Result in the loss of availability of a locally - important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? ❑ ❑ XI. NOISE — Would the project result in: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? ❑ ❑ b) Exposure of persons to or generation of excessive groundbome vibration or groundbome noise levels? ❑ ❑ c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? ❑ ❑ d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? ❑ ❑ e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? ❑ ❑ t) For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excess noise levels? ❑ ❑ XII.POPULATION AND HOUSING — Would the project: a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? ❑ ❑ b) Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere? ❑ ❑ c) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? XIII. PUBLIC SERVICES a) Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services: Fire protection? Police protection? Schools? Parks? Other public facilities? XIV. RECREATION — a) Would the project increase the use of existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? b) Does the project include recreational facilities or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment? XV.TRANSPORTATION /TRAFFIC — Would the project: a) Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i.e. result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? d) Substantially increase hazards due to a design feature (e.g. sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency access? 0 Result in inadequate parking capacity? No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ El ❑ ❑ ❑ ❑ El ❑ ❑ El ❑ ❑ El ❑ ❑ El ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ g) Conflict with adopted policies, plans, or programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? XVI. UTILITIES AND SERVICE SYSTEMS — Would the project: a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? e) Result in a determination by the wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes and regulations related to solid waste? XVII. MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self - sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have impacts that are individually limited, but cumulatively considerable? ( "Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects)? c) Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly? No Substantial. New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ EVALUATION OF ENVIRONMENTAL IMPACTS DEVELOPMENT AGREEMENT (DA) 2012 -002, CONCEPT PLAN (CP) 2012 -003, DESIGN REVIEW (DR) 2012 -005, DENSITY TRANSFER, DENSITY BONUS, AND CONCESSIONS OR INCENTIVES AUTHORIZED UNDER TUSTIN CITY CODE SECTION 9123 RELATED TO THE PROVISION OF AFFORDABLE HOUSING UNITS IN COMPLIANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65915(1). BACKGROUND On January 16, 2001, the City of Tustin certified the Program Final Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the reuse and disposal of MCAS Tustin. On April 3, 2006, the City Council adopted Resolution No. 06 -43 approving an Addendum to the FEIS /EIR. And, on December 6, 2004, the City Council adopted Resolution No. 04 -76 approving a Supplement to the FEIS /EIR for the extension of Tustin Ranch Road between Walnut Avenue and the future alignment of Valencia North Loop Road (collectively, "Prior Environmental Review "). The FEIS /EIR along with its Addendum and Supplement is a program EIR under the California Environmental Quality Act (CEQA). The FEIS /EIR, Addendum and Supplement considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin. The FEIS /EIR, Addendum and Supplement analyzed the environmental consequences of the Navy disposal and local community reuse of the MCAS Tustin site per the Reuse Plan and the MCAS Tustin Specific Plan /Reuse Plan (referred to in this document as the Specific Plan). The CEQA analysis also analyzed the environmental impacts of certain "Implementation Actions" that the City of Tustin and City of Irvine must take to implement the MCAS Tustin Specific Plan. The MCAS Tustin Specific Plan proposed and the FEIS /EIR analyzed a multi -year development period for the planned urban reuse project (Tustin Legacy). When individual discretionary activities within the Specific Plan are proposed, the lead agency is required to examine the individual activities to determine if their effects were fully analyzed in the FEIS /EIR. The agency can approve the activities as being within the scope of the project covered by the FEIS /EIR. If the agency finds that pursuant to Sections 15162, 15163, 15164, and 15183 of the CEQA Guidelines no new effects would occur, nor would a substantial increase in the severity of previously identified significant effects occur, then no supplemental or subsequent EIR is required. The project site is 8.073 acres for multi - family development and 4.706 acres for park development (12.779 acres gross) located within the MCAS Tustin Specific Plan boundaries affecting only Disposition Package 1A -North, which is an irregular parcel within Planning Area 15 of Neighborhood G. The project site is bounded by future Tustin Ranch Road on the east, future Legacy Road on the north, future Park Avenue on the west, and a vacant parcel to the south. The proposed development of Tustin Legacy Disposition Package 1A -North is to construct 225 multi - family residential apartment homes ("Project"). The proposal requests City of Tustin consideration of Development Agreement (DA) 2012 -002, Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123 related to the provision of 225 affordable residential apartment housing units in compliance with California Government Code Section 65915(1). The Project proposes to develop 225 multi - family residential apartment homes includes 105 affordable units (35 very low income, 20 low income and 50 moderate income), which qualifies 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 2 the Project for a density bonus concessions or incentives authorized under Tustin City Code Section 9123 related to the provision of affordable housing units in compliance with California Government Code Section 65915(1). In addition, the Project applicant has partnered with The Irvine Company, LLC, a developer approved by the City of Tustin to develop Disposition Package 2A in Planning Area 13, and requested the transfer of 120 of the 157 affordable housing units from Disposition Package 2A to Disposition Package 1A -North with 120 market rate units requested to be transferred from Disposition Package 1A -North to Disposition Package 2A. Should the Tustin City Council approve the transfer request, the proposed development of Disposition Package 2A would include 37 moderate unit income units and 496 market rate units (for a total of 533 residential apartment units), and the proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The final proposed allocation of units is as follows: PROPOSED ALLOCATION 1A -North 2A Totals Very Low 88 0 88 Low 73 0 73 Moderate 64 37 101 Sub -Total 225 37 262 Market 0 496 496 Total 225 533 758 In accordance with the MCAS Tustin Specific Plan, Planning Area 15 allows Medium -High Density Residential at 16 -25 dwelling units per acre. The Project proposes a density of approximately 17.6 dwelling units per acre. Due to the fact that the Site 2A/Site 1A -North projects propose 262 of 758 total units as affordable rental units (35 %), the combined projects include (and qualify for) a request for density bonus, concessions or incentives authorized under Tustin City Code Section 9123 related to the provision of affordable housing units in compliance with California Government Code Section 65915(1). An Environmental Analysis Checklist has been completed and it has been determined that the Project is within the scope of the Prior Environmental Review and that pursuant to Public Resources Code Section 21166 and Title 14 California Code of Regulations Sections 15162 and 15168(c), there are no substantial changes in the project requiring major revisions to the Prior Environmental Review , substantial changes with respect to the circumstances under which the project is being undertaken which will require major revisions to the Prior Environmental Review, or any new information which was not known and could not have been known at the time the Prior Environmental Review was certified showing that: (1) the project will have any new significant effects; (2) significant effects previously examined will be substantially more severe; (3) mitigation measures or alternatives previously determined to be infeasible will now be feasible and would substantially reduce one or more significant effects of the project but the City declined to adopt the mitigation measure or alternative; or (4) mitigation measures or alternatives considerably different from those previously analyzed would substantially reduce one or more significant effects on the environment, but the City declined to adopt the mitigation measure or alternative. Accordingly, no new environmental document is required by CEQA. The following information provides background support for the conclusions identified in the Environmental Analysis Checklist. 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 3 AESTHETICS — Would the project: a) Have a substantial adverse effect on a scenic vista? b) Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual character or quality of the site and its surroundings? d) Create a new source of substantial light or glare, which would adversely affect day or nighttime views in the area? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. The project is not located on a scenic highway nor will it affect a scenic vista. The project would be consistent with the permitted uses identified within the MCAS Tustin Specific Plan. The development of residential apartment units within Planning Area 15 were considered within the FEIS /EIR and will have no negative aesthetic effect on the site when mitigation measures identified in the FEIS /EIR are incorporated with approval of the project. All exterior design is required to be in compliance with Section 2.17.3(A) — Urban Design Guidelines for Residential Development of the MCAS Tustin Specific Plan, and the Landscape Concept Section 2.17.2 as they relate to design of Tustin Ranch Road, Legacy Road, Park, Park Avenue and primary street corners and project entries. The proposal includes a design review and concept plan application, which requires that the Planning Commission and City Council review and ensure the design of the project, if approved, is found to be cohesive and in harmony with surrounding uses. All exterior lighting would be designed to reduce glare, create a safe night environment, and avoid impacts to surrounding properties in compliance with Section 2.17.3 (A) of the MCAS Tustin Specific Plan and the City's Security Ordinance. The proposed project will result in no substantial changes to the environmental impacts previously evaluated with the certified Program FEIS /EIR, the Supplemental and Addendum. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to aesthetics. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation/Monitoring Required: No new impacts nor substantially more severe aesthetic impacts would result from the adoption and implementation of the Project; therefore, no new or revised mitigation measures are required for aesthetics and visual quality. No refinements related to the Project are necessary to the FEIS /EIR mitigation measures and no new mitigation measures are required. Mitigation measures were adopted by the Tustin City Council in the FEIS /EIR, Addendum and Supplement; and applicable measures 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 4 will be required to be complied with as conditions of entitlement approvals for future development of the site. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Page 3 -84, 4 -109 through 114) and Addendum (Page 5 -3 through 5 -8) MCAS Tustin Specific Plan /Reuse Plan (Pages 3 -35 through 3-62, pages 3- 70 through 3 -81, pages 3 -82 through 3 -88, and pages 3 -104 through 3 -137) Tustin General Plan II. AGRICULTURE RESOURCES: In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an optional model to use in assessing impacts on agriculture and farmland. Would the project: a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non - agricultural use? b) Conflict with existing zoning for agricultural use or a Williamson Act contract? c) Involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland to non - agricultural use? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. As documented in the FEIS /EIR, the project site is part of MCAS Tustin Specific Plan that contained 702 acres of farmland. The FEIS /EIR concluded that there would be no viable long -term mitigation to off -set the impact of converting farmland on MCAS Tustin to urban uses. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to agricultural resources. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation/Monitoring Required: Specific mitigation measures have been adopted by the Tustin City Council in certifying the FEIS /EIR. However, the FEIS /EIR also concluded that Reuse Plan related impacts to farmland were significant and impossible to fully mitigate. A Statement of Overriding Consideration for the FEIS /EIR was adopted by the Tustin City Council on January 16, 2001. 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 5 Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Page 3 -37 to 3-54) MCAS Tustin Specific Plan Tustin General Plan III. AIR QUALITY: Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: a) Conflict with or obstruct implementation of the applicable air quality plan? b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation? c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non - attainment under an applicable federal or state ambient air quality standard (including releasing emissions that exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial pollutant concentrations? e) Create objectionable odors affecting a substantial number of people? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. As documented in the FEIS /EIR, the project is part of a larger reuse project at Tustin Legacy that was projected to result in air quality impacts that cannot be fully mitigated. A Statement of Overriding Consideration for the FEIS /EIR was adopted by the Tustin City Council on January 16, 2001. The site is presently not in use. The project applicant proposes to construct 225 units on 12.779 acres (17.6 dwelling units per acre), which is less that the allowable density of the site (16 -25 dwelling units) as identified in the MCAS Tustin Specific Plan. Therefore, no significant impact beyond what was analyzed in the adopted FEIS /EIR is anticipated. The City must support density bonus requests, concessions or incentives when projects provide affordable housing units in compliance with California Government Code Section 65915(1), as authorized under Tustin City Code Section 9123. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to air quality. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effect or mitigation measures or altematives that was not known and could not have been known when the FEIS /EIR was certified as complete. Mitigation/Monitoring Required: Specific mitigation measures have been adopted by the Tustin City Council in certifying the FEIS /EIR. However, the FEIS /EIR also concluded that Reuse Plan related operational air quality impacts were significant and impossible to fully 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 6 mitigate. A Statement of Overriding Consideration for the FEIS /EIR was adopted by the Tustin City Council on January 16, 2001. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -143 through153, 4 -207 through 4 -230 and pages 7-41 through 7-42) MCAS Tustin Specific Plan (Pages 3 -38 through 3 -54) Table 2, 1993 South Coast Air Quality Management District, CEQA Air Quality Handbook Tustin General Plan IV. BIOLOGICAL RESOURCES: - Would the project: a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? c) Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional or state habitat conservation plan? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. The FEIS /EIR found that implementation of the Reuse Plan and MCAS Tustin Specific Plan would not result in impacts to federally listed threatened or endangered plant or animal species. The proposed project is within the scope of development considered with the analysis of the FEIS /EIR, the Supplemental and Addendum for MCAS Tustin. The FEIS /EIR determined that implementation of the Reuse Plan and MCAS Tustin Specific Plan (including the proposed project) could impact jurisdictional waters/wetlands and the southwestem pond turtle or have an impact on jurisdictional waters/wetlands. The project site has been surveyed, and turtles were captured and moved off the site to another location as directed and overseen by the California Department of Fish and Game. Since that time, all former Marine Corps base drainage channels in the area were removed and 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 7 graded by the former owner of the property with the required 401, 404 and 1601 permits issued by Fish and Game, Army Corps of Engineers and Regional Water Quality Control Board. Consequently, the proposed project would not affect the southwestem pond turtle or have an impact on jurisdictional waters or wetlands. No substantial change is expected from the analysis previously completed in the FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to biological resources. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effect or mitigation measures or alternatives that was not known and could not have been known when the FEIS /EIR was certified as complete. Mitigation/Monitoring Required: No mitigation is required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -75 through 3- 82, 4 -103 through 4 -108, and 7 -26 through 7 -27) MCAS Tustin Specific Plan (Pages 3 -38 to 3 -54). Tustin General Plan V. CULTURAL RESOURCES: - Would the project: a) Cause a substantial adverse change in the significance of a historical resource as defined in §15064.5? b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to § 15064.5? c) Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? d) Disturb any human remains, including those interred outside formal cemeteries? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. The former MCAS Tustin contained two National Register listed blimp hangars, and several concrete or asphalt blimp landing pads that were considered historically or culturally significant, pursuant to the federal Section 106 process conducted at the site. A portion of the previously existing blimp pads are within the project site boundary that, through the Section 106 process, were identified as part of a discontiguous Historic District. The Navy, State Office of Historic Preservation (SHPO), and Advisory Council executed a Memorandum of Agreement (attached as part of the EIS /EIR) with City of Tustin and County of Orange as invited signatories that allowed for the destruction of the blimp pads. The EIS /EIR noted that it may not be financially feasible to retain the blimp hangers and there may be irreversible significant impacts. A Statement of Overriding Consideration for 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 8 the FEIS /EIR was adopted by the Tustin City Council on January 16, 2001. Consistent with the above referenced agreement, the previous owner of the property removed the blimp pad from the project site and leveled the property. Numerous archaeological surveys have been conducted at the former MCAS Tustin site. In 1988, the State Office of Historic Preservation (SHPO) provided written concurrence that all open spaces on MCAS Tustin had been adequately surveyed for archaeological resources. Although one archaeological site (CA -ORA -381) has been recorded within the Reuse Plan area, it is believed to have been destroyed. It is possible that previously unidentified buried archaeological or paleontological resources within the project site could be significantly impacted by grading and construction activities. With the inclusion of mitigation measures that require construction monitoring, potential impacts to cultural resources can be reduced to a level of insignificance No substantial change is expected from the analysis previously completed in the FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to cultural resources. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effect or mitigation measures or altematives that was not known and could not have been known when the FEIS /EIR was certified as complete. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS /EIR; these measures would be included as conditions of approval for the project. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -68 through 3- 74, 4 -93 through 4 -102 and 7 -24 through 7 -26) MCAS Tustin Specific Plan (Pages 3 -38 to 3 -54). Tustin General Plan VI. GEOLOGY AND SOILS: — Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of Toss, injury, or death involving: • Rupture of a known earthquake fault, as delineated on the most recent Alquist - Priolo Earthquake Fault Zoning map, issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. • Strong seismic ground shaking? • Seismic - related ground failure, including liquefaction? • Landslides? 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 9 b) Result in substantial soil erosion or the loss of topsoil? c) Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off -site landslide, lateral spreading, subsidence, liquefaction or collapse? d) Be located on expansive soil, as defined in Table 18 -1 -B of the Uniform Building Code (1994), creating substantial risks to life or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative wastewater disposal systems where sewers are not available for the disposal of wastewater? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. The FEIS /EIR indicates that impacts to soils and geology resulting from implementation of the Reuse Plan and MCAS Tustin Specific Plan would "include non - seismic hazards (such as local settlement, regional subsidence, expansive soils, slope instability, erosion, and mudflows) and seismic hazards (such as surface fault displacement, high - intensity ground shaking, ground failure and lurching, seismically induced settlement, and flooding associated with dam failure." However, the FEIS /EIR for MCAS Tustin also concluded that compliance with state and local regulations and standards, along with established engineering procedures and techniques, would avoid unacceptable risk or the creation of significant impacts related to such hazards. No substantial change is expected for development of the project from the analysis previously completed in the FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to geology and soils. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation /Monitoring Required: As identified in the FEIS /EIR, compliance with existing rules and regulations would avoid the creation of potential impacts. No mitigation is required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -88 through 3- 97, 4 -115 through 4 -123 and 7 -28 through 7 -29) MCAS Tustin Specific Plan (Pages 3 -38 to 3 -54). Tustin General Plan 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 10 VII. HAZARDS AND HAZARDOUS MATERIALS: — Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use or disposal of hazardous materials? b) Create a significant hazard to the public or the environment through reasonable foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one - quarter mile of an existing or proposed school? d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles or a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? f) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. The project will not create a significant hazard to the public through the transport, use, or disposal of hazardous materials, nor are there reasonably foreseeable upset and accident conditions at the property. In addition, construction and residential uses would not emit hazardous emissions within a quarter mile of an existing or proposed school. The Navy conveyed the property in 2002 as unrestricted and suitable for residential reuse. In addition, the project site is located within the boundaries of the Airport Environs Land Use Plan; however, it is at least four (4) miles from John Wayne Airport, and does not lie within a flight approach or departure corridor and thus does not pose an aircraft - related safety hazard for future residents or workers. The project site is also not located in a wildland fire danger area. Compliance with all federal, state and local regulations conceming handling and use of household hazardous substances will reduce potential impacts to below a level of significance. No substantial change is expected from the analysis previously completed in the FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 11 regard to hazards and hazardous materials. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation/Monitoring Required: As identified in the FEIS /EIR, compliance with existing rules and regulations would avoid the creation of potential impacts. No mitigation is required. Sources: Field Observation FEIS /EIR for Disposal and Reuse of MCAS Tustin pages (3 -106 through 3- 117, 4 -130 through 4 -138 and 7 -30 through 7 -31) MCAS Tustin Specific Plan (Pages 3 -38 through 3 -54) Finding of Suitability to Transfer (FOST), MCAS Tustin Tustin General Plan. VIII. HYDROLOGY AND WATER QUALITY: - Would the project: a) Violate any water quality standards or waste discharge requirements? b) Substantially deplete groundwater supplies or interfere substantially with groundwater recharge, such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre - existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? c) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in flooding on- or off-site? d) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner, which would result in flooding on- or off -site? e) Create or contribute runoff water which would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff? f) Otherwise substantially degrade water quality? g) Place housing within a 100 -year flood hazard area as mapped on a federal Flood hazard Boundary of Flood Insurance Rate Map or other flood hazard delineation map? h) Place within a 100 -year flood hazard area structures, which would impede or redirect flood flows? 1) Expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam? j) 882601.1 Inundation by seiche, tsunami, or mudflow? Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 12 The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. The project design and construction of facilities to fully contain drainage of the site would be required as conditions of approval of the project and submitted /approved Water Quality Management Plan. No long -term impacts to hydrology and water quality are anticipated for the proposed project. The proposed housing project will also not impact groundwater in the deep regional aquifer or shallow aquifer. The proposed project would not include groundwater removal or alteration of historic drainage patterns at the site. The project is not located within a 100 -year flood area and will not expose people or structures to a significant risk of loss, injury and death involving flooding as a result of the failure of a levee or dam, nor is the proposed project susceptible to inundation by seiche, tsunami, or mudflow. Construction operations would be required to comply with the Total Maximum Daily Load (TMDL) for the Newport Bay watershed that requires compliance with the Drainage Area Master Plan (DAMP) and National Pollution Discharge Elimination System (NPDES) and the implementation of specific best management practices (BMP). Compliance with state and local regulations and standards, along with established engineering procedures and techniques, would avoid unacceptable risk or the creation of significant impacts related to such hazards. Consequently, no substantial change is expected from the analysis previously completed in the FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to hydrology and water quality. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation/Monitoring Required: As identified in the FEIS /EIR, compliance with existing rules and regulations would avoid the creation of potential impacts. No mitigation is required. Sources: Field Observation FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -98 through 3- 105, 4 -124 through 4 -129 and 7 -29 through 7 -30) MCAS Tustin Specific Plan (Pages 3 -38 through 3 -54) FEMA Flood Map (2009) Tustin General Plan Fire Hazard Severity Zone Map (2011) 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 13 IX. LAND USE AND PLANNING: Would the project: a) Physically divide an established community? b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited, to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c) Conflict with any applicable habitat conservation plan or natural community conservation plan? The proposed development of Disposition Package 1A -North would include a total of 225 affordable Medium -High Density residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan, and the number of dwelling units proposed by the Project is under the maximum development threshold for Planning Area 15, which contemplates the development of 1214 dwelling units in total. The City of Tustin is the controlling authority over implementation of the Reuse Plan for the former base, such as land use designations, zoning categories, recreation and open space areas, major arterial roadways, urban design, public facilities, and infrastructure systems. On February 3, 2003, the Tustin City Council approved the Specific Plan for MCAS Tustin that established land use and development standards for development of the site. The proposed project complies with Planning Area 15's development standards for multiple family residential units as noted in Sections 3.9.2.G of the MCAS Tustin Specific Plan. The City must support density bonus requests, concessions or incentives when projects provide affordable housing units in compliance with California Government Code Section 65915(1), as authorized under Tustin City Code Section 9123. Compliance with state and local regulations and standards would avoid the creation of significant land use and planning impacts. Also, the proposed project will not conflict with any habitat conservation plan or natural community conservation plan. Consequently, no change is expected from the analysis previously completed in the FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to land use and planning. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation/Monitoring Required: The proposed project is consistent with the development standards of the MCAS Tustin Specific Plan as identified by the adopted FEIS /EIR. No mitigation is required. 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 14 Sources: Field Observation FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3-3 to 3-17, 4 -3 to 4-13 and 7 -16 to 7 -18) MCAS Tustin Specific Plan (Pages 3-38 through 3-54). Tustin General Plan X. MINERAL RESOURCES: Would the project: a) Result in the Toss of availability of a known mineral resource that would be a value to the region and the residents of the state? b) Result in the loss of availability of a locally important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. Chapter 3.9 of the FEIS /EIR indicates that no mineral resources are known to occur anywhere within the Reuse Plan area. The proposed project will not result in the loss of mineral resources known to be on the site or identified as being present on the site by any mineral resource plans. Consequently, no substantial change is expected from the analysis previously completed in the FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to mineral resources. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation/Monitoring Required: No mitigation is required. Sources: Field Observation FEIS /EIR for Disposal and Reuse of MCAS Tustin (Page 3 -91) MCAS Tustin Specific Plan (Pages 3 -38 through 3 -54). Tustin General Plan XI. NOISE: Would the project: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? b) Exposure of persons to or generation of excessive ground borne vibration or ground borne noise levels? 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 15 c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f) For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excessive noise levels? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. The proposed project could result in implementation activities that generate noise. The FEIS /EIR indicates that full build -out of the base will create noise impacts that would be considered significant if noise levels experienced by sensitive receptors would exceed those considered "normally acceptable" for the applicable land use categories in the Noise Elements of the Tustin General Plan. The applicant has submitted a Noise Impact Study for the project that indicates that additional mitigation will not be required (Source: see Exhibit 1). However, the City of Tustin will ensure that construction activities comply with the City's Noise Ordinance and that the proposed multi - family housing units are designed with adequate noise attenuation (i.e., window design, sound walls) to meet the allowable noise levels as required by Tustin City Code for residential use. The project would be sound attenuated against present and projected noise so as not to exceed an exterior noise standard of 65 dB CNEL in outdoor living areas and an interior standard of 45 dB CNEL in all habitable rooms to reduce noise - related impacts to a level of insignificance. Compliance with adopted mitigation measures and state and local regulations and standards, along with established engineering procedures and techniques, will avoid unacceptable risk or the creation of significant impacts related to such hazards. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to noise. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS /EIR; these measures would be included as conditions of approval for the project. 882601.! Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 16 Sources: Field Observation FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -154 to 3 -162, 4 -231 to 4 -243 and 7-42 to 7-43) MCAS Tustin Specific Plan (Pages 3 -38 through 3-54). Tustin General Plan XII. POPULATION & HOUSING: Would the project: a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? b) Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere? c) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan, and the number of dwelling units proposed by the Project is under the maximum development threshold for Planning Area 15, which contemplates the development of 1214 dwelling units in total. The City must support density bonus requests, concessions or incentives when projects provide affordable housing units in compliance with California Government Code Section 65915(1), as authorized under Tustin City Code Section 9123. Additionally, the proposed project site is vacant and will not displace people or necessitate construction of replacement housing elsewhere. No substantial change is expected from the analysis previously completed in the FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to population and housing. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation /Monitoring Required: No mitigation is required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -18 to 3-34, 4- 14 to 4 -29 and 7 -18 to 7 -19) MCAS Tustin Specific Plan (Pages 3 -38 through 3 -54). Tustin General Plan 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 17 XIII. PUBLIC SERVICES a) Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times, or other performance objectives for any of the public services: The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. The site is currently vacant. Development of the site would require public services such as fire and police protection services, schools, libraries, recreation facilities, and biking /hiking trails. Fire Protection. The proposed project will be required to meet existing Orange County Fire Authority (OCFA) regulations regarding demolition, construction materials and methods, emergency access, water mains, fire flow, fire hydrants, sprinkler systems, building setbacks, and other relevant regulations. Adherence to these regulations would reduce the risk of uncontrollable fire and increase the ability to efficiently provide fire protection services to the site. The number of fire stations existing and planned in the area surrounding the site will meet the demands created by the proposed project. Police Protection. The need for police protection services is assessed on the basis of resident population estimates, square footage of non - residential uses, etc. Development of the site would increase the need for police protection services. The developer as a condition of approval for the project would be required to work with the Tustin Police Department to ensure that adequate security precautions such as visibility, lighting, emergency access, address signage are implemented in the project at plan check. Schools. The proposed project is located within Tustin Unified School District (TUSD). The implementation of the Reuse Plan would provide two 10 -acre sites for elementary schools and a 40 -acre high school site to serve the growing student population within its district. Based on the student generation factors of 0.29 per unit for grades K -5; 0.127 student per units for grades 6 -8; 0.153 student per unit for grades 9 -12, and the potential of 2,585 dwelling units developed within the TUSD boundaries, the adopted EIS /EIR noted that reuse development would generate approximately 750 students for grades K- 5, 328 students for grades 6 -8, and 395 students for grades 9 -12 for a total of 1,473 students. The total number of units approved in the Specific Plan for Neighborhood G is 2,383 units; the total number of units approved in the Specific Plan for Planning Area 15 is 1214 The applicant is requesting approval of 225 units (representing 9% of the total number of units allowed in Neighborhood G, and 18% of the total units allowed in Planning Area 15). No other residential units have been previously built in Planning Area 15. The TUSD will receive its statutory school impact fees per Senate Bill 50 from the proposed residential development of the site. As a condition of approval for the project, the developer will be required to pay applicable school fees prior to issuance of the building permit. In summary, no new additional students are anticipated beyond what was considered in the FEIR/EIS for the Disposal and Reuse of MCAS, Tustin, and in any event, City required mitigation is limited by State law to requiring payment of the SB 50 school impact fees. 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 18 Other Public Facilities (Libraries). Implementation of the entire Reuse Plan would only result in a library demand of up to approximately 2,500 square feet of library space. This relatively small amount of space is well below the library system's general minimum size of 10,000 square feet for a branch library and would not trigger the need for a new facility. General Implementation Requirements: To support development in the reuse plan area, the Reuse Plan /Specific Plan requires public services and facilities to be provided concurrent with demand. The proposed project will be required to comply with FEIS /EIR implementation measures adopted by the Tustin City Council. No substantial change is expected from the analysis previously completed in the approved FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to public services. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS /EIR; these measures would be included as conditions of approval for the project. Sources: Field Observation FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3-47 to 3 -57, 4- 56 to 4 -80 and 7 -21 to 7 -22) MCAS Tustin Specific Plan (Pages 3 -38 through 3 -54). Tustin General Plan XIV. RECREATION a) Would the project increase the use of existing neighborhood and regional parks or other recreational facilities, such that substantial physical deterioration of the facility would occur or be accelerated? b) Does the project include recreational facilities or require the construction or expansion of recreational facilities, which might have an adverse physical effect on the environment? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. The project includes improvement of an adjacent, 4.706 acre neighborhood park that will be available to the public. 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 19 Since the Reuse Plan process included public conveyance of city parks and an Urban Regional Park, individual developers were relieved of the requirement to dedicate land for park purposes. However, pursuant to the MCAS Tustin Specific Plan, the developers are required to provide in -lieu fees or public accessible park space (where approved by the City). Projects that do not propose the subdivision of property are exempt from the provisions of the Quimby Act. In addition, the Disposition and Development Agreement between the City and the developer will require that the private developer will improve the adjacent park site. No substantial change is expected from the analysis previously completed in the approved FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to recreation. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS /EIR; these measures would be included as conditions of approval for the project. Sources: Field Observation FEIS /EIR for Disposal and Reuse of MCAS Tustin pages 3-47 to 3 -57, 4-56 to 4 -80 and 7 -21 to 7 -22 Reuse Plan and MCAS Tustin Specific Plan (Pages 3 -38 through 3 -54) Tustin Parks and Recreation Services Department Tustin General Plan XV. TRANSPORTATION/TRAFFIC: Would the project: a) Cause an increase in traffic, which is substantial in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that result in substantial safety risks? 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 20 d) Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency access? f) Result in inadequate parking capacity? g) Conflict with adopted policies, plans, or programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan, and the number of dwelling units proposed by the Project is under the maximum development threshold for Planning Area 15, which contemplates the development of 1214 dwelling units in total. The FEIS /EIR indicates that transportation and circulation impacts would be created through the phased development of the approved Reuse Plan and MCAS Tustin Specific Plan. A projected 216,445 Average Daily Trips (ADT) would be generated by full redevelopment of the base by year 2020 that, if left unmitigated, would overburden existing roadways and intersections surrounding the base property. The FEIS /EIR indicates that traffic circulation activities at MCAS Tustin generated a baseline of 12,400 ADT when the base was fully operational (1993). As a military facility, the FEIS /EIR considered the traffic impact and developed a mitigation program to reduce potential impacts to a level of insignificance. This site will be conditioned to participate in its fair share responsibility for both on -site and off -site circulation mitigation and implementation measures. In addition, construction activities are required to be meet all Transportation related FEIS /EIR Implementation and Mitigation Measures (e.g., lane closures, street/utility construction, construction vehicle traffic, etc.). The FEIS /EIR implementation and mitigation measures will reduce potential impacts to the traffic and circulation system to a level of insignificance. In addition, certain public infrastructure is required to be constructed by the developer as a requirement of the DDA. Also, a parking assessment and gate design analysis was submitted by the applicant which indicates that the project will not adversely impact parking and circulation within or outside the project area (See Exhibit 2). Consequently, no substantial change is expected from the analysis previously completed in the approved FEIS /EIR for MCAS Tustin. No substantial change is expected from the analysis previously completed in the approved FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to traffic. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS /EIR; these measures would be included as conditions of approval for the project. 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 21 Sources: Field Observation FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -118 through 3- 142, 4 -139 through 4 -206 and 7 -32 through 7-41) Reuse Plan and MCAS Tustin Specific Plan (Pages 3-38 through 3-54). Tustin General Plan XVI. UTILITIES AND SERVICE SYSTEMS: Would the project: a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? e) Result in a determination by the wastewater treatment provider, which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes and regulations related to solid waste? The proposed development of Disposition Package 1A -North would include a total of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income). The proposed use is consistent with the approved Specific Plan. The FEIR /EIR analyzed medium -high residential development on the proposed site, which is consistent with the proposed project. Development of the site would require on- site improvements and off -site infrastructure improvements to utilities and roadway systems, including design and construction of full width improvements on Tustin Ranch Road, Legacy Road and Park Avenue. In addition, certain public infrastructure will be constructed by the applicant which may include storm drain, domestic water, reclaimed water, sanitary sewer, and dry utility service systems necessary to serve the site, and landscape and irrigation on in the public right -of -way. In addition, development of the site is required to meet federal, state, and local standards for design of wastewater treatment. The number of proposed units can be supported by the Irvine Ranch Water District for domestic water and sewer services. No substantial change is expected from the analysis previously completed in the approved FEIS /EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to utilities and service systems. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 22 substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS /EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS /EIR, the Supplemental or Addendum were certified as completed. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS /EIR; these measures would be included as conditions of approval for the project. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (pages 3 -35 through 3- 46, 4 -32 through 4 -55 and 7 -20 through 7 -21) Reuse Plan and MCAS Tustin Specific Plan (Pages 3-38 through 3 -54). Tustin General Plan XVII. MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self - sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have impacts that are individually limited but cumulatively considerable? ( "Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.) c) Does the project have environmental effects, which will cause substantial adverse effects on human beings, either directly or indirectly? Based upon the foregoing, the proposed project does not have the potential to degrade the quality of the environment, substantially reduce the habitats or wildlife populations to decrease or threaten, eliminate, or reduce animal ranges, etc. With the enforcement of FEIS /EIR mitigation and implementation measures approved by the Tustin City Council, the proposed project does not cause unmitigated environmental effects that will cause substantial effects on human beings, either directly or indirectly. In addition, the proposed project does have air quality impacts that are individually limited, but cumulatively considerable when viewed in connection with the effects of the reuse and redevelopment of the former MCAS Tustin. The FEIS /EIR, the Supplemental and Addendum previously considered all environmental impacts associated with the implementation of the Reuse Plan and MCAS Tustin Specific Plan. The project proposes no substantial changes to environmental issues previously considered with adoption of the FEIS /EIR. Mitigation measures were identified in the FEIS /EIR to reduce impact but not to a level of insignificance. A Statement of Overriding Consideration for the FEIS /EIR was adopted by the Tustin City Council on January 16, 2001. 882601.1 Evaluation of Environmental Impacts DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 23 Mitigation/Monitoring Required: The FEIS /EIR previously considered all environmental impacts associated with the implementation of the Reuse Plan and MCAS Tustin Specific Plan. Mitigation measures have been adopted by the Tustin City Council in the FEIS /EIR and would be included in the project as applicable. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (pages 5-4 through 5 -11) Reuse Plan and MCAS Tustin Specific Plan (Pages 3 -144 through 3 -154). Tustin General Plan CONCLUSION The summary concludes that all of the proposed projects effects were previously examined in the FEIS /EIR for MCAS Tustin, that no new effects would occur, that no substantial increase in the severity of previously identified significant effects would occur, that no new mitigation measures would be required, that no applicable mitigation measures previously not found to be feasible would in fact be feasible, and that there are no new mitigation measures or altematives applicable to the project that would substantially reduce effects of the project that have not been considered and adopted. A Mitigation and Monitoring and Reporting Program and Findings of Overriding Considerations were adopted for the FEIS /EIR on January 16, 2001 and shall apply to the proposed project, as applicable. 882601.1 Exhibit 1 Noise Impact Study The Acoustics & Vibration Group, Inc. The Group 5700 Broadway Sacramento, CA 95820 -1852 916-457-1444 FAX: 916-457-1475 Consultants in Acoustics, Vibration, Noise Control & Audio Visual Design NOISE IMPACT STUDY FOR TUSTIN LEGACY APARTMENTS IN TUSTIN AND RECOMMENDATIONS TO MEET NOISE LIMITS OF CITY OF TUSTIN Prepared for St. Anton Partners, LLC 1801 I Street, Suite 200 Sacramento, CA 95811 Prepared by tiff __,1�. STEVE PETTYJO t� 1 RINCIPAL CERTIFIED: INSTITUTE OF NOIS:� •NTROL ENGINEERS -1981 August 28, 2012 R12135 TABLE OF CONTENTS The 1.0 SUMMARY 1 2.0 ACOUSTIC STANDARDS 2 2.1 Noise Element Standards 2 2.2 Noise Control Ordinance 3 3.0 PROJECT DESCRIPTION & SITE 4 4.0 SOUND SOURCES 5 4.1 Existing 5 4.2 Existing + Project 6 4.3 Cumulative + Project 6 5.0 EXTERIOR ACOUSTIC ENVIRONMENT 7 5.1 Existing 7 5.2 Existing + Project 8 5.3 Cumulative + Project 9 6.0 INTERIOR ACOUSTIC ENVIRONMENT 10 7.0 ACOUSTIC IMPACT 11 7.1 Exterior Impact 11 7.2 Interior Impact 11 8.0 MITIGATION MEASURES 11 9.0 REFERENCES 13 LIST OF TABLES TABLE 1. Exterior Noise Ordinance Limits for the City of Tustin for Residential Property Affected by Non- Transporta- tion Sources per Section 4614 4 TABLE II. Interior Noise Ordinance Limits for the City of Tustin for Residential Property Affected by Non- Transporta- tion Sources 4 TABLE 111. Heavy Rail Traffic Volumes and Types Assumed to Calculate Existing Day -Night Average Sound Levels at MCAS Redevelopment Project, Lot 20, Tustin 5 TABLE IV. Roadway Traffic Volumes and Mixes Assumed to Calculate Existing Plus Project Lth, Sound Levels for the Proposed Tustin Legacy Apartments in the City of Tustin. 6 TABLE V. Roadway Traffic Volumes and Mixes Assumed to Calculate Cumulative Plus Project Lth Sound Levels at the Tustin Legacy Apartments in the City of Tustin 7 TABLE VI. Predicted Day -Night Sound Levels for Existing Plus Project Conditions at the Tustin Legacy Apartments in Tustin. 8 TABLE VII. Predicted Day -Night Sound Levels for Cumulative Plus Project Conditions at the Tustin Legacy Apartments in Tustin. 9 TABLE VIII. Predicted Cumulative Plus Project Interior Ld„ Sound Levels in Representative 2 „d Floor Rooms of Tustin Legacy Multifamily Housing in Tustin 11 R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 1.0 SUMMARY This report documents the impact of road, rail and air traffic noise on the proposed Tustin Legacy multifamily housing in the City of Tustin. Because the proposed apartments are part of the Marine Core Air Station (MCAS) Redevelopment Project, few roads exist on the site. Road traffic will be the major sound source at the project site when complete. Other sound sources include commercial flights into and out of John Wayne Airport, heavy rail traffic to the north, activity at the commercial retail site southwest of the project site and activity in the park to the east. The latter two sound sources are non- transportation types. The heavy rail tracks are more than 3,000 feet away. John Wayne Airport is approximately 2.5 miles southwest of the project site but departures are near the site. Road traffic is expected to remain the dominant sound source at the project site to the design year of 2030. Sound generated by activity in the park east of the site is expected to increase with time. Based on the pro- posed layout, significant group activity is not expected to occur close to the common boundary. Sound generated in the park will be heard and could become excessive at time. This is particularly true for organized events or activities or for random individual events. Sound from commercial properties is expected to increase slightly. The park and commercial property generate non - transportation sound sources that are judged based on the hourly sound level. Sound reduction is difficult for both sources. For park produced sounds, mitigation is limited to building sound walls at the common boundary, monitoring park activity and restricting use near the boundary. The project will create non- transporta- tion sources such as mechanical equipment, parking lot activity and general human activity. These are not expected to adversely influence any nearby residential property. The project will generate road traffic, but the day -night average, Lan, sound level will increase by less than 0.5 dB(A). This is consid- ered insignificant. The project site is on the former MCAS and includes a multi- family residential development and the development of a park adjacent to it, to the northeast. The residential site is bounded by Tustin Ranch Road on the west, Legacy Road on the north and Park Avenue on the east. Tustin Ranch Road and Park Avenue exist, but not near the project site. Legacy will be a completely new street. All of the 15 buildings will lie on Lot 20 and the park will occupy Lot MMM. Nine of the buildings will be next to a street, one will be in the center of the other buildings, and five will be next to an adjacent property or the park. All the apartment buildings will be three stories tall, except for the central build- ing, which will be four stories. Noise Requirements of City of Tustin are given in the Noise Element chapter of the City of Tust- in General Plan [1]* and in the Noise Control chapter of the Health and Sanitation article of the City of Tustin Code of Ordinances [2]. The California Building Code, CBC, [3] requires a noise study when residential property is exposed to day -night average, Lan, sound level goal of 60 dB(A) or more in outdoor activity areas. The City uses the Community Noise Equivalent Level, CNEL, as their met- ric of choice for transportation sources. The CNEL divides the day into three parts, day, evening and night with penalties for evening and night sound levels. The City sets an exterior La„ sound level limit of 65 dB for multifamily residences in common recreation areas and patios or balconies of 6 feet or more in depth. The CNEL is typically higher than the Lan sound level, but by no more than 0.5 dB. The City and the State have an interior Lan sound level limit of 45 dB in habitable spaces such as bed- rooms. Number in brackets refers to references listed at the end of this letter report. 1 RI2135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 1 Existing plus project exterior L& sound levels are predicted to be 53 to 67 dB(A) when measured at the buildings' exterior, on balconies, or in common recreation areas. Road traffic is the main source. The impact of the change in exterior Ldn sound level from cumulative to cumulative plus project is insignificant. The changes in all predicted exterior Lda sound levels are at or less than 70 dB(A), and less than 65 dB(A) in the common recreation areas or on the balconies, the impact is considered insig- nificant. Additional exterior sound reduction is not required. The cumulative plus project exterior Lda sound levels were used to predict the interior Ldn sound levels in habitable rooms closest to roadways. A 45 dB Lth, sound level design goal was used in the evaluation of these spaces with the application of a 2 dB margin of safety. The margin of safety ac- counts for inaccuracies in the model and the use of laboratory data that will not reflect field construc- tion procedures and techniques. Interior Ldo sound levels will not exceed the City's 45 dB Criteria nor the Design Goal of 43 dB(A). Predictions were done based on the proposed construction shown in the architectural drawings [4]. Interior La sound level impacts will be insignificant relative to the City's limit and the design goal. Special mitigation measures will not be required but certain minimums material and construction techniques must be followed to comply with the assumption used in arriving at these conclusions. Non - transportation sound sources associated with the park could produce levels that exceed the City's Noise Ordinance. The park is not set up for organized athletics or concerts and sound reinforce- ment systems will not be allowed. The park has been designed maximize the distance between picnic areas and play areas and the boundary common to the apartments. Spontaneous or unorganized events such as birthday parties could generate excess sound if held close to the common boundary. Ideally, people should be encouraged to hold such events in the designated areas and to be within 50 feet of the common boundary during such gathers. The design allows visual access between the multifamily dwellings and the park and a gate at one location allows access from the apartments. The proposed wall separating the two uses provides both visual and acoustical views between the park and the apart- ments. That is, the wall not stop people from looking into the opposite area and neither will it stop sound from passing back and forth. Administrative action should be pursued first to prevent excess sound generation by designing the areas closest to the common boundary to prevent any gatherings. If a problem persists with excess sound from the park, building a sound wall along the common boundary could be an option. This would only be undertaken after tests show that the City's limits are exceeded and administrative options have been exhausted. 2.0 ACOUSTIC STANDARDS Noise sensitive projects fall under the jurisdiction of two sets of acoustical criteria as published by the City of Tustin. The first criterion is given in the Noise Element chapter of the City of Tustin General Plan [1]. The second standards are contained in the Noise Control chapter of the Health and Sanitation article of the City of Tustin Code of Ordinances [2]. These are described below. 2.1 Noise Element Standards Acoustic criteria contained in the Noise Element of the City of Tustin General Plan are based on the Community Noise Equivalent Level, CNEL, sound level. This criterion addresses the average sound level over 24 -hours and is directed mainly at transportation sources. Table N -3 of the Noise Elements sets an interior noise limit is CNEL 45 dB and the exterior noise limit is CNEL 65 dB. The interior noise standard is with windows closed. For multifamily residences, the exterior requirement 2 RI2135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 The applies on patios and balconies with a depth of 6 feet or more and in common recreation areas. For the purpose of this project, common recreation areas are the courtyards of Buildings 8 and 9 and the recre- ation/pool area. Both the CNEL and Ld, metrics address the average sound level over 24 -hours and are directed mainly at transportation sources. The day -night noise descriptor averages measured or predicted sound levels over 24 -hours after applying a 10 dB penalty to nighttime sounds. Hourly average sound levels, Leo are measured or predicted for each hour of the day or for each hour during which a sound source is present. A 10 dB penalty is added to each hourly average sound level measured or predicted from 10:00 p.m. to 7:00 a.m. The penalty is applied because people trying to sleep during these hours are more sensitive to external sounds. The CNEL divides the day into three parts instead of two. Daytime is defined as 7:00 a.m. to 7:00 p.m. while the evening is the hours between 7:00 p.m. to 10:00 p.m. The same nighttime penalty is applied for the CNEL but the evening has a 5 dB penalty for sound measured during these hours. The 10 dB nighttime penalty is equivalent to multiplying the number of train, plane or road "events" by 10. That is, the volume is increased by a factor of 10. The evening penalty used by the CNEL is equivalent to multiplying the number of "events" by 3. Typically, the CNEL is about 0.5 dB(A) higher than the La, sound level at any site. This is within the prediction error for these metrics. However using the CNEL is difficult for many sources because there is no specific information for 7:00 p.m. to 10:00 p.m. Therefore, the day -night average, La,,, is used instead for many sources such as road traffic. Excluding or including only certain sources is possible. For example, the sounds of aircraft flying over the site are included only during those hours when they occur. If no events happen during the nighttime, no penalty would be applied. When some sources are excluded from the analysis, it is called the Background La, or CNEL sound level. 2.2 Noise Control Ordinance The second criteria, the Noise Ordinance [2], looks at the sound produced during shorter times by sources not related to transportation equipment. The one exception is that sound produced by trans- portation equipment while on private property may be regulated by the Noise Ordinance. This Ordi- nance limits the amplitude and duration of sound produced over any given 1 -hour period. Sound limits are based on the type of source, the duration of the sound, the time of day of occurrence, background sound levels and the tonal content of sound. This is a City code and is enforceable with limited excep- tions. The Noise Control Ordinance applies a 5 dB penalty to the limits when the sound comprises mainly speech or music or if it contains pure tones or impact sounds. When background sound levels equal the limits given in Table I for the individual categories, the limit of that category is raised to reflect the background sound. The exact meaning of this is unclear. Table I summarizes limits of the Noise Ordinance with and without a penalty but without regard to the background sound level. The background sound level is that measured when the source or sources of interest are absent. Sound generated at the project by people or mechanical equipment will be required to meet limits of the Noise Ordinance at all nearby residential property. Sound generated at the park will be required to meet these limits at the multifamily development. The City also has a sound level limit for the interior of multifamily units. Again, the limits are based on the sound measured over an hour. This standard is believed to apply to sources within adja- cent units and for sources exterior to the building. Penalties apply for time of day and sound character- istic. The influence of background sound on the limits is the same as for the exterior. Table II pro- vides a summary of the interior noise standards for non - transportation sound sources. 3 R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 TABLE I. Exterior Noise Ordinance Limits for the City of Tustin for Residential Property Af- fected by Non - Transportation Sources per Section 4614. Exterior Sound Level Limits, dB(A) Category 30 (L5o) 2 15 (L25) 3 5 (L08) 4 1 (L02) 5 0 (LM) Cumulative Number of Min- utes in any 1 -hour period Without Penalty With Penaltywi Daytime 7 a.m. to 10 p.m. Nighttime 10 p.m. to 7 a.m Daytime 7 a.m. to 10 p.m Nighttime 10 p.m. to 7 a.m. 55 50 60 55 65 60 70 65 75 70 50 45 55 50 60 55 65 60 70 65 - Penalty applies when sound is composed primarily impulsive sources. of speech or music, contains pure tones or results from impacts or TABLE II. Interior Noise Ordinance Limits for the City of Tustin for Residential Property Af- fected by Non - Transportation Sources. Interior Sound Level Limits, dB(A) Cumulative Number of Min Category utes in any 1 -hour period Without Penaltyla Daytime Nighttime 7 a.m. to 10 p.m. 10 p.m. to 7 a.m. With Penaltyla Daytime Nighttime 7 a.m. to 10 p.m. 10 p.m. to 7 a.m. 1 5 (Los) 2 1 (L02) 3 0 (L) 55 45 60 50 65 55 50 40 55 45 60 50 - Penalty applies when sound is composed primarily of speech or music, contains pure tones or results from impacts or impulsive sources. 3.0 PROJECT DESCRIPTION & SITE The project site is on an undeveloped plot of land that was part of a Marine Corps Air Station. The property has been turned over to the City of Tustin for redevelopment. The infrastructure will have to be installed before residential development can begin. A 12.2 acre parcel that is to be bor- dered on the west by Tustin Ranch Road, on the north by Legacy Road, and on the east by Park Ave- nue in the MCAS redevelopment project (Lots 20 and MMM of tract number 17404 [5]) is proposed to be developed for affordable multifamily housing (7.49 acres) and a park (4.71 acres). A total of 225 units is to be constructed at the site in 14 3 -story buildings and one 4 -story building. The latter build- ing includes the rental offices, club room, and fitness facilities as well as several apartments on the ground floor. Four of the buildings front Park Avenue, three front Tustin Ranch Road, one is on the corner of Tustin Ranch Road and Legacy Road, one fronts Legacy Road, one fronts an adjacent lot (Lot 21), four front the park, and one is in the center of the other buildings. All land that is part of the MCAS redevelopment project is currently vacant. Single - family homes may be built on land surrounding the project site but at this time no land uses are confirmed. Southwest of the project is an existing commercial retail center bordered on the north by the existing 4 RI2135: SAP, MS and Recommendations to Meet Noise Limits; Tustin Legacy Apis, August 28, 2012 section of Tustin Ranch Road and an existing section of Warner Avenue. The Google Earth program suggests that the property is currently about 45 to 47 feet above seal level (ASL) while the Tustin Leg- acy civil engineering grading plans suggest that the finish floor elevations will range from 52 to 57 feet ASL. The land will be fairly flat at the project site when complete. Four basic apartment building designs are to be built with nine basic apartment layouts. All apartments have 9 foot ceilings. The 3 -story buildings are designated at Types A (10), B (2), and C (2). The 4 -story building is D and is the apartments cum recreation and rental office building in the center of the development. Only four of the nine apartment layouts are evaluated as representative of the worst case scenarios for this study. A typical exterior wall construction comprises 1 -coat stucco over wire mesh, fastened to 1" thick insulation applied over 2- layers of building paper fastened to 7/16" shear plywood attached to minimum 2" x 4" wood studs. R -11 insulation is to be installed in all stud cavities with 5/8" Type X gypsum board attached to the interior face of the studs. The ceilings of all living units will be finished with gypsum board. Double glazed windows will be used throughout all units. 4.0 SOUND SOURCES 4.1 Existing The proposed development is part of the Marine Core Air Station redevelopment project. None of this land tract has been developed at this point. This includes a lack of roads on the property. Cur- rently, Tustin Ranch Road borders a commercial retail center southwest of the project site but does not continue onto the MCAS redevelopment land. Once roads are built on the MCAS redevelopment site, road traffic on Tustin Ranch Road, Legacy Road, and Park Avenue will be the dominant sound source influencing the project site. Other sound sources are secondary in importance and include aircraft flyovers, heavy rail traffic, dogs barking and general human activity. Railroad tracks exist just north of Edinger Avenue, which forms the north border of the MCAS redevelopment lands. These tracks are approximately 3,900 feet from the proposed project site. The volume of traffic on the tracks is unknown. Table III provides the assumptions made regarding vol- ume, number of engines, speed and percent of nighttime traffic. TABLE III. Heavy Rail Traffic Volumes and Types Assumed to Calculate Existing Day -Night Average Sound Levels at MCAS Redevelopment Project, Lot 20, Tustin. Distance to Average Number Number Percent Train Track Center Daily of Whistle of of Trains Train Description Line, Ft. Volume Engines Blown Cars at Night Speed UPRC >3900 33 3 no 95 27 40 John Wayne Airport in Irvine is approximately 2.5 miles southwest of the project site. The main runway runs approximately southwest to northeast. Typical flight patterns carry the aircraft north of the project site. The site is outside any standard noise contours generated by airport operations. The airport maintains noise level monitoring sites including three north of the airport (8N, 9N, 10N) [6]. 5 R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 Sites 8N and ION are generally in line with the runway while 9N is offset to the west. This project site is offset to the east further than 9N is to the west, so 2010 published aircraft noise levels for site 9N were used to estimate the noise impact on the proposed project from John Wayne Airport. Standard noise levels for heavy rail traffic moving through urban areas at the same distance were used to predict the sound impacts on the proposed project site from the railroad traffic. 4.2 Existing + Project Once roads are built on the MCAS redevelopment property, road traffic will be the dominant sound source on the project site. Tustin Ranch Road will have 2 -lanes running each direction along the west border of the property. Legacy Road will have a single lane running along the north border of the property of both the apartment complex and the park. Park Avenue also will have a single lane running along the east border of the property of both the apartment complex and the park. Road traffic counts were based on data in Volume 2 of the Final Environmental Impact Statement /Environmental Impact Report for the Disposal and .Reuse of MCAS Tustin, FEIS /EIR [71. This document provided 2005 and 2020 counts. The project has not started so the 2012 volumes were assumed to be the same as for 2005 since the project has not progressed. Legacy Road was not included in the redevelopment FEIS/EIR. The road was assumed to be the sam as Park Avenue. Table IV summarizes the data used to model the existing plus project Lth, sound levels. TABLE IV. Roadway Traffic Volumes and Mixes Assumed to Calculate Existing Plus Project La„ Sound Levels for the Proposed Tustin Legacy Apartments in the City of Tustin. Distance Average Percent Percent Percent Percent Vehicle Road to Near Daily Heavy Medium Trucks Autos at Speed Name Lane, Ft Volume Trucks Trucks at Night Night MPHo Park Ave 25 8,000 2.0 3.0 6.0 11.0 30/25 Legacy Rd 25 8,000 2.0 3.0 6.0 11.0 30/25 Tustin Ranch Rd 25 14,000 2.0 3.0 6.0 11.0 45/40 0-Automobile and truck speed respectively Rail and air traffic are not expected to change from existing to existing plus project. The infor- mation given in the section on Existing Sound sources was used to find the exiting plus project La„ sound level. 4.3 Cumulative + Project Road traffic on Tustin Ranch Road, Legacy Road and Park Avenue are expected to remain the dominant sound source at the Tustin Legacy Apartments in the year 2030. Traffic generated by the project will have a small impact on the total volume on these roads because the developments on the other lots on Tract 17404 are expected to be built at approximately the same time as the proposed pro- ject. Train movements and aircraft flights will remain sound sources of secondary importance. Very little change is expected in the volume of traffic for these sources. The information in the section on Existing sound sources will be applicable. Other secondary sound sources will include general avia- tion flights, mechanical equipment and general human activity. Only vehicle volumes could be quanti- fied. 6 1(12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 The project will potentially be impacted by non - transportation sound sources and will impact other residential areas because of such sources. The project will add new non - transportation sound sources including mechanical equipment, trash collection, vehicle movements in the parking lot and general human activity. Commercial sites southwest of the site are potential sources of non- transporta- tion sound. This includes public address systems, mechanical equipment body work tools, people talking, vehicles moving in and out of parking lots and other general activity. Activity in the park will be another source of non - transportation sound. Adults and children playing or yelling could generate excessive sound. In general, quantifying these sources is difficult. Traffic volumes will grow from existing plus project to cumulative plus project conditions as shown in the FEIS/EIR for the redevelopment project[7]. That environmental study was based on the year 2005 as existing and 2020 for the cumulative plus project. Traffic volumes on Tustin Ranch Road were projected to grow at an annual rate of 4 percent to the year 2020. An assumption was made that the 2020 projected volumes were still applicable and faster growth would occur from 2012 to 2020 to give these volumes. Between the year 2020 and 2030, road traffic was assumed to grow at an annual rate of 1.5 percent on this road. Park Avenue traffic volumes were not expected to grow from 2005 to 2020 in the FEIS/EIR. Then, the volume was assumed to increase at an annual rate of 3 percent per year to the year 2030. Legacy Road traffic volumes were not available but were assumed to be compa- rable to those on Park Avenue. The same growth rates were used also. The traffic mix and speeds were assumed to stay the same on all roads. A summary of road traffic information used to compute cumulative plus project Ld„ sound levels is given in Table V. TABLE V. Roadway Traffic Volumes and Mixes Assumed to Calculate Cumulative Plus Project L, Sound Levels at the Tustin Legacy Apartments in the City of Tustin. Distance Average Percent Percent Percent Percent Vehicle Road to Near Daily Heavy Medium Trucks Autos at Speed Name Lane, Ft Volume Trucks Trucks at Night Night MPHo Park Ave 11,000 2.0 3.0 6.0 11.0 30/25 Legacy Rd 11,000 2.0 3.0 6.0 11.0 30/25 Tustin Ranch Rd 29,000 2.0 3.0 6.0 11.0 45/40 <- Automobile and truck speed respectively No changes were assumed in air and rail volumes or mixes to the year 2030. Information given in the Existing Sound Source section was used to predict cumulative plus project Ld, sound levels. 5.0 EXTERIOR ACOUSTIC ENVIRONMENT 5.1 Existing As the MCAS redevelopment land is currently undeveloped, no measurements of existing sound levels were made, nor were predictions of existing exterior sound levels completed. The existing CNEL or La. sound levels are not important if there are no receivers to be impacted. 7 R12135: SAP, MS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 5.2 Existing + Project Predicted Ld, sound levels due to road traffic were made using the Federal Highway Administra- tion (FHWA) Highway Noise Prediction Model [8]. The FHWA model was modified to include the CalTrans noise emission levels [9]. Road visibility and ground conditions were considered in calcula- tions of the hourly average sound levels at the worst case position outside each apartment or outdoor area considered. The ground was assumed to be acoustically hard for all vehicle types. The day -night average sound levels were predicted at the project site based on the data given in Table IV for road traffic and for other background sources. Exterior sound levels were predicted for ten positions: seven for the exterior of the apartment walls, three for balconies, and two for common outdoor areas. Predictions for the seven apartments were done at the exterior wall of each of the seven evaluated apartments in what was determined to be the worst position for each The courtyard and pool were evaluated in what was determined to be the worst case spot in terms of exposure to road noise. Three balconies were chosen, each representative of the worst case for each building. Accord- ing to the Noise Element [1], exterior noise standards have to be met in common recreation areas and patios or balconies with a depth of six feet or more. This requirement means that exterior noise stan- dards do not have to be met on the balconies of apartment floor plans B 1, C 1, Al, or A2. Predictions of the exterior Ldn sound level on the balconies were made for approximately three feet front the bal- cony edge. Table VI gives the predicted day -night average sound levels for existing plus project con- ditions at each of these nine positions. TABLE VI. Predicted Day -Night Sound Levels for Existing Plus Project Conditions at the Tustin Legacy Apartments in Tustin. Predicted La„ Sound Level, dB Total Lm„ dB, All Bldg # Unit Type & Heavy Medium Total JW Air- Heavy Other Sources & Type Position Trucks Trucks Auto - mobiles Roadway portta Rail Sources #2,A B2 58 52 59 62 43 42 45 62 #2, A B2, Balcony 55 49 56 59 43 42 45 60* #2, A Cl 58 52 59 61 43 42 45 62 #8, C B2 59 56 65 66 43 42 45 66 #8,C B4 59 56 65 66 43 42 45 66 #8, C B4, Balcony 51 48 56 58 43 42 45 58* #8,C Courtyard 54 51 60 61 43 42 45 62* #10, B B2 60 55 62 65 43 42 45 65 #10, B B2, Balcony 58 52 59 62 43 42 45 62* #10,13 C1 60 57 65 67 43 42 45 67 #l0, B B4 -Alt 59 56 65 66 43 42 45 66 #15, D Rec/Pool 45 42 50 52 43 42 45 54* - John Wayne Airport sound levels are in CNEL rather than Ls„ * - Denotes outdoor areas to which the Noise Element's exterior noise standard applies. 8 1112135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 Existing plus project Ls„ sound levels do not exceed the 65 dB limit in the pool, courtyard, or any of the three balconies. These are the areas of primary concern to which the Noise Element's exterior noise standard applies. The exterior Lm, sound levels are not excessive at any of the buildings also. 5.3 Cumulative + Project Road traffic is expected to remain the dominant sound source influencing the L6, sound levels at the project site to the year 2030. The FHWA model was used to predict the Ldn sound levels for road traffic for cumulative plus project conditions using information in Table V. Though the number of trains and planes is not expected to increase significantly, each of these was increased by 1 dB to ac- count for the worst case scenario. Similarly, the other sound from other secondary sources was in- creased by 2 dB to account for increased activity and varied land uses in the future. Table VII presents the predicted L,,, sound levels at the same nine positions outside the seven apartments and in the Build- ing 8 courtyard and pool area. TABLE VII. Predicted Day -Night Sound Levels for Cumulative Plus Project Conditions at the Tustin Legacy Apartments in Tustin. Predicted La„ Sound Level, dB Bldg #, Unit Type & Heavy Medium Total JW Heavy Other Type Position Trucks Trucks Automobiles Roadway Airportta Rail Sources Total Ly, dB, All Sources #2, A 132 59 54 60 63 44 44 47 64 #2, A B2, Balcony 57 51 58 61 44 44 47 61* 142, A Cl 59 53 60 63 44 44 47 63 #8,C B2 62 59 68 69 44 44 47 69 #8, C B4 62 59 68 69 44 44 47 69 #8, C B4, Balcony 54 51 60 61 44 44 47 61* #8, C Courtyard 57 54 63 65 44 44 47 65* #I0,B B2 63 58 66 68 44 44 47 69 #l0, B 132, Balcony 59 53 60 63 44 44 47 63* #10, B C I 63 60 68 70 44 44 47 70 #10,B 84 -Alt 62 59 68 69 44 44 47 69 #15, D Rec /Pool 48 45 54 55 44 44 47 56* * John Wayne Airport sound levels are in CNEL rather than La„ Denotes outdoor areas to which the Noise Element's exterior noise standard applies. The predicted Ls„ sound level for cumulative plus project conditions at the exterior varies from 56 to 70 dB(A). The Noise Element's 65 dB(A) noise standard applies to the two common recreation areas and the three balconies. All of these spaces meet the noise standard, though the courtyard just meets it with no safety factor. The exterior Ld, sound level at the face of the apartment reaches 70 dB(A). Sound generated by people and animals using the park east/northeast of the Tustin Legacy apart- ments could exceed the Noise Ordinance of the City. Predicting accurately sound levels for these 9 R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 sources is not possible without complete knowledge of the people using the park, what they are doing, where are they doing and the time of day they are doing the activity. If a typical group activity occurs near the west boundary of the park, the sound limits will likely be exceeded. Noise making activity that occurs farther from this boundary will result in little or no impacts. Organized sporting or musical events could result in excess sound at the residences, especially if a sound reinforcement system is used. 6.0 INTERIOR ACOUSTIC ENVIRONMENT The State of California assumes that a 15 dB reduction can be expected from the building exterior to the building interior with the windows open. Thus, any Ld„ sound level greater than 60 dB will cause interior sound levels to be greater than the 45 dB limit [1 ] if the windows or doors are allowed to be open. The Noise Element specifies that the interior noise standard of CNEL 45 dB is with the win- dows closed. The 45 dB limit with a 2 dB margin of safety was used to evaluate the wall construction of the Tustin Legacy apartment buildings. A margin of safety is used because the highway noise pre- diction model is only good to ±1.5 dB(A) and because laboratory test data is used for construction materials. The laboratory data is called the Sound Transmission Class, STC, ratings of building com- ponents. Laboratory construction techniques can seldom be duplicated in the field. The State assumes up to a 5 dB reduction in sound loss from the laboratory to the field. The STC rating of building prod- ucts is used in the calculation of interior Ld„ sound levels. Interior Ld„ sound levels were predicted for bedrooms on the second floor that were closest to the street. Interior Ld„ sound levels are typically higher in smaller rooms, rooms with more than one exte- rior wall, and rooms closest to Tustin Ranch Road which has the highest traffic volume and projected speed. Because no sound measurements were made at the site, road traffic sound spectra measured at another site with similar traffic volumes and speeds was used to calculate interior Ld„ sound levels based on the exterior Ld„ sound level shown in Table VII. The wall construction described in the Pro- ject Description Section was used in the prediction. A 5 dB reduction in the sound transmission was assumed because of the source location outdoors with no reflecting surfaces nearby [ 10]. The sound transmission loss of materials used in exterior constructions was taken from publications by the Na- tional Institute of Tests and Standards [11] and the State of California [12]. Some data was taken from literature published by manufacturers or computed from in house computer models. Table VIII summarizes the predicted interior L1 sound levels for representative units closest to each of the three roads. Exterior Ld„ sound levels shown in Table VII were used for these calculations. Interior Ld„ sound levels are all less than the 45 dB required by the City and less than the re- quired level with a 2 dB(A) margin of safety. Sound impacts will be less than significant and mitiga- tion measures are not required. The predicted results are true assuming the construction materials and practices meet minimum requirements. These general requirements are described in the mitigation section of this report. The influence of road traffic on sleep interference and speech interference was evaluated also. The maximum sound levels in bedrooms will be less than 50 dB(A). This will be sufficient to prevent speech and sleep interference. 10 R12135: SAP, MS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 TABLE VIII. Predicted Cumulative Plus Project Interior La, Sound Levels in Representative 2nd Floor Rooms of Tustin Legacy Multifamily Housing in Tustin. Bldg No. Bldg Type Unit Type Room Name Interior Ld,,, dB 2 A B2 Master Bedroom 32 2 A B2 Bedroom 1 32 2 A C1 Bedroom 1 32 8 C B2 (North) Master Bedroom 38 8 C B4 (North) Master Bedroom 37 10 B B2 Master Bedroom 34 10 B B2 Bedroom 1 37 10 B C1 Master Bedroom 38 10 B CI Bedroom 1 38 10 B Cl Bedroom 2 28 10 B B4 -Alt Master Bedroom 37 7.0 ACOUSTIC IMPACT 7.1 Exterior Impact Exterior La, sound level impacts for cumulative to cumulative plus project conditions due to transportation sound sources are insignificant for multi - family residences. The noise impact due to the absolute Ldo sound is insignificant because the predicted La, sound levels are at or less than 70 dB(A) and because backyards do not exist. The La, sound level on the south side of the club house will be less than 60 dB(A) and this was assumed to be the "backyard" for these units. Sound levels produced by transportation and non - transportation sources associated with this pro- ject could be significant. Sound reduction could be required, but too many unknowns exist. Both administrative and physical sound reduction is possible. 7.2 Interior Impact Interior La, sound level impacts are insignificant for cumulative plus project conditions based on the County's limit 45 dB in habitable spaces. Impacts are insignificant relative to the design goal of 43 dB and the maximum sound level. These conclusions are based on the proposed floor plans and con- struction. All walls and windows must meet minimum acoustical requirements in all areas for these conclusions to be correct. 8.0 MITIGATION MEASURES Exterior sound reduction is not required for this project for transportation sources. Non- transpor- tation sound generated in the park could have a significant impact. Options are included for providing relief for such sources, but they would be implemented only if it is determined that a need exists for such measures. Interior sound reduction is not needed to meet noise limits for transportation sound 11 R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 T sources. General acoustical requirements must be met for any of the conclusions to be accurate. The general requirements are given in the following outline. I. General Requirements A. All joints in exterior walls shall be sealed airtight around windows and doors, at the wall perimeter and at major seams. B. All above ground penetrations of exterior walls by electrical and plumbing components shall include a I/4 to %2 inch airspace around the perimeter. This space shall be filled loosely with fiberglass insulation. The space shall then be sealed airtight on both sides of the wall with a resilient, non - hardening caulking or mastic. C. Basic exterior wall construction for the main prayer hall shall include the following or an equivalent: 1. Minimum 2" x 4" wood studs at a minimum 16 inches on center. 2. Minimum R -11 insulation in the stud cavities, 3. Minimum 5/8" Type X gypsum wallboard fastened to the interior face of the wood studs. The wall shall be fully taped and finished including where perpendicular walls intersect and where the wall meets the ceiling. The base of the walls shall be sealed with a combination of backer rod and resilient, non - hardening caulking, 4. The exterior surface shall be finished with the following or with another product with equal or greater surface weight. a. Minimum 1 -layer of minimum 7/16" shear plywood with b. 2- layers of building paper fastened over plywood. c. I" thick dense insulation applied over building paper and fastened to studs or ply- wood, d. Minimum 20 gauge 1" wire mesh, and e. 1 -coat stucco over wire mesh, D. Windows shall have a minimum STC rating of 29 or better. Windows shall have an air infil- tration rate of less than or equal to 0.20 CFM/lin. ft. when tested with a 25 mile an hour wind per ASTM standards. A good quality window with I/8" float glass, 1/2" airspace, I /a" float glass window should meet this requirement if the seals meet infiltration rates. E. All exterior doors shall have a minimum STC rating of 29. F. Sliding glass shall have a minimum STC 29 rating. G. There shall be no need to open windows, doors or other exterior openings to provide ade- quate ventilation. II. Non - transportation Sound Sources in Park A. Administrative 1. Ensure park is closed for general use by 10:00 p.m. 2. Encourage people to gather at the picnic areas and playgrounds that are farther from the residential boundary. 3. Design park to limit gatherings such as birthday parties from being within 50 feet of the west property line. 12 R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 4 Enforce the restriction on the use of sound reinforcement systems in the park and do not allow the use of such equipment after 8:00 p.m or dusk, whichever comes first. B. Physical Mitigation Measures (If administrative efforts are insufficient. Use only as a last resort) 1. Construction a minimum 6 foot tall sound wall along the boundary between the apart- ments and the park where the current combination solid and open wall is to be built. 2. Any such wall shall have a minimum surface density of 3.5 to 4 lbs. /sq.ft. 3. The wall shall be continuous along its length and height with no gaps or holes. 9.0 REFERENCES 1. Anon., "Noise ", from City of Tustin General Plan, adopted June 17, 2008. 2. Anon., "Chapter 6: Noise Control" in "Article 4: Health and Sanitation ", from City of Tustin Code of Ordi- nances, adopted May 15, 2012. 3. 2007 California Building Code, Appendix Chapter 12 Amended, Division 11A, Sound Transmission Control. 4. Anon., "Tustin Legacy, Tustin, CA, Development Application ", for St. Anton Partners, Sacramento, by Archi- tects Orange, Orange, CA, July 23, 2012. 5. R.S. Williams, L.S. 6654, Hunsaker and Associates Irvine, Inc., Date of Survey: August 2007, Tract No. 17404, in the City of Tustin, County of Orange, State of California. Received via email from St. Anton Part- ners, LLC. 6. Anon., "Table 2: Long Term Measured Aircraft Noise Levels" from JWA Noise Abatement Program Quar- terly Report, retrieved from http: / /www.ocaiccom/ reportspublications /AccessNoise /noiselevels.pdf 7. Anon., Final Environmental Impact Statement/Environmentallmpact Report for the Disposal and Reuse of MCAS Tustin, Volume 2. 8. T.M. Barry & J.A. Readgan, FHWA Highway Traffic Noise Prediction Model, FHWA- Rd -77 -I 08, Federal Highway Administration, Office of Research, Office of Environmental Policy, December 1978. 9. R.W. Hendriks, California Vehicle Noise Emission Levels, FHWA/CA/TL-87/03, Office of Transportation Laboratory, California, Department of Transportation, Sacramento, California, 95819, January 1987. 10. G.E. Mange, S.R. Skate, L.C. Sutherland, Background Report On Outdoor- Indoor Noise Reduction Calcula- tion Procedures Employing The Exterior Wall Noise Reduction (EWNR) Method, FHWA Report TS -77 -220; March 1978. 13 R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 The 11. Anon., Acoustical and Thermal Performance of Exterior Residential Walls, Doors and Windows, NBS Budding Science Series 77, National Bureau of Standards (National Institute of Tests and Standards), Depart- ment of Commerce, 1975. 12. R. DuPree, Catalog of STC and IIC .Ratings For Wall and Floor /Ceiling Assemblies with TL and ISPL Data Plots, Office of Noise Control, California Department of Health Services, Berkeley, California, 1981. 14 Attachment 2 Gate Design Study Septembei 21 201' Ms Rachel Green 5t Anton Partners 1801 1 Street Suite 200 Sacramento ( ahfornia 9.1811 Subject Paiking Assessment Anton Legac. Apartments 141( \S Tustin Specific Plan Disposition Package 1A North Lot 20 Dili Rachel Pursuant to voui request ve arc pleased to ,,ubmit this parking assessment foi Anton Legacy Apartments to address concerns expressed by CAN of l'ustin Staff on the appropriateness of this project providing parking spaces based on State lte affordable housing par king requirements This project is providing 4.35 parking spices while t.he. State parking code requires i total of .372 paiking spaces. and MCAS Tustin Specific Plan rc quires a total of 168 parking spaces Using the ('its, of Tustin specific plan the proposed .:apartment project dot not ccrnph Nvith the ('itA s parking requirements llowevoi this packing, assessment will demonstrate tlr,it the parkin spaces provided by the. proposed apartment project •atc sufficient and will not idverscly impact paiking and circulation within of outside the project area Protect Description St Anton is proposing to develop 225 affordable mulnfamih dwelling unit' in the (.,ity of Tustin MC \S 1 ustin Specific Plain, Disposition Package 1A North The project is located on Lot 20 in tieighboi hood (, of Planning Area ] 5 l'h. lot IS approximately 7 5 acres and hounded by Legac% Road to the north 1 future pink to the east i''ai k \venue to the .south and future Tustin Ranch Road to the west, see kttachment 1 There will be a total of 78 one. bedroom units (35% of total) 117 two bedroom units (52% of total) and 30 three bedroom units (13% of total) The project s dwclhn1., units are further sepal ited into 88 very low income units 77 low income units and 64 moderate income units A total of 435 parking spaces are provided foi residents and guests including• garages tuck under parking and surface paiking The parking ,,pacts are distributed throughout the project site to serve the fifteen buildings The apartment project is subject to parking requirements contained in the City of Tustin MCAS Tustin Specific Plan Chaptci .3 1.3 Off Street Parking The residential off street parking requirements are detailed in Ch ipter 3 13 2 'lahlt 3'1 and include separate requirements foi all must plan disposition parcels except Parcel i6 and tell Parcel 36 on]} Ms Rachel ()men Page Septembea 21 201? The requirements lot condominiums and multiple family are used and arc summarized in Table 1 Table 1 \1CAS Tustin Specific Plan Residential Off Street Parking Requirements l Housing Type Nuinbei of Spaces Required Covered /Assigned Spaces per Unit l\umbei of t nassigned Guest Spaces Condominium Studio and Multiple. Family units 10 1 Bedroom 2 Bedroom 3 Bedroom 1i 20 2.0 4 Bedroom L3 1 Garage oi carport 0 2a pci unit 1 1 Garage oi carport 0 25 pei unit i 1 Garage oi carport 0 25 per unit 1 Garage oi carport ; 0 25 per unit 1( 1 Garage or carport 0 25 per unit Based on the specific plan requirements the proposed apartment project requires 111 parking spaces for residents with .372 of them mat,urage or carport and 5 i guest pm king spaces, foi a total of 468 parking spaces The proposed apartment project also satisfies the State residential off street pai requirements Pei the State of California Government Code Section 65915, one density bonus shall be granted if the housing development contains 10'X foi lowest income households of 5% foi very low income households oi senior citizen housing of l0% foi moderate income households The proposed apartment project contains 34' foi lower income, d9% loi zei•) low income and 28% foi moderate income As the proposed apartment project contains unit percentages far 'above the calculation shown m Section F St Anton is requesting to use the parking ratios show n in Section 1' (see 1'Zb1e 2) Table 2 TSt•itc of ( alifornia Residential Off Street Parkin Requirements Government (,ode 6591a Section P Housing Type On site Parking Spaces 0 to 1 Bedroom 2 to 3 Bedroom 1 and more Bedroom 10 20 25 Based on the State requirements the proposed apartment project requires 372 parking spaces ineluiikc of handieappt,d grid guest parking spaced Ms Rat het Green P•tge September 24 2012 Existing Parking Demand When the City s (.'ode required packing rate foi condominium and multiple family is applied to the proposed apartment project 468 parking spaces are required Howevei when the State's Code required parking rate is applied '372 parking spaces are required Due to the large difference in pai king requirements a pai king accumulation survey was conducted to determine the actual parking utilization it similai sites The counts were conducted at two similar affordable apartment projects in the ('itv of Irvine the Woodbury Walk Apartments and the Monte into Vista Apartments on Wednesday Septcinbei 5 2012 and on Saturday, Septeinbei 8 2012 These two existing apartment locations contain 100% affordable units which is consistent with the proposed apartment project The count hours were 6.00 AM to 9.00 AM and 8 00 PM to 11 00 PM on Wednesdays and 8 00 AM to 12 00 PM on Saturdays all at 30 minute intervals 1'hc Locations and count hours were coordinated with and approved by City of Tustin Staff The existing sites that were used to conduct the counts are shown in Attachment 2 and 3 1'he parking accumulation counts at both existing its arc provided in Appendix A foi reference The existing Woodbur3 Walk 1partments is located in Planning Area 9.1 m the (.a\ of Irvine and has 150 affordable multifalnih dwelling units, out of a total of 190 units There are 30 one bedroom units (20% of total) 71 two bedroom units (49% of total) and 46 three bedroom units (31% of total) '1 total of 266 pinking spaces art provided on site, with 237 regulai spaces (135 single cal garages) 25 guest spaces, and 4 handicap spaces As the parking accumulation counts show the peak parking demand occurred on Wednesday at 6 00 AM and 6 .30AM when 211 regulai spaces (including 135 inside the garages and 3 handicap spaces) and 24 guest spaces were: parked on site The peak parking demand occurred on 5aturdaaN at 8 00 1111 when 207 regulai spaces (including 135 inside the garages and '3 handicap spaces) and 18 guest spices were parked on site To determine the actual parking rate fat the existing apartments 238 vehicles observed on Wednesda) at (3 00 AM was divided by the total dwelling units Rased on this information Woodburx Walk Apartments during the peak period observed was parked at an average rate of 1 59 parking spaces per dwelling units (238 spaces /150 dwelling units) It should be noted that the percentage of 2 bedroom units is similar to the proposed apartment project (49% vs 52 %) but the percentage of 3 bedrexina units is higher (31% vs 13 %) chi unit inia suggests that more parking spaces would be required at Wooclbur) V alk 1partments The existing Montecito Vista Apartments is located in Planning Area 4 in the Caty of Irvine and has 162 affordable rnultifamih dwelling units out of a total of 162 units There are 84 two bedroom units (52% of total) and 78 three bedroom units (48% of total) A total of 347 pai king spaces are provided on site with 319 regulai spaces 12 guest spaces, 6 handicap spaces, 9 community spaces and 1 reserved space As the parking accumulation counts show, the peak parking demand occurred on Wednesday at 6 00 •1M when 230 regular spaces and 4 guest spaces were parked on site The peak parking demand occurred on Saturday at 8 00 AM when 209 regulai spaces and 3 guest spaccii were parked on site To determine the actual parking rate, fin the existing apartments 234 vehicles observed on M5 Rachel Green Page •1 Septernhei 24 201 ednesda' at 6 00 AM was divided bti the total duelling units Based on this information Montecito Vista kpartments during the peak period observed 11 a parked at an average rate of 1 44 parking spaces pei dwelling units (234 spaces /162 dwc.11rnr, units) It should he noted that Ili( percentage. of 2 bedroom units is similar (52% 's 52 %) but the percentage of 3 bedroom units is higher (18% vs 1.3 %) ['he unit mix suggests that more parking spaces would he required at \Inntccito Vista Apartments As can be seen there is a significant difference between the City s cods required parking rate fot condominium and multiple family units shown in Fable 1 (2 08 parking spaces pet dwelling units for the proposed apartment project) ind the observed parking rate of 1 59 spaces and 1 1 1 spaces per dwelling units Using the Institute of Transportation Engineers Parking Generation Manual fth Edition the average peak period parking rate foi low /mid rise apartments is 1 23 vehicles pet dwelling units This rate is similar but lowei to the observed peak parking rate The State code required parking rate for the proposed apartment project is 1 65 vehicles pei dwelling units Using the average observed parking rate (1 52 vehicles per dwelling units) at the existing affordable apartments and applying it to the proposed 225 dwelling units would rcquirc .312 parking spices This is a very close correl•ition to the 372 par king spaces calculated pet the State code Proposed Pat king Demand The proposed Anton Legacy -Apartments located in the ( ity of 1 ustin is providing a total of 4 35 on site parking spaces When tilt City s code required pal king foi condominium and multiple family units is applied to the project 468 parking spaces are required which exceeds the nuinbei of pal king spaces provided by 33 parking spae s Using the average observed parking rate of 1 52 vehicles pei dwelling units ttiould require 342 parking spaces which is a surplus of 93 parking spaces Using the State par king code of 1 65 vehicles per dwelling units would require 372 parking spaces, which is a surplus of 6.3 parking spaces As a comparison the parking rate contained in the institute of 1 ransportation Engineers Parking Generation Manual lth Fdition fo.i low /mid rise apartments would require 277 parking spaces tie filch is a surplus of 158 parking, spaces 1 comparison of the par king rates arc shown in Table. 3 Sourct Rate Table 3 Parking Ratc Cotnparl' on Dwelling Parking I 1_ nits Provided Parking Surplus/ Required Deficit City ) 08 /du .ve..raget' 1 52/du f State 16o /du 1TE('" 1 23/du )25 13; 468 22,) 3:35 3.12 29a 135 i72 22o 1.35 I 277 (1) Average of the two observed parking rates (2) institute of fransportation Engineers 93 63 158 Nis Rachel (.green Paste 5 Septembei 21 201) Parking rates are based on acceptable design criteria that generally use dwelling units as the basis for determining the required parking fat residential developments In the case of Anton Legacy kpartments the parking demand and parking characteristics observed at two similai sites generate a parking rate that is similai to the parking requirements contained in the State. of California Government (~ode b5915 Gate Stacking The site plan prepared by Fuscoe Engineering dated August 27 2012 shows that Anton Legacy Apartments will share an access off of Park Avenue with the future park see Attachment 1 Phis access will be a gated access with the entry /exit gates and call box located past the future park parking drive aisles The gate stacking fin the proposed apartment project is reviewed based on the Count\ of Orange Standard Plan 1107 which is one foot of stacking per dwelling unit Therefore, a minimum of 225 feet of stacking is required All resident and guest parking spaces foi the proposed apartment proieet are located inside the gated area There is an entry and exit gate separated by a 5 foot raised center median Both the entry and exit gates are 2 piece swing gates Residents will access the gate with entry devices (remote) while guests w ill use the call box to gain entia The gates will tike approximately 30 seconds foi one full open close cycle but sensors will re open the gates when additional vehicles are detected It is anticipated that rafter the initial lease period the gates will remain closed during all hours In the event of a powei outage the gates will automatically swing open and stay open until pow ea has been restored The call box is located approximately halt w ay between the future. park drive aisles and the gates In addition there is a turnaround area between the call box and the gates see Attachment 1 The project drive provides full access to the site and future pack and is approximately 10 feet wide at Park Avenue 11 feet wide at the call box and 38 feet at the gates (see Attachment '1) The 4() foot wide cross section of the driv e consists of two inbound lanes and two outbound lanes and a raised center median at the call box The inbound drive consists of two 10 foot wide lanes at the entry and at the call box that narrows down to a single 20 toot wide lane at the gate fhe raised median at the call box is 5 feet wide The outbound drive consists 01 one 1 3 toot wide lane at the gate and one 16 foot wide lane at the call box that widens to one 10 foot wide shared through /left turn lane and a 10 foot wide right turn lane Per Orange County Fire Authority (OCFA) requirements the entry and exit lane at the gates shrill be a minimum of 13 feet There is a secondary gated emergency vehicle access west of the project drive along ark Avenue but it will not be accessible by residents and guests The distance of the guest lane from the prolongation of the curb to the tall box is 173 feet and the resident lane from the prolongation of the curb to the gate is 280 feet l'he total stacking distance for both lanes is 453 feet which is more than the required 225 feet As a worst cast scenario the stacking distance is taken from the prolongation of the exit Iane curb of the future park The distance of the guest lane to the call box is 61 feet and \'ls Rachel Green Page 6 September 24 2012 the resident lane to the gate is 168 feet The total stacking distance under the worst case scenario m 229 feet, which is still more than the required 225 feet The proposed gates are located at the easterly portion of the project site The throat distance from the proposed gates to the first on site drive aisle is 84 feet Pei OC1.A requirements the nunnnum gate setbacks are 27 feet behind the gates and 56 feet in front of the gates Therefore the operation of the gates will not negatively affect the on site circulation The proposed on site garages, tuck under parking and surface parking are distributed throughout the site to serve the fifteen buildings and none are located within the throat area Therefo.re the operation of the gates will not negatively affect the on site parking and distribution As detailed above, the gate stacking distance for tht proposed apartment project is more than the required distance even under the worst case scenario Therefore, the operation of the gates will not negatively affect vehicles utilizing the future park the operation of the gates also will not negatively affect vehicles on Park Avenue Conclusion St Anton is proposing to develop the Anton Legacy Apartments in the City of Tustin w ithin the MCAS Tustin Specific flan arca The proposed 225 multifamily dwelling units are 100% affordable and contain lou•Li income units, lou income units, and moderate income. units The proposed project is providing a total of 135 parking spaces, which is less than the 468 paiking spaces required by Citv of Tustin but more than the 372 paiking spaces required by State of California loo affordable housing developments St Anton is requesting the (application of the State paiking requirements foi affordable housing developments Therefore a parking accumulation study was conducted at two existing similai apartments in the City of lrvinc on a weekday and one weekend day to establish the observed parking ratio The Woodbury Walk Apartments and Montecito Vista Apartments are 100% affordable and simile! sized Based on the results of the study the average observed parking ratio tot both sites is 1 52 spaces per dwelling units whish is significantly different than the parking ratio calculated from City requirements of 2 08 spaces per duelling units However, this compares closely with the parking ratio calculated from the State parking requirements of 1 6o spaces pei dwelling units Applying the State parking requirements will result in a total of 372 parking spaces Therefore the proposed apartment project will have a surplus of 63 parking spaces In addition the unit mix at the two existing apartments suggest that more paiking spaces arc required compared to Anton Legacy Apartments A gate stacking analysis was also conducted foi the Anton Legacy Apartments based on the County of Orange Standard Plan 1107 which is one foot of stacking per dwelling unit for a total of 225 feet of stacking The separate entry and exit gates are 2 piece sing gates with sensors to re open the gates if additional vehicles are detected The inbound drive consists of one 10 foot guest lane and one 10 foot resident lane. which narrows down to a 20 foot lane at the gate The distance of the guest lane from the prolongation of the entry curb is 171 feet and the resident lane to the gate is 280 feet The total stacking distance of 453 feet Ms Rachel (.green P.ige 7 Septcmbet 24 012 is more than the 225 fact of stacking required Hoti111e1 the project drat. is a shared drive with,* future pal k and therefore a worst case scenario tot the stacking past the future park paikink drive aisles w as conducted The distance of the guest lane to the call box is 61 feet and the resident lane to the gate is 168 feet The total stacking distance under the worst cast scenario is 229 feat, which is still more than the required 225 feet The location of the entry and exit gates 1x111 not negatively affect the on site packing and circulation Since the stacking distance is morc than the minimum required, the gates will not ncgativelh affect vehicles utilizing the future park also the gates will not negatively affect vehicles on Park Avenue Please call me if you have any questions regarding the above analysis of 1f you need any additional information Sincerely /4„___ P( tc1 Hsu 1 1" Project \'Ianage) Attachments 1 1I 1 •11111.1 .i' 11i 1 a (111.1IU„.1 1112 R(L 11.1 .u`mg ',t s11 1 t Iii 1, h z Anton Legacy Apartments Attachment 1 onte it. 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C] Attachment F Resolution No. 12 -99 RESOLUTION NO. 12 -99 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING DISPOSITION AND DEVELOPMENT AGREEMENT 2012 -002 BETWEEN THE CITY OF TUSTIN AND LEGACY VILLAS LLC, A SPECIAL PURPOSE ENTITY FORMED BY THE IRVINE COMPANY, FOR 225 AFFORDABLE RESIDENTIAL APARTMENTS, AT DISPOSITION PACKAGE 1A- NORTH, TUSTIN LEGACY (ST. ANTON PARTNERS, LLC). The City Council of the City of Tustin does hereby resolve as follows: The City Council finds and determines as follows: A. That in 2010, the Tustin City Council approved the "Tustin Legacy Disposition Strategy for the Former Master Developer Footprint" for Neighborhoods B, D, E, and G, including Disposition Package 1A -North within Planning Area 15 of Neighborhood G. B. Pursuant to an extensive developer selection process, St. Anton Partners was selected to develop the site and on June 19, 2012, an Exclusive Negotiation Agreement (ENA) was executed with The Irvine Company, on behalf of St. Anton Partners. C. That St. Anton Partners and City of Tustin have completed and desire to enter into Disposition and Development Agreement 2012 -002 to cause the development of 225 affordable multi - family residential apartment homes, including 88 very low- income, 73 low- income, and 64 moderate - income units in compliance with California Government Code Section 65915(1), at Disposition Package 1A -North, Tustin Legacy, to be implemented by St. Anton Partners or its affiliate as may be approved by the City of Tustin. D. That the site is zoned as Planning Area 15, Residential Core, Neighborhood G in the MCAS Tustin Specific Plan (SP -1); and designated MCAS Tustin (MCAS) by the Tustin General Plan. In addition, the project has been reviewed for consistency with the Air Quality Sub - element of the City of Tustin General Plan and has been determined to be consistent with the Air Quality Sub - element. E. It is the City's desire to effectuate development of the Project through the sale, lease and development of the Property in accordance with Disposition and Development Agreement 2012 -002, all in conformance with Governmental Requirements and in substantially the form on file with City Clerk, pursuant to which, among other matters: 1. At conveyance, the City will receive $30,148,000 from the sale of parcels 2A and 1A -North that will be placed in the "Land Sale" account. An independent third party appraisal was conducted by the City; the appraisal confirms that the property is being sold at Resolution No. 12 -99 DDA 2012 -002 Page 2 Fair Market Value. Because of the density bonus and transfer of 120 affordable units to 1A -North, the opinion of value was for the combined parcels 2A and 1A -North. The City will receive $30,148,000 upon the conveyance of parcel 2A, and $1.00 upon the conveyance of 1A -North. 2. The Developer will pay the Tustin Legacy Fair Share Infrastructure Obligation in the amount of $4,324,393 for the construction of infrastructure within the Tustin Legacy project. The Fair Share will be paid by the Developer when the City has opened Park Avenue to public access; public access will be determined by the Director of Public Works. 3. Developer is agreeing to design and construct a 4.7 acre park and facilities that will be dedicated to the City upon completion. The value of the park and facilities are approximately $2,200,000. 4. Currently the property is tax exempt because of City ownership. The moderate income units will be taxable; however, the very low income units and low income units will be tax exempt. In lieu, the Developer has agreed to pay an annual administrative fee equal to the property taxes that the City would normally receive. 5. The City's transaction costs are borne by the Developer. 6. The Developer will pay an annual Community Facilities District (CFD) fee not to exceed 0.15 percent of the imputed assessed value of the property; escalated at 2.0 percent annually. The CFD will be used for essential services and maintenance within Tustin Legacy. F. That on October 16, 2012, the Tustin City Council continued the matter to an adjourned regular meeting on October 30, 2012. G. That on October 30, 2012, the Tustin City Council continued the matter to a regular meeting on November 6, 2012. H. That a public hearing was duly noticed, called, and held on November 6, 2012 by the Tustin City Council. That on November 6, 2012, the Tustin City Council adopted Resolution No. 12 -96 finding that the Project is within the scope of the previously approved MCAS Tustin Final Program EIS /EIR previously certified on January 16, 2001, as amended by Supplement and Addendum and that no new effects could occur and no new mitigation measures would be required and an additional environmental analysis, action or document is not required by the CEQA. The City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457. Resolution No. 12 -99 DDA 2012 -002 Page 3 II. DDA 2012 -002, a copy of which is on file with the Office of the City Clerk, is hereby approved subject to any non- substantive modifications as may be determined necessary as may be approved by the City Manager's office, or as recommended by the City's special counsel or the City Attorney. III. The City Manager is hereby authorized to take such actions, and execute such documents and instruments, as deemed necessary or desirable to implement the terms of the DDA and all attachments to the DDA and other documents as necessary and, upon satisfaction of all conditions and obligations of the Developer thereto and pursuant to the DDA, to transfer the subject site to the Developer. PASSED AND ADOPTED by the City Council of the City of Tustin at an adjourned regular meeting held on the 6th day of November, 2012. JOHN NIELSEN MAYOR ATTEST: PAMELA STOKER CITY CLERK STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN I, Pamela Stoker, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 12 -99 was duly passed and adopted at an adjourned regular meeting of the Tustin City Council, held on the 6th day of November, 2012, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK DDA 2012 -002 (on file with the City Clerk) Attachment G Resolution No. 12 -94 CP 2012 -003, DR 2012 -005, Density Transfer, Density Bonus, Concessions and Incentives RESOLUTION NO. 12 -94 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING CONCEPT PLAN (CP) 2012 -003, DESIGN REVIEW (DR) 2012 -005, DENSITY TRANSFER, DENSITY BONUS, AND CONCESSIONS OR INCENTIVES AUTHORIZED UNDER TUSTIN CITY CODE SECTION 9123 RELATED TO THE PROVISION OF AFFORDABLE HOUSING UNITS IN COMPLIANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65915(1) FOR PROPOSED DEVELOPMENT OF TUSTIN LEGACY DISPOSITION PACKAGE 1A -NORTH — 225 AFFORDABLE MULTI - FAMILY RESIDENTIAL APARTMENT HOMES. (ST. ANTON PARTNERS, LLC). The City Council of the City of Tustin does hereby resolve as follows: The City Council finds and determines as follows: A. That in 2010, the Tustin City Council approved the "Tustin Legacy Disposition Strategy for the Former Master Developer Footprint" for Neighborhoods B, D, E, and G, including Disposition Package 1A- North within Planning Area 15 of Neighborhood G. B. Pursuant to an extensive developer selection process, St. Anton Partners was selected to develop the site and on June 19, 2012, an Exclusive Negotiation Agreement (ENA) was executed by The Irvine Company for St. Anton Partners. C. That St. Anton Partners and City of Tustin have completed and desire to enter into Disposition and Development Agreement 2012 -002, and St. Anton Partners has submitted a proper application for CP 2012- 003, DR 2012 -005, Density Transfer, and Density Bonus requesting authorization to develop 225 affordable residential apartment housing units in compliance with California Government Code Section 65915(1) required for the proposed development of Tustin Legacy Disposition Package 1A -North, to be implemented by St. Anton Partners or its affiliate as may be approved by the City of Tustin. D. That the site is zoned as Planning Area 15, Community Residential, Neighborhood G in the MCAS Tustin Specific Plan (SP -1); and designated MCAS Tustin (MCAS) by the Tustin General Plan. In addition, the project has been reviewed for consistency with the Air Quality Sub - element of the City of Tustin General Plan and has been determined to be consistent with the Air Quality Sub - element. E. That MCAS Tustin Specific Plan Section 4.2.2.A requires the submission of a Concept Plan prior to or concurrent with the submission of a new development proposal within Planning Area 15. The project has been found to comply with the requirements of the MCAS Tustin Specific City Council Resolution No. 12 -94 CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 2 Plan (except as authorized by any approved Concessions and Incentives). After consideration of the proposed project, the Tustin City Council has determined that the proposed project complies with the following MCAS Tustin Specific Plan Concept Plan review criteria. Specifically, the proposed project depicts: 1. Continuity and adequacy of all circulation systems, such as roads, access points, trails, pedestrian ways, and other infrastructure systems needed to serve the project; 2. Continuity and design quality of architecture and renovations proposed, as well as landscape and hardscape theme and treatments; 3. Satisfactory response to the urban design features specified in Chapter 2 and under each Planning Area in Chapter 3 (Note: the proposed project is not changing master planned circulation, utility, traffic and related assumptions provided in Chapter 2 of the MCAS Tustin Specific Plan. No specific design features are provided for multi - family developments in Chapter 3); 4. Conformity with the Non - Residential Land Use/Trip Budget, including authorized adjustments (Note: this criteria is not applicable since the project is a multi - family residential use); and, 5. Compliance with other Specific Plan provisions (Note: project compliance with MCAS Tustin development requirements is documented within the November 6, 2012 staff report provided to the Tustin City Council, (except as authorized by any approved Concessions and Incentives)). F. That MCAS Tustin Specific Plan Section 4.2.4 requires the submission of a Design Review application following or concurrently with submittal of a concept plan, individual development and reuse projects within Planning Area 15. After consideration of the proposed project, the Tustin City Council has determined that the proposed project's design satisfies the following general architectural and site design principles in that: 1. The buildings define and relate to the street edge, with architecture to face the streets. 2. The buildings interface with adjacent residential uses. 3. The architecture is technically sophisticated in detailing. 4. There is a rich palette of natural materials and textures. 5. The architecture proposes visually interesting facade treatments with distinctive architectural elements and design details. 6. The project utilizes varied setbacks, projections, roof lines, windows and reveals, and elements that minimize the impact of the building mass. 7. The buildings are designed with traditional forms, accented by unique architectural shapes and details. City Council Resolution No. 12 -94 CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 3 8. The buildings reflect high quality design through the incorporation of coordinated architecture utilizing elements, materials, and colors that complement the relaxed, informal style. 9. The buildings incorporate smaller -scale architectural details such as porches, bays, recessed or projecting balconies, and dormers to visually reduce the height and scale of the building. 10. The buildings utilize varied building heights. 11. Building fagade articulation is implemented. In addition, the proposed project's location, size, architectural features and general appearance will not impair the orderly and harmonious development of the area, the present or future development therein, the occupancy thereof, or the community as a whole, based upon a consideration of the following criteria: 1. Height, bulk and area of buildings. 2. Setbacks and site planning. 3. Exterior materials and colors. 4. Type and pitch of roofs. 5. Size and spacing of windows, doors and other openings. 6. Towers, chimneys, roof structures, flagpoles, radio and television antennas. 7. Landscaping, parking area design and traffic circulation. 8. Location, height and standards of exterior illumination. 9. Location and appearance of equipment located outside of an enclosed structure. 10. Location and method of refuse storage. 11. Physical relationship of proposed structures to existing structures in the neighborhood. 12.Appearance and design relationship of proposed structures to existing structures and possible future structures in the neighborhood and public thoroughfares. 13. Proposed signing (to be submitted for staff review following project approval) 14. Development guidelines and criteria as may be adopted by the City Council. Also, the project applicant has proposed community gates for the project. After consideration of the proposed project, the Tustin City Council has determined that the proposed use of gates at the project is supportable since the project is of a higher density, is in close proximity to the park, is surrounded by streets on all sides, and will not impact the parking demand, usage, or the vehicular circulation on the site. G. That MCAS Tustin Specific Plan Section 3.2.3 permits the transfer of residential units (density transfer) between parcels subject to review and City Council Resolution No. 12 -94 CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 4 approval. After consideration of the proposed project, the Tustin City Council has determined that the requested Density Transfer is an innovative approach to providing a significant number of affordable units at Tustin Legacy with the requirement that St. Anton Partners and The Irvine Company enter into an Affordable Housing /Regulatory Agreement with the City of Tustin to ensure availability of the 225 and 37 affordable apartment units (respectively) for 55 years. H. That Tustin City Code Section 9141(b) authorizes the submission of an application for a Density Bonus and /or Concession or Incentive to be processed concurrently with any other permit application(s) which require entitlements. The City must support density bonus requests, concessions or incentives when projects provide affordable housing units in compliance with California Government Code Section 65915(1), as authorized under Tustin City Code Section 9123. St. Anton Partners has requested City Council approval of the requested Density Bonus, Concessions and Incentives, including: Parking Authorization to: 1. Provide 434 parking spaces on site instead of the 467 spaces required by the MCAS Tustin Specific Plan. 2. Utilize 88 compact spaces when compact parking is not allowed within the MCAS Tustin Specific Plan. 3. Authorize 225 covered parking spaces instead of the 372 carports and garages required by the code. Common Open Space Authorization to provide 87,822 square feet of common open space instead of the 90,000 square feet required by the MCAS Tustin Specific Plan. Note: the developer is being required to improve the adjacent 4.706 acre site for use as a public park (204,993 square feet of common open space) which should be considered a part of the project). Setbacks Authorization to allow proposed buildings and structures to encroach 4 -12 feet into the MCAS Tustin Specific Plan required 30 foot building setback. Building Height Authorization to exceed the 45 foot maximum building height for Planning Area 15 with one structure that is 62 feet in height. I. That on October 9, 2012, the Tustin Planning Commission held a duly called, noticed, public hearing on the matter and adopted Resolution No. 4205 recommending that the Tustin City Council approve CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus. City Council Resolution No. 12 -94 CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 5 J. That on October 16, 2012, the Tustin City Council continued the matter to an adjourned regular meeting on October 30, 2012. K. That on October 30, 2012, the Tustin City Council continued the matter to a regular meeting on November 6, 2012. L. That a public hearing was duly noticed, called, and held on November 6, 2012 by the Tustin City Council. M. That on November 6, 2012, the Tustin City Council adopted Resolution No. 12 -96 finding that the Project is within the scope of the previously approved MCAS Tustin Final Program EIS /EIR previously certified on January 16, 2001, as amended by Supplement and Addendum and that no new effects could occur and no new mitigation measures would be required and an additional environmental analysis, action or document is not required by the CEQA. The City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457. II. The City Council hereby approves CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus for 225 affordable residential apartment housing units, at Disposition Package 1A -North, Tustin Legacy, with the findings noted above and subject to the conditions contained within Exhibit A attached hereto. PASSED AND ADOPTED by the City Council of the City of Tustin at an adjourned regular meeting held on the 6th day of November, 2012. JOHN NIELSEN MAYOR ATTEST: PAMELA STOKER CITY CLERK City Council Resolution No. 12 -94 CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 6 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 12 -94 was duly passed and adopted at an adjourned regular meeting of the Tustin City Council, held on the 6th day of November, 2012, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK EXHIBIT A RESOLUTION NO. 12 -94 DEVELOPMENT AGREEMENT (DA) 2012 -002, CONCEPT PLAN (CP) 2012 -003, DESIGN REVIEW (DR) 2012 -005, DENSITY TRANSFER, AND DENSITY BONUS, CONCESSIONS OR INCENTIVES AUTHORIZED UNDER TUSTIN CITY CODE SECTION 9123 RELATED TO THE PROVISION OF AFFORDABLE HOUSING UNITS IN COMPLIANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65915(1). CONDITIONS OF APPROVAL GENERAL (1) 1.1 The proposed project shall substantially conform with the submitted plans for the project date stamped November 6, 2012, on file with the Community Development Department, as herein modified, or as modified by the Director of Community Development in accordance with this Exhibit. The Director of Community Development may also approve subsequent minor modifications to plans during plan check if such modifications are consistent with provisions of the Tustin City Code. (1) 1.2 Unless otherwise specified, the conditions contained in this Exhibit shall be complied with as specified, subject to review and approval by the Community Development Department. (1) 1.3 This approval shall become null and void unless the use is established within twelve (12) months of the date of this Exhibit. Time extensions may be granted if a written request is received by the Community Development Department within thirty (30) days prior to expiration. (1) 1.4 Approval of DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus, Concessions or Incentives in compliance with California Government Code Section 65915(1) is contingent upon the applicant and property owner signing and returning to the Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner signing and recording with the County Clerk - Recorder a notarized "Notice of Discretionary Permit Approval and Conditions of Approval" form. The forms shall be established by the Director of Community Development, and evidence of recordation shall be provided to the Community Development Department. (1) 1.5 Ordinance No. 1423 shall be effective. SOURCE CODES (1) STANDARD CONDITION (2) CEQA MITIGATION (3) UNIFORM BUILDING CODE /S (4) DESIGN REVIEW (5) RESPONSIBLE AGENCY REQUIREMENT (6) LANDSCAPING GUIDELINES (7) PC /CC POLICY * ** EXCEPTION Exhibit A Resolution No. 12 -94 DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 2 (1) 1.6 Approval of DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus, Concessions or Incentives in compliance with California Government Code Section 65915(1), including the Housing Agreement and Regulatory Agreement, may be reviewed on an annual basis, or more often if necessary, by the Community Development Director. The Community Development Director shall review the use to ascertain compliance with conditions of approval. If the use is not operated in accordance with the approvals affecting the surrounding tenants or neighborhood, the Community Development Director shall take any action, or may initiate any proceedings permitted by law to enforce the conditions of approval or Agreements and covenants associated with this approval. (1) 1.7 As a condition of approval of DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus, Concessions or Incentives in compliance with California Government Code Section 65915(1), the applicant shall agree, at its sole cost and expense, to defend, indemnify, and hold harmless the City, its officers, employees, agents, and consultants, from any claim, action, or proceeding brought by a third party against the City, its officers, agents, and employees, which seeks to attack, set aside, challenge, void, or annul an approval of the City Council, the Planning Commission, or any other decision - making body, including staff, concerning this project. The City agrees to promptly notify the applicant of any such claim or action filed against the City and to fully cooperate in the defense of any such action. The City may, at its sole cost and expense, elect to participate in the defense of any such action under this condition. (1) 1.8 The applicant shall be responsible for costs associated with any necessary code enforcement action, including attorney's fees, subject to the applicable notice, hearing, and appeal process as established by the City Council by ordinance. (1) 1.9 At the time of plan check submittal, the applicant shall clearly demonstrate compliance with all applicable development standards of the MCAS Tustin Specific Plan and the Tustin City Code on construction drawings. (1) 1.10 Unless otherwise specified, the conditions contained in this Exhibit shall be complied with prior to the issuance of any building permits for the project, subject to review and approval by the Community Development Department. Exhibit A Resolution No. 12 -94 DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 3 USE RESTRICTIONS (1) 2.1 St. Anton Partners has partnered with The Irvine Company, LLC (a respondent - developer approved by the City of Tustin to develop 533 apartments within Disposition Package 2A in Planning Area 13, Neighborhood D of Tustin Legacy) in this effort. The St. Anton /Irvine Company proposal requests the transfer of 120 of 157 affordable housing units from Disposition Package 2A to Disposition Package 1A- North with 120 market rate units to be transferred from Disposition Package 1A -North to Disposition Package 2A. If the request to transfer units is approved by the Tustin City Council, Disposition Package 1A- North would ultimately result in the development of 225 affordable residential apartment units (88 very low income, 73 low income, and 64 moderate income) and Disposition Package 2A would ultimately result in the development of 533 residential apartment units, including 37 moderate income units and 496 market rate units. Prior to the issuance of a first building permit, the applicant (St. Anton) shall enter into a Housing Agreement with the City in a form and substance satisfactory to the City consistent with the requirements of the Specific Plan, the City's Density Bonus Ordinance, the City approved Affordable Housing Plan, Density Bonus Application, and the City's Affordable Housing Policy and compliance with California Health and Safety Code. The Agreement shall contain additional terms and conditions related to the provision of the affordable units required of the project, including but not limited to: 1) identification of the distribution of the affordable units; 2) provisions permitting rental of qualifying affordable households at applicable affordable rents; 3) provisions for maintenance and continued affordability; 4) affordable units will be rented and income restricted for the project for a period of 55 years from the issuance of a certificate of occupancy for the rental project; 5) other governmental requirements. The Affordable Housing Agreement shall be recorded against the development site and the applicant shall be required to covenant and agree for itself, its successors, its assigns, and every successor in interest that no fewer than the required number of residential units shall be constructed and available for rental to and occupancy by very low, low and moderate income households in the amount by income category identified above. A Regulatory Agreement shall also be executed ensuring that the affordable housing units are maintained as approved on each site. (1) 2.2 That St. Anton Partners, LLC, execute and record Development Agreement 2012 -002 provided as approved by the City Attorney (Ordinance No. 1423), to ensure that the project related to DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus, Concessions or Incentives in compliance with California Government Exhibit A Resolution No. 12 -94 DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 4 Code Section 65915(1) is implemented as proposed. (1) 2.3 That St. Anton Partners, LLC, execute and record the Housing and Regulatory Agreement provided as approved by the City Attorney (draft provided as Attachment 1), to ensure that the affordable housing units are available as approved on each site. (2) 2.4 The project shall comply with all applicable mitigation and implementation measures of the Final EIS /EIR, as amended by the Supplement and Addendum. (1) 2.5 That St. Anton Partners, LLC, execute and record the Disposition and Development Agreement (DDA) with the City of Tustin. Any failure to execute the DDA may result in the City pursuing revocation of DA 2012- 002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus, Concessions or Incentives in compliance with California Government Code Section 65915(1). (1) 2.6 Pursuant to the Disposition and Development Agreement (DDA), the project applicant has agreed to construct a public park adjacent to the development. Park design and programming shall be the subject of future review and discussion between the City of Tustin and the developer, consistent with the approved and executed DDA. COMMUNITY DEVELOPMENT — PLANNING DIVISION (1) 3.1 Project construction plans shall comply with the Tustin Noise Ordinance to address any potential interior and /or exterior noise. Noise attenuation measures as recommended by the attached Noise Report (See Attachment 1 of Resolution No. 12 -96) shall be included in the project's construction drawings at plan check. (1) 3.2 At the time of plan check submittal, provide hardscape /landscape plans to include the quantity, species, and size of all trees and planting materials for consistency with Specific Plan and City's Landscape and Irrigation Standards. The landscape plan must comply with the City's new water efficiency ordinance (Ordinance No. 1376). (1) 3.3 Prior to issuance of building permits, provide 15 "x 22" set of plans consistent with plans approved on November 6, 2012. 1. Technical Site Plan Product 2. Parking Plan Product 3. Conceptual Grading /Utility Plan. Include cross - sections and direction of drainage flow with slope in percentage Exhibit A Resolution No. 12 -94 DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 5 4. Architectural drawings (street scene, floor plan, elevations, enhanced elevations) 5. Specific information regarding the quantity of private open space being provided. (1) 3.4 At the time of plan check submittal, the applicant shall submit all exterior materials, colors, and other architectural treatments including details for mailboxes. Indicate color and exterior treatment for review and approval by the Community Development Director and subject to field inspection verification. (1) 3.5 Prior to the issuance of the first building permit, the applicant shall provide the City with details and plans for all signage proposed for the project. (1) 3.6 Prior to the issuance of the first building permit, a Parking Management Plan consistent with the applicant's submitted parking analysis (See Attachment 1 of Resolution No. 12 -96) shall be submitted for approval by the Chief of Police and Director of Community Development. The Parking Management Plan shall identify parking management techniques that will be implemented to minimize the potential for off -site parking issues that would result in an increase in police or code enforcement service calls. (1) 3.7 The applicant or responsible party shall screen or enclose all potentially visible fire sprinkler standpipes and backflow assemblies, devices and valves to the satisfaction of the Community Development Department. (1) 3.8 The Developer shall not oppose or contest any future creation or establishment by the City of Tustin of a landscape and lighting district, master maintenance association, assessment district, or any other method or means consistent with the DDA determined by the City necessary for funding of the maintenance of the public right -of -way, landscape easements, public parks or of the various municipal services and operating expenses associated with Tustin Legacy. COMMUNITY DEVELOPMENT - BUILDING DIVISION (1) 4.1 Plans submitted for building permits must show compliance with the State of California Title 24 accessibility regulations. Site, buildings and swimming pool decks must comply with the appropriate accessibility to persons with disabilities. Dwelling units shall be served by an accessible route and shall be adaptable as required. Exhibit A Resolution No. 12 -94 DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 6 (1) 4.2 At the time of building permit application, the plans shall comply with the latest edition of the codes (2010 building codes, 2011 Green Building Code), City Ordinances, State, Federal laws, and regulations as adopted by the City Council of the City of Tustin. CITY MANAGERS OFFICE (1) 5.1 At the time of plan check submittal, the applicant shall submit all plans, exterior materials, colors, and other architectural treatments for review for conformance to the DDA. PUBLIC WORKS DEPARTMENT - ENGINEERING (1) 6.1 The following plant shall be removed from the proposed Tustin Ranch Road and park site plant pallet: pinus canariensis tree. PUBLIC WORKS DEPARTMENT - GRADING (1) 6.2 This development shall comply with all applicable provisions of the City of Tustin Water Quality Ordinance and all Federal, State, and Regional Water Quality Control Board rules and regulations. (1) 6.3 Preparation of a sedimentation and erosion control plan for all work related to this development shall be required. (1) 6.4 Prior to issuance of a Grading Permit, a final grading plan prepared by a California Registered Civil Engineer, shall be submitted and approved. The plan shall be consistent with the approved site and landscaping plans. (1) 6.5 Prior to issuance of a Grading Permit, a grading bond (on a form acceptable to the City) shall be required. The engineer's estimate, which covers the cost of all work shown on the grading plan, including grading, drainage, water, sewer and erosion control, shall be submitted to the City for approval. (1) 6.6 Prior to issuance of any permits, the applicant shall submit for approval by the Community Development and Public Works Departments, a Water Quality Management Plan (WQMP). 6.7 If the WQMP has been determined to be a Priority WQMP, it shall identify Low Impact Development (LID) principles and Best (1) Exhibit A Resolution No. 12 -94 DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 7 Management Practices (BMPs) that will be used on -site to retain storm water and treat predictable pollutant run -off. (1) 6.8 The Priority WQMP shall identify: the implementation of BMPs, the assignment of long -term maintenance responsibilities (specifying the developer, parcel owner, maintenance association, lessees, etc.), and reference to the location(s) of structural BMPs. (1) 6.9 Prior to submittal of a Water Quality Management Plan (WQMP), the applicant shall submit a deposit of $2,700.00 to the Public Works Department for the estimated cost of reviewing the WQMP. (1) 6.10 Prior to issuance of any permits, the applicant shall record a "Covenant and Agreement Regarding 0 & M Plan to Fund and Maintain Water Quality BMPs, Consent to Inspect, and Indemnification ", with the County Clerk- Recorder. This document shall bind current and future owner(s) of the property regarding implementation and maintenance of the structural and non - structural BMPs as was specified in the approved WQMP. (1) 6.11 Prior to issuance of a Grading Permit, the applicant shall submit a copy of the Notice of Intent (NOI) indicating that coverage has been obtained under the National Pollutant Discharge Elimination System (NPDES) State General Permit for Storm Water Discharges Associated with Construction Activity from the State Water Resources Quality Control Board. PUBLIC WORKS DEPARTMENT — PUBLIC IMPROVEMENTS (1) 6.12 The applicant shall design and construct parkway landscape and irrigation facilities on Tustin Ranch Road from property boundary to Legacy Road, Legacy Road from Tustin Ranch Road to Park Avenue and Park Avenue from Legacy Road to property boundary for all public areas adjacent to and within this project. (1) 6.13 Existing sewer, domestic water, reclaimed water and storm drain service laterals shall be utilized whenever possible. (1) 6.14 The proposed storm drain lateral and manhole along the community entrance shall be designed and constructed within Lot 20 of Tract Map 17404. A manhole shall be constructed to distinguish the limit of public storm drain and private storm drain system. (1) 6.15 Any damage done to existing public street improvements and /or utilities Exhibit A Resolution No. 12 -94 DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 8 shall be repaired to the satisfaction of the City Engineer before issuance of a Certificate of Occupancy for the development. (1) 6.16 All utility lines shall be placed underground by the developer. (1) 6.17 The applicant shall design and install stop sign(s) and restripe the community entrance at Park Avenue. (1) 6.18 The applicant shall design and construct median improvements /hardscape within the raised median on Legacy Road and sidewalks on the south side of Legacy Road adjacent to project site from Tustin Ranch Road to Park Avenue. (1) 6.19 The applicant shall be responsible for connection from the project to the new backbone utility systems unless the new connections are not available until the main portion of the MCAS Tustin is developed. The applicant shall provide easements for any new utilities. (1) 6.20 The applicant shall enter into a landscape maintenance agreement with the City of Tustin for maintenance of parkway improvements within public rights -of -way adjacent to the project along Tustin Ranch Road, Park Avenue and Legacy Road, and the landscape median with callbox and decorative pavers at community entrance. (1) 6.21 The applicant shall design and construct the park and related facilities, and dedicate in fee title Lot MMM of Tract Map 17404 and facilities to the City of Tustin, at no cost to the City. PUBLIC WORKS DEPARTMENT — GRANTS IN FEE AND DEDICATIONS (1) 6.22 The applicant shall submit legal descriptions and sketches of the areas below, current Title Report, applicable back up documents, and plan check deposit to the Public Works Department for review and approval, as prepared by a California Licensed Civil Engineer or California Licensed Land Surveyor. a. Prior to issuance of any Building Permit, the applicant shall provide easements for emergency vehicle access and public services ingress and egress purposes over the private streets and driveways, at no cost to the City. b. The applicant shall dedicate public access and maintenance easements to the City of Tustin for sidewalks within private property along Tustin Ranch Road, Park Avenue, and Legacy Road, at no cost to the City. Exhibit A Resolution No. 12 -94 DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 9 c. The applicant shall dedicate public pedestrian and vehicle ingress and egress on the private portion of the driveway on Park Avenue, from the street to the private gates, to the City of Tustin, at no cost to the City. d. The applicant shall satisfy dedication and /or reservation requirements as applicable, including but not limited to dedication of all required street, drainage and flood control right -of -way easements, pedestrian and vehicular access rights, utility easements and public parks, defined and approved as to specific locations by the City Engineer and other agencies, for this project. PUBLIC WORKS DEPARTMENT — COORDINATION WITH AFFECTED PROPERTY OWNER(S) AND AGENCY(S) (1) 6.23 Prior to any work in the public right -of -way, the applicant shall obtain an Encroachment Permit and pay all the applicable fees to the Public Works Department. (1) 6.24 The applicant shall obtain written approval and /or permits form the applicable utility companies, including but not limited to Southern California Edison (SCE), The Gas Company, Irvine Ranch Water District (IRWD), Cox Communications, etc. PUBLIC WORKS DEPARTMENT — MISCELLANEOUS (1) 6.25 Payment of the Major Thoroughfare and Bridge Fees to the Tustin Public Works Department is required at the time a building permit is issued. The fee rate schedule automatically increases on July 1st of each year. (1) 6.26 In addition to the normal full -size map and plan submittal, all final maps and plans including, but not limited to, tract maps, parcel maps, right -of- way maps, records of survey, public works improvements, private infrastructure improvements, final grading plans, and site plans shall be submitted to the Public Works Department in computer aided design and drafting (CADD) format to the satisfaction of the City Engineer. The standard file format is AutoCAD Release 2009, or latest version, having the extension"DWG". All layering and linotype conventions are AutoCAD -based (latest version available upon request from the Public Works Department). The CADD files shall be submitted to the City at the time plans are approved, and updated CADD files reflecting "as built" conditions shall be submitted once all construction has been Exhibit A Resolution No. 12 -94 DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 10 completed. No project bonds will be released until acceptable "as built" CADD files have been submitted to the City. (1) 6.27 The applicant shall furnish Improvement Bonds (Faithful Performance Bond, Labor & Material Bond on forms acceptable to the City, as required by the City Engineer prior to issuance of an Encroachment Permit for the park, sidewalks and any other improvements in the public right -of -way. (1) 6.28 Prior to submittal of an application for building permits, the applicant shall obtain new addresses for all buildings from the Engineering Division. (1) 6.29 Construction and Demolition Waste Recycling and Reduction Plan (WRRP). a. The applicant/contractor is required to submit a WRRP to the Public Works Department. The WRRP must indicate how the applicant will comply with the City's requirement (City Code Section 4351, et al) to recycle at least 50% of the project waste material. b. The applicant shall be required to submit a $50.00 application fee and a cash security deposit. Based on the review of the submitted Waste Management Plan, the cash security deposit will be determined by the Public Works Department in an amount not to exceed 5% of the project's valuation. c. Prior to issuance of any permit, the applicant shall submit the required security deposit in the form of cash, cashier's check, personal check, or money order made payable to the "City of Tustin ". TUSTIN POLICE DEPARTMENT (1) 7.1 Project gates will be designed and operated in conjunction with the parking assessment (See Attachment 1 of Resolution No. 12 -96), as may be amended from time to time with the approval of the Community Development Director. All pedestrian and vehicle gates shall be accessible to emergency and law enforcement personnel. Please identify and label the location of all pedestrian gates on the construction drawings prior to the issuance of building permit including but not limited to: (a) Knox key switches, submaster keyed to the Police Department, must be installed on all vehicle and common area doors /pedestrian gates controlled by an electronic access control system. For vehicle gates, the keyswitch must be installed in the Exhibit A Resolution No. 12 -94 DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 11 driver's side visitor call box or at a height of 42" and at least 15' from the gate on the driver's side. (b) Knox Boxes, submaster keyed to the Police Department, must be installed on the pool gate and any other common area gate requiring a mechanical key. (c) Click2Enter radio access control system must be installed on the vehicle gates. The units must be programmed to the Tustin Police Department secondary frequency and the Orange County Fire Authority frequency established for Click2Enter. (d) Prior to the issuance of building permits, the applicant must submit to the police department, an Emergency Access Plan noting the location and type of emergency access device to be installed. (e) Wayfinding - Prior to the issuance of building permits, the applicant must submit to the Police Department, a wayfinding plan for both vehicles and pedestrians. ORANGE COUNTY FIRE AUTHORITY (1) 8.1 Prior to issuance of a building permit, the applicant or responsible party shall submit the fire master plan (service code PR145). (1) 8.2 Prior to issuance of a building permit, the applicant or responsible party shall submit the architectural (service codes PR200- PR285), when required by the OCFA "Plan Submittal Criteria Form ". (1) 8.3 Prior to issuance of a building permit, the applicant or responsible party shall submit the underground piping for private hydrants and fire sprinkler systems (service code PR470- PR475). (1) 8.4 Prior to issuance of building permit, the applicant or responsible party shall submit a gate plan (service code PR180). (1) 8.5 Prior to the issuance of building permit, the applicant or responsible party shall submit an underground piping for private hydrants and fire sprinkler systems (service Code PR470 -475). (1) 8.6 Prior to concealing interior construction, the applicant or responsible party shall submit: • The sprinkler monitoring system (service code PR500). • The fire alarm system (service code PR500- PR520) FEES Exhibit A Resolution No. 12 -94 DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus Page 12 9.1 Prior to issuance of building permits, payment shall be made of all applicable fees, including but not limited to, the following (Payment shall be required based upon those rates in effect at the time of payment and are subject to change.): a. Building and Planning plan check and permit fees to the Community Development Department and Engineering plan check and permit fees to the Public Works Department, based on the most current schedule; b. Orange County Fire Authority (OCFA) fees collected by the Community Development Department, based on the most current schedule; c. Major Thoroughfare and Bridge Fees to the City of Tustin collected by the Public Works Department; d. Water and sewer connection fees to the Irvine Ranch Water District; e. School facilities fee in the amount as required by Tustin Unified School District; f. Transportation System Improvement Program (TSIP) Benefit Area B fees; g. New construction tax fees; h. Other applicable Tustin Legacy Backbone Infrastructure Program fees; and i. Within forty-eight (48) hours of approval of the subject project, the applicant shall deliver to the Community Development Department, a cashier's check payable to the COUNTY CLERK in the amount of fifty dollars ($50.00) to enable the City to file the appropriate environmental documentation for the project. If within such forty -eight (48) hour period that applicant has not delivered to the Community Development Department the above - noted check, the statute of limitations for any interested party to challenge the environmental determination under the provisions of the California Environmental Quality Act could be significantly lengthened. Attachment 1 Housing Covenants and Regulatory Agreement CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT BE RECORDED AND EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE SECTION 6103 AND SECTION 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Tustin 300 Centennial Way Tustin, California 92780 Attention: Tustin Housing Authority City Clerk [SPACE ABOVE LINE FOR RECORDER'S USE ONLY] DECLARATION OF AFFORDABLE HOUSING COVENANTS AND REGULATORY AGREEMENT THIS DECLARATION OF AFFORDABLE HOUSING COVENANTS AND REGULATORY AGREEMENT (this "Housing Agreement ") is made and entered into as of , 2012, by and between the TUSTIN HOUSING AUTHORITY, a California Housing Authority (the "Authority ") and the CITY OF TUSTIN, a municipal corporation and public body corporate and politic of the State of California (together with any successor of City, the "City;" and the City together with the Authority sometimes collectively referred to as "Tustin') and ANTON LEGACY TUSTIN L.P., a California limited partnership (as further defined in Exhibit `B ", "Owner "). Tustin and Owner are sometimes referred to herein individually as a "Party" and collectively as the "Parties." All capitalized terms set forth in this Agreement that are not otherwise defined below have the meanings for the same set forth in the Glossary of Defined Terms in Exhibit `B" attached hereto. RECITALS A. The City and Owner have entered into that certain Tustin Legacy Disposition and Development Agreement for Parcel 1 A North, dated as of 2012 (the "DDA "), pursuant to which Owner is required to construct a certain number of Affordable Housing Units (defined in Exhibit B Glossary of Defined Terms) and to provide for the rental of these Affordable Housing Units to Qualified Households at rents that do not exceed the applicable Maximum Monthly Affordable Rents (defined in Exhibit B). City of Tustin / St. Anton Declaration of Affordable Housing Covenants B. Owner holds fee title to that certain real property consisting of an approximately acre site, legally described in Exhibit "A ", attached hereto (the "Property "). Owner acquired its fee title to the Property by that certain Quitclaim Deed from the City, dated , 201, recorded , 201 as Instrument No. in the Official Records in the Orange County Recorder's Office (the "Official Records "). C. On February 3, 2003, the City adopted an ordinance approving the Marine Corps Air Station - Tustin Specific Plan/Reuse Plan, setting forth the zoning and entitlement framework for future development of the former Marine Corps Air Station, Tustin ( "Tustin Legacy "), including the Property. Since its initial adoption, the City has approved numerous Specific Plan Amendments. All references in this Agreement to the "Specific Plan" shall be deemed to refer to the MCAS Tustin Specific Plan/Reuse Plan, as amended and as the same may be amended from time to time. D. Pursuant to the City's Ordinance No. , City Council Resolution No. CC and Planning Commission Resolutions No. and , the City approved the following entitlements for the Property (the "Entitlements "): (i) [site plan and design review approval as approved by the Planning Commission by Resolution No. ]; (ii) a combined density bonus for the Property and the Parcel 2A Property that would allow the transfer of Affordable Housing Units from Lots 29, 38 and 39 of Tentative Tract Map No. 17404 (the "Parcel 2A Property ") to the Property and the development of two hundred twenty-five (225) Affordable Rental Housing Units on the Property, including 88 Very Low Income Units, 73 Low Income Units, and 64 Moderate Income Units (the "Project "), pursuant to SB 1818 (Government Code Sections 65915 to 65918, the "Density Bonus Law ") and the Tustin City Code (the "City Code ") Article 9, Chapter 1 (the "Density Bonus Ordinance "); and (iii) a development agreement between the City and Owner, for development of the Project, pursuant to which Owner provides certain benefits to the City in consideration of the vested rights and other consideration set forth in such development agreement. E. The City has recorded against title to the Property those certain Special Restrictions, dated as of , 2012 (the "Special Restrictions "), recorded in the Official Records on 2012 as Instrument No. , pursuant to which Owner is required to comply with certain restrictions, obligations and limitations related to the ownership and use of the Property. F. The City and Owner have entered into that certain Development Agreement for Parcel I North, dated as of , 2012 (the "DA "), pursuant to which Owner is required to perform certain obligations and provide certain benefits to the City. The DA and the DDA are sometimes collectively referred to as the "Development Agreements." G. The Density Bonus Law and the Density Bonus Ordinance, among other matters, provide for the following: City of Tustin / St. Anton Declaration of Affordable Housing Covenants (1) Pursuant to City Code Section 9122, the City must, upon the request of an applicant, grant a density bonus of up to thirty-five percent (35 %) (the "Mandatory Density Bonus ") when an applicant proposes to restrict twenty percent (20 %) of the Base Unit Count to Low Income Units. In the aggregate, there are 161 Very Low Income Units and Low Income Units proposed to be constructed on the Property, thus exceeding the percentage of Affordable Housing Units required to obtain the maximum Mandatory Density Bonus. (2) The maximum residential density that is permitted by the Specific Plan to be constructed on both the Property and the Parcel 2A Property, on a combined basis, is 192 residential units on the Property and 375 residential units on the Parcel 2A Property (in the aggregate, the 567 residential units permitted on the two properties are the "Base Unit Count "). With application of the 33.7% Mandatory Density Bonus a total of 191 additional residential units may be constructed on the combined parcels of the Property and the Parcel 2A Property. (3) Accordingly, after application of the Mandatory Density Bonus, the Property and the Parcel 2A Property, on a combined basis, may contain an aggregate of 758 residential units. (4) The City has allocated the total residential units between the Property and the Parcel 2A Property as follows: (i) the Property shall contain 225 affordable residential units as further described in this Agreement and (ii) provided that 37 units at the Parcel 2A Property are restricted to Moderate Income Households, the Parcel 2A Property may contain up to 533 residential units. (5) The City has also allocated the total affordable residential units between the Property and the Parcel 2A Property as follows: (i) the Property shall contain 88 Very Low Income Units, 73 Low Income Units, and 64 Moderate Income Units and (ii) the Parcel 2A Property shall contain 37 Moderate Income Units. (6) When an applicant seeks a density bonus on a project that proposes to restrict fifteen percent (15 %) of the Base Unit Count to Very Low Income Households, pursuant to Section 9123 of the Tustin City Code the City must, upon the request of an applicant, grant a total of up to three (3) incentives or concessions. The project proposed for the Property will include 88 Very Low Income Units, out of a total of 567 residential units that are the Base Unit Count on the Property and the Parcel 2A Property. Thus, sixteen percent (16 %), rounded up, of the Base Unit Count will be Very Low Income Units and the projects are entitled to three (3) concessions. In addition, Section 9125 of the Tustin City Code the City provides that the City Council may grant additional assistance to a project to ensure that the development of affordable housing is facilitated, including the granting of concessions. i. One concession requested by the applicant for the Property is an increase in the maximum height of certain structures beyond the 45 foot maximum building height for the Property under the Specific Plan. City of Tustin / St. Anton Declaration of Affordable Housing Covenants ii. A second concession requested by the applicant for the Property is a reduction in the setback on Park Avenue, through an encroachment of 4.5 feet into the Specific Plan required 30 -foot building setback. iii. A third concession requested by the applicant for the Property is the allowance of the following parking spaces for the Project: (A) 434 spaces instead of the 467 spaces required by the Specific Plan; (B) 88 compact spaces that are not permitted by the Specific Plan for residential projects; and (C) 225 covered parking spaces instead of the 372 carports and garages required by the City Code. iv. A fourth concession requested by the applicant for the Property is the reduction in the gross area of on -site Common Open Space such that the Project would contain 87,822 square feet of on -site Common Open Space instead of the 90,000 square feet of on -site Common Open Space required under the Specific Plan. H. In accordance with the allocated affordable dwelling units described above, and in connection with density bonus for the Property and the Parcel 2A Property granted to the City (as the prior owner of those parcels) the City has received approval for a housing incentive agreement required by Section 9142 of the Density Bonus Ordinance, which includes approval of the following: (i) 225 dwelling units in the Project at the Property, of which all 225 units will be reserved for Affordable Housing Units as follows: 88 Very Low Income Units, 73 Low Income Units, and 64 Moderate Income Units; (ii) the concessions described in Recital G above. I. Resolution No. CC requires that prior to recordation of the first final map including, conveyance map, or first building permit, whichever occurs first, the City (and Owner as the successor in interest to the City pursuant to the Quitclaim Deed) is required to enter into a Housing Agreement with Tustin to ensure implementation of the Affordable Housing Requirements of the Specific Plan, the City's Density Bonus Ordinance, the City- approved "Affordable Housing Plan, Density Bonus Application," the City's "Affordable Housing Policy ", compliance with California Health and Safety Code Section 33413(b)(2), and that the entire Project remain a rental apartment project for the entire Term of this Housing Agreement. J. Tustin and Owner enter into this Housing Agreement pursuant to and in accordance with the Density Bonus Law and the Density Bonus Ordinance. This Housing Agreement constitutes the housing incentive agreement required by Section 9142 of the Density Bonus Ordinance. The City has determined that the provisions of this Housing Agreement comply with the Specific Plan, the Density Bonus Ordinance, California Government Code Section 65915, and California Health and Safety Code Sections 33334.3, 33413(b) and 33334.14, and that this Housing Agreement fully satisfies the above - mentioned ordinances and State statutes. K. Conditions of the DDA and the Entitlements require that Owner agree to enforce certain affordable housing restrictions to ensure the affordability of the Affordable Housing Units in the Project. 0 City of Tustin / St. Anton Declaration of Affordable Housing Covenants L. In consideration of Tustin's agreement to support the Project pursuant to Owner's commitments under the Development Agreements and subject to the Special Restrictions and the Entitlements, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Tustin and Owner now desire to enter into this Housing Agreement to set forth their agreement regarding the affordable housing restrictions for the Project and to cause said affordable housing restrictions to run with the land for the benefit of Tustin. AGREEMENT NOW, THEREFORE, Tustin and Owner hereby agree as follows: 1. Local, State and Federal Law. Owner shall carry out the construction of the Project in conformity with the City Code, the Specific Plan, the Special Restrictions, and all applicable Governmental Requirements. 2. Covenants Related to Affordable Housing. Owner, for itself and for all Successor Owners, makes the agreements, representations, warranties and covenants set forth below in this Section 2. 2.1. Construction of Affordable Units. Owner shall construct on the Property a multi - family rental housing Project containing 225 dwelling units. The Project shall include 88 Very Low Income Units, 73 Low Income Units, and 64 Moderate Income Units to be rented to, occupied by, or held available only for rental to Qualified Households at an Affordable Rent subject to the occupancy restrictions contained in this Section 2. 2.2. Identification and Location of Affordable Housing Units. 2.2.1. No Concentration of Affordable Units. During the Qualified Project Period, the Affordable Housing Units shall be located in various buildings and on various floors of the buildings throughout the Project in a manner consistent with the requirements of IRC Sections 42 and 143 and the TCAC Procedures so that the Affordable Housing Units are not concentrated all on a few floors of a building or within a single building in the Project. 2.2.2. Affordable Housing Unit Types. During the first twelve months of the Qualified Project Period, all Affordable Housing Units proposed to be leased by Owner shall first be approved in writing by the Program Administrator as to location of the unit in the Project to ensure compliance with Section 2.2.1. City of Tustin / St. Anton Declaration of Affordable Housing Covenants 2.2.3. Allocation of Affordable Unit Types. The Affordable Housing Units shall be allocated among the units in the Project as follows: Affordable Housing Unit Types Very Low Income Units Low Income Units Moderate Income Units Studio Units 0 0 0 1 Bedroom Units 30 25 23 2 Bedroom Units 46 38 33 3 Bedroom Units 12 10 8 Totals 88 73 64 2.3. Limitations on Tenants and Occupancy of Affordable Housing Units. Owner, for itself and all Successor Owners, hereby covenants that the Affordable Housing Units shall be rented to Qualified Households and in accordance with the following terms: 2.3.1. Owner may not charge or collect any Rent Consideration for an Affordable Housing Unit in excess of an Affordable Rent for such Affordable Housing Unit. 2.3.2. Only one Qualified Household shall be permitted to occupy and reside in an Affordable Housing Unit at any one time. The Affordable Housing Unit shall be used as the principal residence of the adult members of the Qualified Household during the term of any lease and for no other purpose. Neither Owner nor a Qualified Household may lease, sublease, or grant a license or any other right to any other persons to occupy the Affordable Housing Unit, or permit persons who are not members of the one Qualified Household to occupy the Affordable Housing Unit. 2.3.3. The number of persons permitted to occupy the Affordable Housing Unit shall not exceed the occupancy permitted by law. 2.3.4. Owner shall use its best efforts to fill with a Qualified Household each vacancy of the Affordable Housing Units as soon as possible following the date that an Affordable Housing Unit becomes vacant so that at all times there are 225 Qualified Households occupying 225 Affordable Units. The Parties acknowledge that Affordable Housing Units may change their type from time to time (such as a Very Low Income Unit becoming a Low Income Unit) in accordance with this Agreement. Owner is not required to maintain a particular Affordable Housing Unit in a particular location in the Project at all times. However, Owner shall use its best efforts to lease vacant Affordable Housing Units so that the number, income level, and number of bedrooms in all of the Affordable Housing Units in the Project most closely match the requirements in Section 2.2.3. City of Tustin / St. Anton Declaration of Affordable Housing Covenants 2.3.5. If multiple households apply to Owner to occupy a vacant Affordable Housing Unit, and if such prospective tenants are all Qualified Households, then Owner shall lease the Affordable Housing Unit to one such Qualified Household on a first -come, first- served, and non - discriminatory basis, which may be determined by the interest list maintained by Owner. 2.3.6. Owner shall notify the Program Administrator of any Affordable Housing Unit that either (a) fails to be leased to a Qualified Household within thirty (30) days after the issuance of a certificate of occupancy for the Affordable Housing Unit (the "Initial Leasing Period "), or (b) becomes available as a result of a tenant vacating the premises. 2.3.7. During the Initial Leasing Period, Owner shall create and maintain an "interest list" which includes all those potential tenants who have expressed an interest in leasing an Affordable Housing Unit within the Project and who are Qualified Households. The interest list shall be maintained with an order of priority based on a first -come, first -priority basis. Pursuant to Section 2.9.10, the interest list shall also designate whether a Qualified Household is eligible under the City of Tustin's Local Workforce Housing Preference Policy. 2.3.8. During the Initial Leasing Period, to the extent permitted by law, Owner shall first offer Affordable Housing Units to persons on the interest list and with any preferential status that may be applicable pursuant to Section 2.9. 10 under the City of Tustin's Local Workforce Housing Preference Policy. 2.3.9. Each Qualified Household which occupies an Affordable Housing Units at the expiration of the Qualified Project Period and who remains a Qualified Household for the Affordable Housing Unit it occupies on such date shall be permitted to continue to occupy its Affordable Housing Unit for a period of one (1) year, beginning on the first day after the expiration of the Qualified Project Period; provided that the annual rent increase during such one (1) year period shall not exceed an amount equal to the sum of (i) the rent for such unit on the last day of the Qualified Project Period plus (ii) an amount equal to the greater of five percent (5 %) or the increase that would have been permitted had the Qualified Project Period not expired. Except as provided in the preceding sentence, upon the expiration of the Qualified Project Period, the Affordable Housing Units shall no longer be subject to the provisions of this Section 2. 2.3.10. Owner shall deliver written notice to all occupants of the Affordable Housing Units within the Project stating each rent increase, and stating that such rent increase has been made pursuant to all applicable Governmental Requirements, including the TCAC Procedures. 2.3.11. Prior to entering into a lease with a tenant for an Affordable Housing Unit, Owner shall first make a determination that such tenant is a Qualified Household in accordance with Section 2.9. City of Tustin / St. Anton Declaration of Affordable Housing Covenants 2.3.12. Voucher Holders. Owner shall not refuse to lease a Very Low Income Unit or a Low Income Unit to a Qualified Household if such Qualified Household is a holder of a certificate or voucher under 24 CFR Part 982 Section 8 Rental Certificate Program or Section 8 Rental Voucher Program or to the holder of a comparable document evidencing participation in a tenant -based assistance program, solely because of the status of the Qualified Household as a holder of such certificate of family participation, rental voucher, or comparable tenant -based assistance document. 2.4. Rental Rates and Changes to Rent. 2.4.1. Maximum Monthly Affordable Rent. Each Affordable Housing Unit shall be leased to a Qualified Household for monthly Rent Consideration in an amount not to exceed the applicable Maximum Monthly Affordable Rent for such Affordable Housing Unit, calculated in accordance with the definition for "Maximum Monthly Affordable Rent' in Exhibit `B" and as described in Section 2.4.2. The Maximum Monthly Affordable Rent for each Affordable Housing Unit shall be calculated initially as of the date an Affordable Housing Unit is leased to a tenant, and annually thereafter, but not later than the Outside Rent Calculation Date. The "Outside Rent Calculation Date" for each calendar year means the date that is sixty (60) days after the date on which the California Department of Housing and Community Development publishes its list of maximum affordable rents (the "HCD List') during such calendar year. Owner shall deliver to the City their proposed list of Maximum Monthly Affordable Rent for each Affordable Housing Unit in the Project (the "Proposed List') no later than the Outside Rent Calculation Date. The City shall have thirty (30) days after receipt of the Proposed List to approve the Proposed List or to provide Owner with suggested corrections to the Proposed List so that the Proposed List will comply with the maximum affordable rents permitted under this Agreement. Owner shall modify the Proposed List and resubmit the same to the City for approval to address any corrections suggested by the City. If the City fails to approve or provide corrections to a Proposed List within thirty (30) days after receipt of the same, then the Proposed List shall be deemed to be approved on the thirty-first day after receipt by the City; but only to the extent the Proposed List otherwise complies with the maximum affordable rents that would be permitted under the HCD List. Owner shall not charge Rent Consideration for an Affordable Housing Unit that exceeds the applicable Maximum Monthly Affordable Rent for such Affordable Housing Unit set forth on the most recently approved (or deemed approved) Proposed List. 2.4.2. Adjustments to Rent. Owner shall, in accordance with Section 2.9, re- examine the income of each Qualified Household that is a tenant living in an Affordable Housing Unit at least annually to confirm that such tenant household remains a Qualified Household. The Maximum Monthly Affordable Rent shall be recalculated by Owner and reviewed and approved by the Program Administrator annually, and may change as changes in the applicable gross rent amounts, the income adjustments, or the monthly allowance for utilities and services warrant. Owner shall not impose on a tenant an increase in rent approved by the Program Administrator if that increase is not permitted to be imposed under the lease between Owner and the tenant. Owner shall provide not less than thirty (30) days prior written City of Tustin / St. Anton Declaration of Affordable Housing Covenants notice to affected tenants before implementing any increase in rents. In establishing Maximum Monthly Affordable Rent for each household, Owner shall not exceed the rental amounts specified on the City Maximum Rent List, unless such list is not published on or before the date that is 45 days following the publication of the HCD List, in which event Owner shall not exceed the rental amounts specified on the HCD List. 2.5. Minimum Rents. Notwithstanding the other provisions of this Section 2, the Maximum Monthly Affordable Rent for each Affordable Housing Unit shall not be less than the Maximum Monthly Affordable Rent for such Affordable Housing Unit that Owner would have been permitted to charge for such Affordable Housing Unit on the date of this Housing Agreement, assuming that such Affordable Housing Unit was occupied by a Qualified Household of a size equal to one person per bedroom in such Affordable Housing Unit. 2.6. Rent Schedule and Utility Allowances. The Program Administrator shall annually review and approve rents proposed by Owner for the Affordable Housing Units to determine that Owner has properly applied the restrictions contained in this Section 2. The Program Administrator shall from time to time provide Owner with a schedule establishing the monthly allowances for utilities and services to be paid by the Qualified Households who occupy the Affordable Housing Units. 2.7. Increases in Tenant Income. 2.7.1. Over- Income Units. If, as a result of the annual verification of incomes required pursuant to Section 2.9.5, Owner determines that a household occupying a Very Low Income Unit or a Low Income Unit has Income that exceeds 140% of the then applicable income limit for such Unit, then such Unit shall be an "Over- Income Unit". An Over - Income Unit shall remain an Affordable Housing Unit; provided that such Unit shall be deemed to be a Low Income Unit or a Moderate Income Unit, as applicable, based upon the actual Income for such household at the time of the Income Verification. In such event, Owner shall lease the next available Affordable Housing Unit in the Project (regardless of its previous characterization) to a Qualified Household that is a Very Low Income Household if the Over - Income Unit was previously a Very Low Income Unit, or to a Low Income Household if the Over - Income Unit was previously a Low Income Unit. As an example of the foregoing and not in limitation thereof, if a tenant is a Very Low Income Household when such tenant first leased a Very Low Income Unit, and such tenant subsequently provides an Income Verification that shows such tenant to have the income of a Moderate Income Household, then the Affordable Housing Unit occupied by such tenant shall be a and shall thereafter be deemed to be a Moderate Income Unit. 2.7.2. Over- Income Moderate Income Units. If, as a result of the annual re- examination of incomes required pursuant to Section 2.9.51 Owner determines that the income of a tenant in an Affordable Housing Unit exceeds the income to qualify as a Moderate Income Household, then the dwelling unit occupied by such household shall remain an Affordable Housing Unit until the next annual Income Verification. If, at the subsequent Income City of Tustin / St. Anton Declaration of Affordable Housing Covenants Verification, the income of the tenant occupying the unit again does not qualify, then Owner shall request that such tenant vacate the Unit within one hundred eighty (180) days after such subsequent Income Verification date. If such tenant fails to consensually vacate the Unit within such 180 -day period, then Owner shall commence eviction proceedings and shall prosecute such proceedings to completion, causing the tenant to vacate the Unit. 2.7.3. Vacant Units. At all times, Owner shall attempt to lease vacant Affordable Housing Units so that the number, income level, and number of bedrooms in all of the Affordable Housing Units in the Project most closely match the requirements in Section 2.2.3. Notwithstanding anything in this Section 2.7 to the contrary, at all times during the Term of this Housing Agreement, there shall never be fewer than 225 Affordable Housing Units in the Project either (a) rented to Qualified Households in accordance with the requirements of Section 2 or (b) available for rent pursuant to Section 2 and of a type and in a location consistent with Section 2.2. A vacant Affordable Housing Unit will continue to be treated as an Affordable Housing Unit provided that (1) reasonable attempts are made to rent the dwelling unit, and (2) no other Units of comparable or smaller size in the building are rented to persons who are not Qualified Households. 2.7.4. Allocation of Units. Notwithstanding the foregoing provisions, it is the intent of this Housing Agreement that all of the Affordable Housing Units shall be allocated among Moderate Income Units, Low Income Units, and Very Low Income Units and positioned within the Project, as provided in Section 2.2. In the event the application of the provisions in this Section 2 result in an allocation of Affordable Housing Units different from that provided in Section 2.2.3, Owner shall lease the next available Affordable Housing Unit to a Qualified Household (whether Moderate Income Household, Low Income Household, or Very Low Income Household, as the case may be), in order to correct the allocation. 2.8. Rental Agreements for Affordable Housing Units. 2.8.1. Rental Agreement. 2.8.1.1. The rental agreement for an Affordable Housing Unit must be for an initial term of not less than six (6) months, unless the Program Administrator provides prior written approval. 2.8.1.2. The rental agreement for an Affordable Housing Unit shall prohibit the tenant from subleasing or licensing the premises and shall prohibit the tenant from allowing any persons who are not members of the Qualified Household that is the tenant from occupying the unit. 2.8.1.3. The rental agreement for an Affordable Housing Unit shall include the right of Tustin to inspect the interior of the Affordable Housing Unit with prior notice of not less than forty -eight (48) hours. 10 City of Tustin / St. Anton Declaration of Affordable Housing Covenants 2.8.2. Tenant Protections The rental agreement for an Affordable Housing Unit may not contain any of the following provisions: 2.8.2.1. Any agreement by the tenant to admit guilt or to a judgment in favor of Owner in a lawsuit brought in connection with the lease. 2.8.2.2. Any agreement by the tenant that Owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the Unit after the tenant has moved out of the Unit. Owner may dispose of such personal property in accordance with applicable State law. 2.8.2.3. Any agreement by the tenant not to hold Owner or its agents legally responsible for any action or failure to act, whether intentional or negligent. 2.8.2.4. Any agreement of the tenant that Owner may evict the tenant or household members without notice to the tenant. 2.8.2.5. Any agreement by the tenant that Owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties. 2.8.2.6. Any agreement by the tenant to waive any right to a trial by jury. 2.8.2.7. Any agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease. 2.8.2.8. Any agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by Owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. 2.8.3. Termination of Tenancy. Owner may not terminate the tenancy or refuse to renew the lease of a Qualified Household except for violation of the terms and conditions of the lease; for violation of applicable federal, State, or local law; or for other good cause. Any termination or refusal to renew must be preceded by not less than sixty (60) days by Owner's service upon the tenant of a written notice specifying the grounds for the action. 2.9. Qualified Households: Records and Reports. 2.9.1. Certificate Regarding Affordability Commencement Date. Within thirty (30) days after the Affordability Commencement Date has occurred, Owner shall execute and deliver to the Program Administrator a copy of a certificate identifying the Affordability Commencement Date and the last day of the Qualified Project Period, which 11 City of Tustin / St. Anton Declaration of Affordable Housing Covenants certificate shall be in the form provided by Program Administrator or otherwise approved by Program Administrator. Owner shall record a copy of such certificate against title to the Property in the Official Records. 2.9.2. Verification of Income. Prior to considering a household as a tenant for an Affordable Housing Unit, Owner shall obtain from the applicant a complete verification of income qualification, on a form that contains all of the information required by IRC Sections 42 and 143 and the TCAC Procedures or in some other manner approved in writing by the Program Administrator (the "Verification of Income "). Prior to the renewal or extension of the term of any lease for an Affordable Housing Unit, Owner shall obtain from the Qualified Household a current Verification of Income. The Parties agree that so long as the Verification of Income is performed prior to the renewal or extension of the term of any lease, if Owner complies with the income verification procedures established by TCAC from time to time as contained in California Code of Regulations, Title 4, Division 17, Chapter 1, as amended from time to time, and as set forth on the website (http: / /www. treasurer .ca.gov /ctcac /compliance.asp), or any successor website or other published set of procedures, as may exist from time to time (collectively, the "TCAC Procedures "), then Owner's compliance with the TCAC Procedures shall be deemed to be compliance with the requirements in this Section 2.9.2. 2.9.3. Procedure. Owner shall make a diligent and good -faith effort to verify that the information provided by an applicant in the Verification of Income is accurate by taking the following steps, as a part of the verification process: (l) copy of driver's license or Government issued identification card for all adult household members; (2) obtain pay stubs for the most recent one -month period; (3) obtain income W -2 Wage and Earning Statements and tax returns for the most recent tax year; (4) obtain proof of legal residency (unless requiring proof of legal residency is prohibited by law); and (5) obtain any other information or documents that may then be required under IRC Sections 42 and 143 and/or the TCAC Procedures. In the alternative, if approved by the Program Administrator, the following may be submitted (a) proof of residency (unless requiring proof of legal residency is prohibited by law) and (b) either (i) income verification from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (ii) if the applicant is unemployed, does not have income tax returns or is otherwise unable to provide other forms of verification as required above, obtain another form of independent verification satisfactory to the Program Administrator. The Parties agree that so long as Owner obtains proof of legal residency as part of the Income Verification, then Owner's additional compliance with the TCAC Procedures shall be deemed to be compliance with the requirements in this Section 2.9.3; provided that if requiring proof of legal residency is prohibited by law, then Owner's additional compliance with the TCAC Procedures alone shall be deemed to be compliance with the requirements in this Section 2.9.3. 12 City of Tustin / St. Anton Declaration of Affordable Housing Covenants 2.9.4. Qualified Household. A "Qualified Household" is any household of persons that has completed the Verification of Income qualification and for which Owner, in good -faith pursuant to Section 2.9.3 has confirmed that such household is either (a) a Moderate Income Household if a potential tenant for a Moderate Income Unit, (b) a Low Income Household if a potential tenant for a Low Income Unit, or (c) a Very Low Income Household if a potential tenant for a Very Low Income Unit, in each case calculated using the definition of Income set forth in Exhibit "B" to this Agreement. 2.9.5. Files. Owner shall obtain, complete and maintain on file Verifications of Income qualification, from each Qualified Household that executes a lease for an Affordable Housing Unit, including (i) a Verification of Income dated immediately prior to the date of initial occupancy by such Qualified Household and (ii) thereafter, annual Verifications of Income which must be dated as of June 1 st of each year, or such other date as may be mutually agreed upon by the Program Administrator and Owner. Annual Verifications of Income shall be obtained by Owner for each tenant occupying an Affordable Housing Unit not less than once in every twelve -month period following such Qualified Tenant's occupancy of a unit in the Project. 2.9.6. Certificate of Continuing Program Compliance. A copy of the most recent Verification of Income for Qualified Household for each occupied Affordable Housing Unit shall be attached to the Certificate of Continuing Program Compliance, in the form provided by Program Administrator or otherwise approved by Program Administrator, which is to be filed with the Program Administrator no later than the fifteenth (15'h) day of each month following the receipt by the Program Administrator of the Completion Certificate to and including the month in which the Affordability Commencement Date has occurred. After the Affordability Commencement Date, the Certificate of Continuing Program Compliance shall be delivered by Owner to the Program Administrator no later than June 1 of each calendar year during the Qualified Project Period. 2.9.7. Records. Owner will maintain complete and accurate records pertaining to the Affordable Housing Units and will permit any duly authorized representative of Tustin, without limitation, to inspect the books and records of Owner pertaining to any of the following: (a) the occupancy of the Affordable Housing Units,; (b) the Verification of Income; (c) the calculation of the Administrative Fee; and (d) the calculation of the Net Operating Income. 2.9.8. Contents of Certificate. Owner will prepare and submit to the Program Administrator no later than June 1 of each calendar year during the Qualified Project Period, a Certificate of Continuing Program Compliance executed by Owner with the following information: 2.9.8.1. The number of the dwelling units of the Project which were occupied, pursuant to Section 2.1 above, by Qualified Households during such period and such other tenant information as may be reasonably required as stated on the form of the Certificate of Continuing Program Compliance acceptable to the Program Administrator; and 13 City of Tustin / St. Anton Declaration of Affordable Housing Covenants 2.9.8.2. A statement that either (i) no uncured default has occurred under this Housing Agreement or (ii) a default has occurred, in which event the Certificate shall describe the nature of the default in detail and set forth the measures being taken by Owner to remedy such default. 2.9.9. Lease Provisions. Each lease or rental agreement for an Affordable Housing Unit shall contain a provision to the effect that Owner has relied on the Verification of Income and supporting information supplied by the tenant in determining qualification for occupancy of the particular Affordable Housing Unit and that any material misstatement in such verification (whether or not intentional) will be cause for immediate termination of such lease or rental agreement. Each such lease or rental agreement shall also provide that the tenant's income is subject to annual verification in accordance with this Section 2.9, and that, if Owner obtains a Verification of Income from any household and determines that such household's income exceeds the income limit for a Moderate Income Household, then such tenant's lease shall be subject to termination in accordance with Section 2.7.2 on such prior notice as the Program Administrator deems reasonable or may be subject to rent adjustment pursuant to Section 2.7. 2.9.10. Local Workforce Housing Preference Policy. To the extent permitted by law, in marketing and renting units to Qualified Households, Owner shall establish a priority system that ensures that prospective rental applicants who are currently employed in or currently residing in the City of Tustin have priority over other applicants who do not currently reside or are not employed in the City of Tustin (hereinafter referred to as the "Local Preference Policy ", adopted by the Tustin City Council on November 6, 2007). For a prospective tenant to be granted priority in leasing an Affordable Housing Unit under the Local Preference Policy, the applicant shall demonstrate to Owner a minimum of six months of current employment or current residency in the City. Owner shall refer to the Local Preference Policy for detailed information required to be submitted by Owner for verification of residency and local employment and to ensure Owner's compliance with the Local Preference Policy. 2.10. Termination of Affordable Housing Covenants. The provisions of this Section 2 shall terminate in their entirety on the date that is 365 days after the last day of the Qualified Project Period. 2.11. Payment of Fees and Tax Equivalent Payments. 2.11.1. Administrative Fee. From and after the Completion of Construction, if there is a Property Tax Exemption in any Fiscal Year during the Term of this Agreement, then on April I immediately following such Fiscal Year, Owner shall pay to the City an administrative fee (the "Administrative Fee ") in an amount equal to $7,853.00 (as such amount will be increased as set forth below). The Administrative Fee shall increase each calendar year by two percent (2 %) and shall be payable in each year until the date that the Property Tax Exemption ceases to apply to the Property. 14 City of Tustin / St. Anton Declaration of Affordable Housing Covenants 2.11.2. Administrative Fee Payable from Net Operating Income. Owner shall only be obligated to pay the Administrative Fee from Net Operating Income (defined below). If the Net Operating Income in any calendar year is insufficient to allow Owner to pay some or all of the then unpaid Administrative Fee, then the unpaid portion of the Administrative Fee shall not be payable and shall not accrue or cumulate and Owner shall not be obligated to pay such Administrative Fees out of future Net Operating Income. 2.11.3. Net Operating Income. "Net Operating Income" for purposes of this Section 2.11 means Gross Revenues less Operating Expenses. 2.11.3.1. "Gross Revenues" means all gross income and all revenues of any kind from the Project in a calendar year, including without limitation, Rent Consideration, late charges, vending machine income, commercial income (if any), proceeds of business interruption insurance, and any other revenues of whatever kind or nature from the Project; except that interest on security deposits and required reserves, and the proceeds of loans, advances from any partner of Owner, refinancings, condemnation, insurance claims (other than business interruption insurance), and partner capital contributions, shall not be considered Gross Revenue. 2.11.3.2. "Operating Expenses" means actual, reasonable, and customary costs, fees and expenses directly incurred, paid, and attributable to the operation, maintenance and management of the Project in a calendar year, calculated on an accrual basis, including: payment of any required financial obligation including but limited to debt service on any loan or advance required under any agreement with Owner, painting, cleaning, repairs, maintenance, alterations, landscaping, utilities, refuse removal, certificates, permits and licenses, sewer charges, real and personal property taxes, assessments, insurance, security, advertising and promotion, janitorial services, cleaning and building supplies, purchase, repair, servicing and installation of appliances, equipment, fixtures and furnishings which are not paid from the capital replacement reserves, air monitoring expenses (if applicable), property and partner management fees, development fees, and fees and expenses of accountants, attorneys and other professionals, and establishment and maintenance of any required reserves under the Loan Documents (or as may be required by a qualified tax credit investor in Owner) and such reserves shall not exceed 2% of the applicable year's Gross Revenues. The Operating Expenses shall not in include non- cash expenses such as depreciation or amortization or accrued principal and interest expense on deferred payment debt or any capital expenditure that is part of the initial development costs of the Project. 2.11.4. Payment of Administrative Fee. The Administrative Fee shall be payable to the City of Tustin, c/o the Office of the City of Tustin Finance Director, at 300 Centennial Way, Tustin, California 92780, or at such other place or places as the City from time to time may designate by written notice to Owner. 15 City of Tustin / St. Anton Declaration of Affordable Housing Covenants 2.11.5. Interest on Late Administrative Fees. If the Administrative Fee is not paid when due then Owner shall also pay to the City interest on the unpaid Administrative Fee calculated at the rate of eight (8 %) simple interest per annum, until paid. 2.11.6. Late Payment Penalty. If the Administrative Fee is not paid when due, then Owner shall also pay to the City a penalty payment equal to ten percent (10 %) of the unpaid Administrative Fee; provided that this penalty shall not apply to unpaid Administrative Fees that are no payable due to lack of Net Operating Income as described in Section 2.11.2. 3. Non - Discrimination Covenants. Owner for itself and all Successor Owners, hereby represents, warrants and covenants as follows: 3.1. Obligation to Refrain from Discrimination. There shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or any portion thereof, nor shall Owner itself or any person claiming under or through it (including any tenant) establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property or any portion thereof. All deeds, leases or contracts shall contain or be subject to substantially the following non - discrimination or non - segregation clauses: 3.1.1. In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." 3.1.2. In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use, 16 City of Tustin / St. Anton Declaration of Affordable Housing Covenants occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." 3.1.3. In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." 4. Maintenance of the Project. Owner and all Successor Owners shall maintain the Property, at their sole cost, in accordance with the requirements of the Special Restrictions. 5. Sale or Transfer of the Proiect. 5.1. Limitations on Transfers. During the period (the "Initial Period "), commencing on the date of this Agreement and ending on the later of (a) the date Owner receives a Certificate of Compliance for the Project under the DDA or (b) the Affordability Commencement Date, Owner shall not (except for "Permitted Transfers" (as such term is defined in the DDA)) voluntarily sell, transfer or otherwise dispose of the Property, or any portion thereof (other than for individual tenant use as contemplated hereunder), without (a) obtaining the prior written consent of the Program Administrator and (b) having the Successor Owner assume the Owner's obligations under this Housing Agreement with respect to that portion of the Property acquired by the Successor Owner. 5.1.1. Reasonable Consent to Transfer. During the Initial Period, if Owner requests the consent of the Program Administrator for a sale, transfer or disposition of the Project, the Program Administrator's consent shall not be unreasonably withheld or delayed if the following conditions are satisfied: (A) (1) Owner is not in default under this Agreement or the purchaser or assignee undertakes to cure any default of the Owner to Program Administrator's reasonable satisfaction; (2) the Program Administrator determines that the operation of the Project by the transferee would comply with the provisions of this Agreement; (3) either (a) the transferee or its property manager has at least three years' experience in the ownership, operation and management of comparable rental housing projects, and at least one year's experience in the ownership, operation and management of rental housing projects containing below - market -rate units, without any record of material violations of discrimination restrictions or other state or federal laws or regulations or local governmental requirements applicable to such projects, or (b) the purchaser or assignee agrees to retain a property 17 City of Tustin / St. Anton Declaration of Affordable Housing Covenants management firm with the experience and record described in subclause (a) above, or (c) the transferring Owner or its management company will continue to manage the Project for at least one year following such transfer and during such period will provide training to the transferee and its manager in the responsibilities relating to the Affordable Housing Units; and (4) the transferee does not have pending against it, and does not have a history of significant and material building code violations or complaints concerning the maintenance, upkeep, operation, and regulatory agreement compliance of any of its projects as identified by any local, state or federal regulatory agencies; (B) the execution by the transferee of any document reasonably requested by the City with respect to the assumption of the Owner's obligations under this Agreement; (C) the delivery to the City of an opinion of the transferee's legal counsel to the effect that this Agreement is valid, binding and enforceable obligations of the transferee, subject to bankruptcy and other standard limitations affecting creditor's rights; and (D) the receipt by the City of all fees and/or expenses then currently due and payable to the City under this Agreement. 5.1.2. Release of Owner Upon Transfer. During the Initial Period, the written consent of the Program Administrator to any transfer of the Project shall constitute conclusive evidence that the transfer is not in violation of this Section 5.1. If the approved transferee as a Successor Owner assumes all of the Owner's obligations under this Housing Agreement with respect to that portion of the Property acquired by the Successor Owner, then in such case, the transferring Owner shall be fully released from its obligations hereunder to the extent such obligations have been fully assumed in writing by the Successor Owner. 5.1.3. Permitted Transfers. During the Initial Period, Owner may make Permitted Transfers without the Program Administrator's prior consent. The City acknowledges that a sale or exchange of 50% or more of the capital and profits interests in the Owner in any twelve -month period will be treated for federal tax purposes as a change in ownership of the Project at the time the 50% transfer occurs, but shall not be deemed a transfer under this Housing Agreement if there is no Transfer of Control (as such term is defined in the DDA) of Owner as a result of such transfer. 5.1.4. Termination of Limitations on Sale. The provisions of Section 5.1 shall terminate in their entirety on the date that is one (1) day after the end of the Initial Period. On such termination date for this Section 5.1 all references to the DDA in this Section 5. 1, shall be of no further force or effect. 5.2. Assignment of Obligations. If the Program Administrator approves the sale of the Property, Owner shall cause the purchaser of the Property to assume in writing all of the obligations of Owner under this Agreement pursuant to an assignment agreement approved by the Program Administrator (the "Assignment Agreement "), and Owner and the purchaser shall cause the Assignment Agreement to be recorded in the Official Records of the County of Orange against the purchaser's portion of the Property. When the approved Assignment Agreement is recorded as required, then Owner shall be released from the obligations of this Agreement for that portion of the Property transferred in fee to the purchaser. 18 City of Tustin / St. Anton Declaration of Affordable Housing Covenants 6. Effectiveness of Housing Agreement. This Housing Agreement and all and each of the provisions hereof shall become effective upon its execution and delivery and shall remain in full force and effect thereafter except as expressly provided herein. The provisions of this Housing Agreement are intended to survive the expiration or termination of the Development Agreements. The terms of this Housing Agreement to the contrary notwithstanding, the requirements of this Housing Agreement, other than Section 2, shall be suspended and shall be of no further force and effect during the period (the "Suspension Period ") commencing on the Involuntary Transfer Date (defined below) and ending on the Suspension End Date (defined below). On the day after the Suspension Period, all of the requirements of this Housing Agreement shall again apply to the Owner of the Property. 6.1. Involuntary Transfer Date. "Involuntary Transfer Date' means the date on which any of the following occur: (i) Owner is prohibited by law from complying with this Housing Agreement pursuant to a change in federal law or pursuant to new or modified regulation by a federal agency that specifically prohibits the City from enforcing the material terms of this Housing Agreement; (ii) substantially all of the Property is taken by a government agency pursuant to the exercise of powers of eminent domain (in which event there will be no Suspension End Date); (iii) a Permitted Mortgagee obtains title to the Property pursuant to foreclosure, transfer of title by deed -in -lieu of foreclosure, or a similar event; provided that this clause (iii) shall not include the purchase at a foreclosure sale by a third party that is not an affiliate of the Permitted Mortgagee. 6.2. Suspension End Date. "Suspension End Date" means the date on which any of the following occur: (i) If the Involuntary Transfer Date is pursuant to clause (i) of Section 6.1 then the date that the owner of the Property is no longer prohibited by law from complying with this Housing Agreement; (iii) If the Involuntary Transfer Date is pursuant to clause (iii) of Section 6.1, then the date that the a Permitted Mortgagee conveys title to the Property to a third party that is not an affiliate of the Permitted Mortgagee. 6.3. Permitted Mortgagees. The obligation of Owner to obtain an Assignment Agreement from any transferee shall not apply to any transfer of the Property to a Permitted Mortgagee that obtains title to the Property pursuant to foreclosure, transfer of title by deed -in- lieu of foreclosure, or a similar event; provided that any subsequent transfer by such Permitted Mortgagee will require an Assignment Agreement from any subsequent transferee who obtain title to the Property from the Permitted Mortgagee. Covenants and Restrictions to Run with the Land. 7.1. Covenants That Run With the Land. This entire Housing Agreement, including without limitation all of the agreements by the Owner and all covenants and restrictions contained in this Housing Agreement are intended to be covenants running with the land (including the entire Property), and shall, in any event, and without regard to technical classification or designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by Tustin, and its successors and 19 City of Tustin / St. Anton Declaration of Affordable Housing Covenants assigns, against Owner and all Successor Owners, and any party in possession or occupancy of said Property or any portion thereof. Without in any way limiting the foregoing, each of the Parties shall execute and deliver at their own cost and expense, any and all additional papers, documents, or instruments, and shall do any and all acts and things reasonably necessary or appropriate in connection with the performance of their respective obligations hereunder in order to carry out the intent and purposes of this Housing Agreement. 7.2. Tustin as Identified Beneficiary. In amplification and not in restriction of the provisions set forth hereinabove, Owner intends and agrees that both the City and the Authority shall each be deemed a beneficiary of the agreements, covenants and restrictions herein both for and in its own right and also for the purposes of protecting the interests of the community. All covenants and restrictions without regard to technical classification or designation shall be binding for the benefit of both the City and the Authority, and such covenants and restrictions shall run in favor of both the City and the Authority for the entire period during which such covenants and restrictions shall be in force and effect, without regard to whether the City is or remains an owner of any land or interest therein to which such covenants and restrictions relate. The City and the Authority shall each have the independent right, in the event of any breach of this Housing Agreement or covenant or restriction herein, to exercise all the rights and remedies, and to maintain any action at law or suit in equity or other proper proceedings to enforce the curing of such breach of this Housing Agreement or covenants or restrictions. 7.3. Modification of Housing Agreement Without the Consent of Tenants and Mortgagees. The City and its successors and assigns, as the first party, and Owner and/or any Successor Owners then owning any portion of the Property or any interest in the Project, as the second parties, shall have the right upon written agreement signed by the first party and all of the second parties then holding an interest in real property in the Property and the Project, to consent and agree to changes in, or to eliminate in whole or in part, any of the terms or provisions in this Housing Agreement without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust, or any other person or entity having any interest less than a fee in the Property or the Project. 7.4. No Third Party Beneficiaries. This Housing Agreement is not enforceable by and does not run to the benefit of any person or entity other than Owner, the Successor Owners, and both Tustin and the Authority and their respective successors and assigns. No member of the public, no person or entity that is occupies and Affordable Housing Unit, no adjacent landowner tenant that is 8. Burden and Benefit. Tustin and Owner hereby declare their understanding and intent that all of the terms and provisions in this Housing Agreement are covenants and restrictions that touch and concern the Property and that Owner's legal interest in the Property is rendered less valuable thereby. Owner hereby further declares its understanding and intent that the benefit of the covenants and restrictions that that touch and concern the Property are made for the enhancement and enjoyment and use of the Project by Qualified Households who may be 20 City of Tustin / St. Anton Declaration of Affordable Housing Covenants entitled to lease Affordable Housing Units under the terms of this Housing Agreement and that this Housing Agreement furthers the public purposes for which the Development Agreements were entered into with Owner. 9. Uniformity; Common Plan. The covenants, reservations and restrictions hereof shall apply uniformly to the entire Property in order to establish and carry out a common plan for the use, development and improvement of the Property. 10. Default Enforcement. 10.1. Default. "Event of Default" under this Housing Agreement means any of the following: 10.1.1. A breach or default by Owner occurs under the Special Restrictions; 10.1.2. A breach or default by Owner occurs under either of the Development Agreements as it relates to the Property; or 10.1.3. Owner or any Successor Owner fails to perform fully any of its obligations set forth in this Housing Agreement within thirty (30) days following receipt of written notice regarding such other default; provided, that if such failure is capable of being remedied but not capable of being remedied within thirty (30) days, then the defaulting party shall have an additional period of time within which to remedy such failure, not in any event to exceed sixty (60) days. The failure of the Program Administrator to notify Owner or a Successor Owner of any such default shall not be deemed a waiver of the default, and Tustin shall have no obligation to notify the defaulting party of the default. 10.2. Remedies. Following an Event of Default, the City and the Authority, and each of them, may pursue all of their respective rights and remedies set forth in the Special Restrictions, the Development Agreements (if the same are still in effect on the date of such Event of Default), or this Housing Agreement or otherwise available at law, in equity or by statute. The City's and the Authority's respective rights and remedies shall be cumulative and no one of such rights and remedies shall be exclusive of any of the others, or of any right or remedy at law or in equity which the City or the Authority, as applicable, might otherwise have by virtue under this Agreement and the exercise of one such right or remedy by the City or the Authority, as applicable, shall not impair such Party's standing to exercise any other right or remedy. The Parties agree that this Housing Agreement may be specifically enforced. 10.2.1. Delinquency Notice. In the event of any breach or default by Owner or any Successor Owner under any mortgage or deed of trust, the City shall have the right, but not the obligation, to perform the unperformed obligations at the expense of Owner, and all expenditures by the City to cure such default shall accrue interest from the date such sums are actually spent by the City at a default rate equal to the then "prime rate" specified by Wells Fargo Bank or its successor plus three percent (3 %), but not in excess of such rate as may 21 City of Tustin / St. Anton Declaration of Affordable Housing Covenants be permitted under applicable law. Payment shall be made by Owner to the City within thirty (30) days after written request thereof. If payment is not made by Owner within thirty (30) days after such demand is made then the City shall have the right to add such amount, to any sums then due or thereafter becoming due from Owner under the this Housing Agreement. In addition, the amount due to the City shall constitute a lien and charge upon the fee interest of Owner to Property and the City shall have the right to record a notice (a "Delinquency Notice ") against the Property, which states the amount due from Owner. The aforesaid lien shall attach immediately upon recordation of the Delinquency Notice. A copy of the Delinquency Notice shall be delivered to Owner pursuant to Section 14.4. The lien may be foreclosed by appropriate action in court or in the manner prescribed by law. Upon such event, Owner shall be required to pay all attorney fees and costs and expenses of the City in connection with the preparation, recordation and foreclosure of such lien. Any such lien shall be prior to all encumbrances, liens, or charges on the Property except (a) taxes which are by law prior thereto; (b) the rights of tenants pursuant to bona fide leases; and (c) any permitted mortgage and advances thereunder made in good faith and for value and recorded prior to the Delinquency Notice. The transfer of the Property shall not affect the aforesaid lien. 10.2.2. Non - Complying Affordable Housing Units. The Program Administrator may make a determination of Owner's breach of its obligations regarding leasing of the Affordable Housing Units based on information provided in the Certificate of Continuing Program Compliance or determined by Tustin in its reasonable discretion based on information otherwise available to it. In addition to and without limitation of any other rights and remedies set forth in this Housing Agreement or otherwise available to any party legally entitled to enforce this Housing Agreement, if a Default with respect to Section 2 occurs resulting in an Affordable Housing Unit becoming a Non - Complying Unit, and (i) if the Default is not cured within sixty (60) days after notice from Tustin to Owner, or (ii) if such Default cannot reasonably be cured within the sixty (60) day period and Owner has not commenced the curing of such Default, or if Owner is not otherwise diligently prosecuting such cure to completion, then, with respect to such Non - Complying Unit, Owner shall pay to the City the "Compliance Fee" (defined below) for the "Period of Non-Compliance" (defined below) regarding such Non- Compl�ing Unit. Owner shall pay the Compliance Fee for the Non - Complying Unit on the fifteenth (15` ) day of the calendar month immediately following the end of the Period of Non - Compliance for such Non- complying Unit. (a) "Compliance Fee" for a Non - Complying Unit means an amount equal to (a) twenty-five percent (25 %) multiplied by (b) the Rent Consideration payable by the tenant of the Non - Complying Unit under its lease for the entire Period of Non - Compliance. (b) "Non- Compliance Period" for a Non - Complying Unit means the period commencing on the date that is sixty-one (61) days after notice from Tustin to Owner pursuant to this Section 10.2.2, and ending on the date that is the earlier of (i) the date that Owner cures the Default that resulted in the Non - Complying Unit or (ii) the date that the tenant of the Non - Complying Unit vacates the Non - Complying Unit. Owner shall provide 22 City of Tustin / St. Anton Declaration of Affordable Housing Covenants Tustin with reasonable evidence of the date that either (i) Owner cures the Default that resulted in the Non - Complying Unit or (ii) the tenant of the Non- Complying Unit vacates the Non - Complying Unit, as applicable. 10.3. Lien of Mortgage. No breach of any of the provisions of this Housing Agreement shall impair, defeat or render invalid the lien of any Mortgage made in good faith and for value encumbering the Property or Project or any portion thereof. 10.4. Obligation of Owner During Default. The Owner shall remain liable under this Housing Agreement for any breach or default of this Housing Agreement that occurs or is alleged to have occurred during the period that such Owner owned all or any part of the Project, and such liability shall not be released or waived for any transfer of any portion of the Project to a Successor Owner. 11. Administration, Recording and Filing. 11.1. Administration. The administration of this Housing Agreement by the City and the Authority shall be delegated by the City to the Authority and to the Program Administrator. The Program Administrator shall have the authority to act on behalf of the City and the Authority for all purposes to act under this Housing Agreement and provide all approvals, notices, consents and interpretations that may be required under this Housing Agreement from either the City or the Authority or both; provided that the Program Administrator shall not have the authority to modify or amend this Housing Agreement. 11.2. Recording. Owner shall cause this Housing Agreement, and all amendments and supplements hereto and thereto, to be recorded and filed in the Official Records and in such other places as the Program Administrator may reasonably request. Owner shall pay all fees and charges incurred in connection with any such recording. Written evidence of the recorded Housing Agreement, a conformed copy, shall be provided to the Program Administrator. 12. Indemnification. Owner shall defend, indemnify and hold harmless Tustin and their respective officers, officials, agents, employees, representatives, and volunteers from and against all loss, damage, costs, expenses, liability, claim or judgment relating in any manner to Owner performance under this Agreement, except to the extent cause by the gross negligence or willful misconduct of Tustin. 13. Limitation of Liability. Notwithstanding any other provision or obligation to the contrary contained in this Housing Agreement: (i) the liability of Owner under this Housing Agreement to any person or entity, including, but not limited to, Tustin is limited to the Owner's interest in the Property and the Project, and such persons and entities shall look exclusively to the Property and the Project for satisfaction of any claim arising under this Agreement, and may also look to such other security as may from time to time be given for the payment of obligations arising out of this Housing Agreement or any other agreement securing the obligations of the 23 City of Tustin / St. Anton Declaration of Affordable Housing Covenants Owner under this Housing Agreement; and (ii) from and after the date of this Housing Agreement, no deficiency or other personal judgment for monetary damages shall be rendered against Owner, the assets of Owner (other than Owner's interest in the Property and the Project), or against Owner's partners, members, successors, transferees or assigns or against each their respective officers, directors, employees, partners, agents, heirs and personal representatives, as the case may be, in any action or proceeding arising out of this Housing Agreement or arising out of any other agreements securing the obligations of Owner under this Housing Agreement, or any judgment, order or decree rendered pursuant to any such action or proceeding. 14. Miscellaneous. 14.1. Governing Law. This Housing Agreement shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, without giving effect to any choice of law provisions. 14.2. Amendments This Agreement shall be amended only by written instrument that (a) is executed by (i) the City and its successors and assigns and the Authority and its successors and assigns, as the first parties, and (ii) Owner and/or any Successor Owners then owning any portion of the Property or any interest in the Project, as the second parties; provided such instrument is signed by the first party and all of the second parties then holding an interest in real property in the Property and the Project, and (b) is duly recorded in the Official Records. Following its approval by Tustin, this Agreement shall be administered by the Program Administrator. Except where the terms of this Agreement expressly require the approval of a matter by the City or the taking of any action by the City, any matter to be approved by Tustin shall be deemed approved, and any action to be taken by Tustin shall be deemed taken, upon the written approval by the Program Administrator (or designee). The Program Administrator or designee shall have the authority to issue interpretations with respect to this Agreement and to determine whether any action requires the approval of the City Council. 14.3. Waiver. No waiver of any provision or consent to any action under this Housing Agreement shall constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a party to provide a waiver in the future except to the extent specifically set forth in writing. Any waiver given by a party shall be null and void if the party requesting such waiver has not provided a full and complete disclosure of all material facts relevant to the waiver requested. 14.4. Notices. All notices, demands, consents, requests and other communications required or permitted to be given under this Housing Agreement shall be in writing and shall be deemed conclusively to have been duly given (a) when hand delivered to the other party; (b) five (5) days after such notice has been sent by United States mail via certified mail, return receipt requested, postage prepaid, and addressed to the other party as set forth below; or (c) the two (2) days after such notice has been deposited with a national overnight delivery service reasonably approved by the parties (Federal Express, UPS and Airborne Express 24 City of Tustin / St. Anton Declaration of Affordable Housing Covenants are deemed approved by the parties), postage prepaid, addressed to the party to whom notice is being sent as set forth below with next - business -day delivery guaranteed, provided that the sending party receives a confirmation of delivery from the delivery service provider. Unless otherwise provided in writing, all notices hereunder shall be addressed as follows: Owner: Anton Legacy Tustin L.P. c/o St. Anton Partners 1801 1 Street, Suite 200 Sacramento, CA 95811 Attention: Steven L. Eggert Fax: (916) 444 -9843 Email: sle @antonllc.com With a copy to: Cox Castle Nicholson LLP 555 California Street, 10th Floor San Francisco, CA 94104 Attention: Stephen C. Ryan Fax: (415) 262 -5199 Email: sryan @coxcastle.com City: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: Tustin Housing Authority With copy to: David Kendig City Attorney Woodruff, Spradlin & Smart 555 Anton Blvd. Suite 1200 Costa Mesa, California 92626 14.5. Severability. Any provision of this Housing Agreement that is deemed to be illegal, invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be ineffective to the extent of the invalidity or unenforceability of such provision and shall be deemed stricken from this Housing Agreement. Any stricken provision shall not affect the legality, enforceability or validity of the remainder of this Housing Agreement. If any provision or part thereof of this Housing Agreement is stricken in accordance with the provisions of this Section, then the stricken provision shall be replaced, to the extent possible, with a legal, 25 City of Tustin / St. Anton Declaration of Affordable Housing Covenants enforceable and valid provision that is as similar in tenor and intent to the stricken provision as is legally possible. Any such invalidity or unenforceability of any provision in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 14.6. Authority of Signatories to Housing Agreement. Each person executing this Housing Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Housing Agreement on behalf of the parties for which execution is made. Each party represents and warrants to the other that the execution of this Housing Agreement and the performance of such party's obligations hereunder have been duly authorized and that the agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. 14.7. Consent to Jurisdiction. The parties hereto agree that all actions or proceedings arising in connection with this Housing Agreement shall be tried and litigated exclusively in the state and federal courts located in the County of Orange, State of California. This choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between or among the parties with respect to or arising out of this Housing Agreement in any jurisdiction other than that specified in this Section. Each Party waives any right that it may have to assert the doctrine forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this section, and stipulates that the state and federal courts located in the County of Orange, State of California, shall have in personani jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy or proceeding arising out of this Housing Agreement. Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this section by means of registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Housing Agreement and in the manner set forth in the section of this Housing Agreement pertaining to notice. Any final judgment rendered against the party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. 14.8. Time Is of the Essence. Time is of the essence in this Housing Agreement, and failure to timely comply with provisions of this Housing Agreement shall be a breach under this Housing Agreement. 14.9. Attorneys' Fees. If any Party files an action or brings any proceeding against the other Party arising from this Housing Agreement, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, reasonable attorneys' fees and costs to be fixed by the court. A Party not entitled to recover its costs shall not recover attorneys' fees. No sum for attorneys' fees shall be included in calculating the amount of a judgment for purposes of deciding whether a Party is entitled to its costs or attorneys' fees. 14.10. Recitals. The recitals set forth at the beginning of this Housing Agreement of any matters or facts shall be conclusive proof of the truthfulness thereof and the 26 City of Tustin / St. Anton Declaration of Affordable Housing Covenants terms and conditions set forth in the recitals, if any, shall be deemed a part of this Housing Agreement. 14.11. Exhibits. All Exhibits and Schedules attached to this Housing Agreement are hereby incorporated by this reference and are made a part of this Housing Agreement as if fully set forth herein. 14.12. Captions. All captions, titles or headings of the articles, sections, paragraphs or subparagraphs of this Housing Agreement are inserted solely as a matter of convenience of the parties hereto, and for reference, shall not be deemed to be a part of this Housing Agreement, and shall not define, limit, extend or describe the scope of this Housing Agreement nor be used or construed in the interpretation or determination of the validity of this Housing Agreement or any provision hereof. 14.13. Counterparts. This Housing Agreement may be executed in counterparts, and all such counterparts when taken together shall constitute a single agreement. «« Signature Page Follows »» 27 City of Tustin / St. Anton Declaration of Affordable Housing Covenants IN WITNESS WHEREOF, the City, the Authority, and Owner have executed this Housing Agreement by duly authorized representatives, all as of the date first written above. ATTEST: M CITY OF TUSTIN: La Jeffrey C. Parker, City Manager TUSTIN HOUSING AUTHORITY Pamela Stoker City Clerk By: APPROVED AS TO FORM M David Kendig, City Attorney Amy E. Freilich Special Tustin Counsel Jeffrey C. Parker Executive Director OWNER: ANTON LEGACY TUSTIN L.P., a California limited partnership By: _ Name: Title: City of Tustin / St. Anton Declaration of Affordable Housing Covenants State of California } } ss. County of Los Angeles } On 2012 before me, (Insert name of Notary Public and title) personally appeared , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public (Seal) 29 City of Tustin / St. Anton Declaration of Affordable Housing Covenants EXHIBIT A LEGAL DESCRIPTION OF PROPERTY That certain real property located in the City of Tustin County of Orange State of California, and legally described as follows Lots 20, MMM, NNN, and PPP of Tract No 17404 in the City of Tustin County of Orange State of California as shown on a map filed in Book 907, Page 6, Official Records of Orange County California LOT R LOT Q T `10" \ i J LOT III O L 19 J fi ��° , .4 ' 22 y 23 �O LOT PPP OT LOT CCC 0 \\ y �Y Y l • \I TRACT NO. 17404 IN THE CITY OF TUSTIN COUNTY OF ORANGE STATE OF CALIFORNIA 30 City of Tustin / St Anton Declaration of Affordable Housing Covenants EXHIBIT B GLOSSARY OF DEFINED TERMS For purposes of this Housing Agreement, the following initially capitalized terms shall mean the following: "Act" means Chapter 8 (commencing with Section 33750) of Part 1 of Division 24 of the Health and Safety Code of the State of California, as amended. "Affordability Commencement Date" means the date on which both of the following have occurred: (a) Owner has received a final certificate of occupancy for the entire Project and (b) at least 128 dwelling units, including 128 Affordable Housing Units have been leased to Qualified Households and are occupied by Qualified Households. "Affordable Housing Units" means the following dwelling units at the Project to be rented to, occupied by or held available for the Very Low Income Households, Low Income Households, and Moderate Income Households, as applicable, identified below, in each case leased to a Qualified Household at not more than the Monthly Affordable Rent as described in Section 3 in this Housing Agreement applicable to such restricted units: Type of Unit Required Number of Units Very Low Income Units 88 Low Income Units 73 Moderate Income Units 64 Total Affordable Housing Units 225 "Affordable Rent" means for any Affordable Housing Unit, monthly Rent Consideration payable by the tenant that does not exceed the Maximum Monthly Affordable Rent applicable to that Affordable Housing Unit. "Administrative Fee" has the meaning set forth in Section 2.11.1. "Assignment Agreement" has the meaning set forth in Section 5.2. "Authority" has the meaning set forth in the introductory paragraph of this Housing Agreement. "Base Unit Count" has the meaning set forth in Recital G. "Certificate of Continuing Program Compliance" means the annual report of occupancy for the Affordable Housing Units including the Verification of Income provided by Owner to Agency as described in Section 2.9.6 hereof or such other form as may be prescribed by the Agency. Exhibit B — page 1 City of Tustin / St. Anton Declaration of Affordable Housing Covenants "City" has the meaning set forth in the introductory paragraph of this Housing Agreement. "City Code" has the meaning set forth in Recital D. "City Maximum Rent List" has the meaning set forth in Section 2.4.1. "Completion Certificate" means the notice of completion of construction filed by Owner. "Completion of Construction" has the meaning set forth in Section 4.3.1. "Density Bonus Law" has the meaning set forth in Recital D. "Density Bonus Ordinance" has the meaning set forth in Recital D. "DA" has the meaning set forth in Recital F. "DDA" has the meaning set forth in Recital A. "Delinquency Notice" has the meaning set forth in Section 11.2.1. "Development Agreements" has the meaning set forth in Recital F. "Entitlements" has the meaning set forth in Recital D. "Event of Default" has the meaning set forth in Section 11.1. "Fiscal Year" means the property tax year for the State of California from July 1 until the following June 30, as such fiscal year may be changed from time to time by the State of California. "Gross Income" has the meaning for `gross income' that is defined by California Code of Regulations Title 25, §6914 as the anticipated Income of a person or family for the twelve- month period following the date of determination of Income. To make the projection, "a `snapshot' of the household's current circumstances is used to project future Income. The circumstances on the date of measurement should be assumed to continue for the next 12 months unless there is verifiable evidence to the contrary. "Gross Revenue" has the meaning set forth in Section 2.11.3.1 "HCD List" has the meaning set forth in Section 2.4.1. Exhibit B — page 2 City of Tustin / St. Anton Declaration of Affordable Housing Covenants "Income" means `Income,' as defined by California Code of Regulations Title 25, §6914, and shall include, but not be limited to the following: 1) The gross amount, before any payroll deductions, of wages and salaries, overtime pay, commissions, fees, tips and bonuses; 2) The net income from operation of a business or profession or from rental or real or personal property (for this purpose, expenditures for business expansion or amortization of capital indebtedness shall not be deducted to determine the net income from a business); 3) Interest and dividends; 4) The full amount of periodic payments received from social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of periodic receipts; 5) Payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay (but see subdivision (b)(3)); 6) Public Assistance. If the public assistance payment includes an amount specifically designated for shelter and utilities which is subject to adjustment by the public assistance agency in accordance with the actual cost of shelter and utilities, the amount of public assistance income to be included as income shall consist of: a) The amount of the allowance or grant exclusive of the amount specifically designated for shelter and utilities, plus b) The maximum amount which the public assistance agency could in fact allow for the family for shelter and utilities, 7) Periodic and determinable allowances such as alimony and child support payments, and regular contributions or gifts received from persons not residing in the dwelling; and 8) All regular pay, special pay and allowances of a member of the Armed Forces (whether or not living in the dwelling) who is head of the family or spouse (but see subdivision (b)(5)). "Income" shall not include the following: 1) Casual, sporadic and irregular gifts (includes casual, sporadic and irregular income under this exclusion); 2) Amounts which are specifically for or in reimbursement of the cost of medical expenses; 3) Lump -sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and worker's compensation), capital gains and settlement for personal or property losses; 4) Amounts of educational scholarships paid directly to the student or to the educational institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees, books and equipment. Any amounts of such scholarships, or payments to veterans not used for the above purposes that are available for subsistence are included in income; Exhibit B — page 3 City of Tustin / St. Anton Declaration of Affordable Housing Covenants 5) The special pay to a serviceman head of a family away from home and exposed to hostile fire; 6) Relocation payments made pursuant to federal, state, or local relocation law; 7) Foster child care payments; 8) The value of coupon allotments for the purchase of food pursuant to the Food Stamp Act of 1964 which is in excess of the amount actually charged the eligible household; and 9) Payments received pursuant to participation in the following volunteer programs under the ACTION Agency: a. National Volunteer Antipoverty Programs which include VISTA, Service Learning Programs and Special Volunteer Programs. b. National Older American Volunteer Programs for persons aged 60 and over which include Retired Senior Volunteer Programs, Foster Grandparent Program, Older American Community Services Program, and National Volunteer Program to Assist Small Business Experience, Service Corps of Retired Executive (SCORE) and Active Corps of Executives (ACE). "Involuntary Transfer Date" has the meaning set forth in Section 7.1. "Improvements" means all of the buildings, structures, parking, fixtures, site improvements (including landscaping and hardscaping), amenities and facilities constructed or installed on the Property, comprising the constructed Project, as more particularly set forth in the Development Agreements and included in Approved Plans (and in the Scope of Development). "Initial Leasing Period" has the meaning set forth in Section 2.3.6. ARC Sections 42 and 143" means Sections 42 and 143 of the Internal Revenue Code of 1986 as amended, and any regulations promulgated thereunder. "Local Preference Policy" has the meaning set forth in Section 2.9.10. "Low Income Household" means a household of individuals whose collective annual Gross Incomes do not exceed eighty percent (80 %) of the annual Orange County Median Income, with adjustments for smaller and larger families. "Low Income Units" means the dwelling units in the Project, if any, required to be rented to, occupied by, or held available for Low Income Households in accordance with this Housing Agreement. "Mandatory Density Bonus" has the meaning set forth in Recital G. Exhibit B — page 4 City of Tustin / St. Anton Declaration of Affordable Housing Covenants "Maximum Monthly Affordable Rent" means for any Affordable Housing Unit, the maximum monthly Rent Consideration payable by the tenant under the lease that does not exceed the following: (a) with respect to Very Low Income Units, the Annual Maximum Very Low Income Rent for a Very Low Income Household (calculated in accordance with the requirements below) divided by twelve (12) as specifically applicable to the particular Qualified Household that is the tenant, (b) with respect to Low Income Units, the Annual Maximum Low Income Rent for a Low Income Household (calculated in accordance with the requirements below) divided by twelve (12), as specifically applicable to the particular Qualified Household that is the tenant, and (c) with respect to Moderate Income Units, the Annual Maximum Moderate Income Rent for a Moderate Income Household (calculated in accordance with the requirements below) divided by twelve (12), as specifically applicable to the particular Qualified Household that is the tenant. The applicable Annual Maximum Rent for a particular Qualified Household shall take into account and include a reasonable allowance for utilities and shall otherwise be an amount not in excess of the following: For "Moderate Income Units," as more particularly defined in Health and Safety Code Section 50053 (b)(4), and as generally described herein, the "Annual Maximum Moderate Income Rent" shall be equal to the product obtained by multiplying (i) thirty percent (30 %) by (ii) one hundred and ten percent (110 %) of the annual Orange County Median Income adjusted for family size appropriate for the units, including a reasonable utility allowance. Notwithstanding the foregoing, in accordance with Health and Safety Code Section 50053 (b)(4), the City has determined and hereby agrees that, for a Moderate Income Household with annual gross incomes that exceed one hundred and ten percent (1 10 %) of the annual Orange County Median Income, adjusted for family size appropriate for the unit, the Annual Maximum Moderate Income Rent shall be calculated as not to exceed the product obtained by multiplying (i) thirty percent (30 %) by (ii) one hundred and twenty percent (120 %) of the annual Orange County Median Income adjusted for family size appropriate for the units, including a reasonable utility allowance. For "Low Income Units," as more particularly defined in Health and Safety Code Section 50053(b)(3), and as generally described herein, the "Annual Maximum Low Income Rent" shall be equal to the product obtained by multiplying (i) thirty percent (30 %) by (ii) sixty percent (60 %) of the annual Orange County Median Income adjusted for family size appropriate for the units, including a reasonable utility allowance. For "Very Low Income Units," as more particularly defined in Health and Safety Code Section 50053(b)(2), and as generally described herein, the "Annual Maximum Very Low Income Rent" shall be equal to the product obtained by multiplying (i) thirty percent (30 %) by (ii) fifty percent (50 %) of the annual Orange County Median Income adjusted for family size appropriate for the units, including a reasonable utility allowance. "Moderate Income Household" means a household of individuals whose collective annual Gross Incomes do not exceed one hundred and twenty percent (120 %) of the annual Orange County Median Income, with adjustments for smaller and larger families. Exhibit B — page 5 City of Tustin / St. Anton Declaration of Affordable Housing Covenants "Moderate Income Units" means the dwelling units in the Project, if any, required to be rented to, occupied by, or held available for Moderate Income Households in accordance with this Housing Agreement. "Net Operating Income" has the meaning set forth in Section 2.11.3. "New Status Unit" has the meaning set forth in Section 2.7.1. "Non- Complying Units" shall mean an Affordable Housing Unit which is occupied and/or leased in violation of Section 2 of this Housing Agreement; provided that an Affordable Housing Unit that is leased to a Qualified Household at the time of the lease shall only be deemed to be a Non - Complying Unit solely as a result of the Qualified Household losing income eligibility between certification dates in accordance with the terms of Section 2.7.2. "Official Record" has the meaning set forth in Recital B. "Operating Expenses" has the meaning set forth in Section 2.11.3.2. "Orange County Median Income" means the median family income for the Orange County Primary Metropolitan Statistical Area as most recently established by official annual publication of the Federal Department of Housing and Urban Development as published, modified and released by the State Department of Housing and Community Development, adjusted for household size. "Outside Rent Calculation Date" has the meaning set forth in Section 2.4.1. "Owner" means the owner of fee title to all or any portion of the Development Parcel, which as of the Effective Date is Anton Legacy Tustin L.P., a California limited partnership, and each Successor Owner. "Parcel 2A Property" has the meaning set forth in Recital D. "Party" has the meaning set forth in the introductory paragraph of this Housing Agreement. "Permitted Mortgage" means Owner's interim and permanent financing loan(s) for acquisition, development, and construction of the Project, secured by a deed of trust recorded against the Property, as may exist on the date of this Agreement or as may otherwise be allowed by the DDA and as may be approved by the City (if such approval is required under the terms of the DDA). "Permitted Mortgagee" means the lender under a Permitted Mortgage. "Permitted Transfer" has the meaning set forth in Section 5.1. Exhibit B —page 6 City of Tustin / St. Anton Declaration of Affordable Housing Covenants "Program Administrator" means the City Manager or a Tustin Housing Authority staff member designated by the Authority to act as the program administrator under this Housing Agreement. "Project" means the Property and the Improvements, together with any other personal property owned by Owner and located on, or used in connection with, the Improvements. "Property" means the real property legally described on Exhibit "A ", which is attached hereto and by this reference incorporated herein, and all rights and appurtenances thereunto appertaining. "Property Tax Exemption" means the Owner of the Property is exempt from the obligation to pay some or all of the property taxes on the Property that would be payable by an owner without any such exemption. "Provider" has the meaning set forth in Section 11.2.2. "Qualified Household" has the meaning set forth in Section 2.9.4. "Qualified Project Period" means the period beginning on the Affordability Commencement Date and ending on the date which is fifty -five (55) years after the Affordability Commencement Date. "Bent Consideration" means all consideration actually paid by a tenant to the landlord under a lease for housing services and amenities, of the comparable type and amount as provided to market rate dwelling units in the Project, whether or not occupants of market rate dwelling units pay separate charges for such services and amenities. Housing services and common area amenities include, but are not limited to, the following: parking, use of common facilities including pools or health spas, and utilities if the project is master - metered. Notwithstanding the foregoing, utility charges, to the extent individually metered for each unit in the Project, may be passed through or billed directly to the occupants of Affordable Housing Units in the Project in addition to and separate from any items of Rent Consideration. "Special Restrictions" has the meaning set forth in Recital E. "Specific Plan" has the meaning set forth in Recital C. "Successor Owner" means any person or entity who owns all or any portion of the Property, including without limitation any of the same who or which, if approved by the City, become an assignee of or successor of the Owner's rights, obligations, powers, and responsibilities required by this Agreement. "Suspension End Date" has the meaning set forth in Section 7.2. "Suspension Period" has the meaning set forth in Section 7. Exhibit B — page 7 City of Tustin / St. Anton Declaration of Affordable Housing Covenants "TCAC" means the California Tax Credit Allocation Committee, or its successor agency. "TCAC Procedures" has the meaning set forth in Section 2.9.2. "Tustin" has the meaning set forth in the introductory paragraph of this Housing Agreement. "Tustin Legacy" has the meaning set forth in Recital C. "Verification of Income" has the meaning set forth in Section 2.9.2. "Very Low Income Household" means a household of individuals whose collective annual Gross Incomes do not exceed fifty percent (50 %) of the annual Orange County Median Income, with adjustments for smaller and larger families. "Very Low Income Units" means the dwelling units in the Project, if any, required to be rented to, occupied by, or held available for Very Low Income Households in accordance with this Housing Agreement. Exhibit B — page 8 City of Tustin / St. Anton Declaration of Affordable Housing Covenants Attachment H Ordinance No. 1423 DA 2012 -002 ORDINANCE NO. 1423 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT 2012 -002, AS DEFINED BY SECTION 65865.2 OF THE CALIFORNIA GOVERNMENT CODE, BETWEEN THE CITY OF TUSTIN AND ST. ANTON PARTNERS, LLC (THE DEVELOPER), A CALIFORNIA LIMITED LIABILITY COMPANY PERTAINING TO DEVELOPMENT OF 225 AFFORDABLE RESIDENTIAL APARTMENTS, AT DISPOSITION PACKAGE 1A- NORTH, WITHIN PLANNING AREA 15, NEIGHBORHOOD G, OF THE MCAS TUSTIN SPECIFIC PLAN, TUSTIN, CALIFORNIA. The City Council of the City of Tustin does hereby ordain as follows: SECTION 1. The City Council of the City of Tustin finds: A. That to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the California Legislature adopted the Development Agreement Statute of the Government Code (Section 65864 et seq. of the Government Code), and the Tustin City Council adopted Sections 9600 to 9619 of the Tustin City Code. Pursuant to the Statute and City Code, the City may enter into an agreement with any person having a legal or equitable interest in real property and to provide for the development of such property and to establish certain development rights therein; B. That MCAS Tustin Specific Plan, Section 4.2.9, requires a Development Agreement for all private development at Tustin Legacy; C. That Development Agreement (DA) 2012 -002 is proposed by St. Anton Partners, LLC. (the Developer), a California and Delaware limited liability company for its proposal to construct 225 affordable residential apartment units, including 88 very-low income units, 73 low- income units, and 64 moderate - income units. D. That the purpose of DA 2012 -002 is to give the developer certain assurances that in return for Developer's commitment to develop the Property that is contained in Disposition and Development Agreement (DDA) 2012 -002, the City will in turn remain committed to the DDA, and the approved project; E. That the development and use of the Project at Disposition Package Site 1A- North, and related Irvine Company project at Disposition Package Site 2A, will provide 262 affordable units between the two projects that provide significant benefits to the community and promote the public health, safety, and welfare for the following reasons, among others: (i) development of the Project will generate tax revenues that can be used to provide essential services to the community; (ii) development will put the Project to productive use consistent with the objectives of the City's General Plan and the MCAS Tustin Specific Plan; and (iii) development of the Project will ensure the provision of 225 affordable units at the site for a minimum of 55 years. Ordinance No. 1423 Page 2 F. That DA 2012 -002 is consistent with DDA 2012 -002. Where conflict may occur, the more restrictive shall apply. That DA 2012 -002 is in conformity with the public necessity, public convenience, general welfare, and good land use practices in that the proposed project would implement both the General Plan and the MCAS Tustin Specific Plan goals and objectives. H. That DA 2012 -002 will not be detrimental to the health, safety, and general welfare in that the proposed development would comply with all applicable Federal, State, and Local rules and regulations. That DA 2012 -002 will not adversely affect the orderly development of property in that the proposed development would comply with the MCAS Tustin Specific Plan district regulations. J. That on October 9, 2012, the Tustin Planning Commission held a duly called, and noticed, public hearing on the matter and adopted Resolution No. 4205 recommending that the Tustin City Council approve Development Agreement 2012 -002. K. That on October 16, 2012, the Tustin City Council continued the matter to an adjourned regular meeting on October 30, 2012. L. That on October 30, 2012, the Tustin City Council continued the matter to a regular meeting on November 6, 2012. That a public hearing was duly noticed, called, and held on November 6, 2012 by the Tustin City Council. N. That on November 6, 2012, the Tustin City Council adopted Resolution No. 12- 96 finding that the Project is within the scope of the previously approved MCAS Tustin Final Program EIS /EIR previously certified on January 16, 2001, as amended by Supplement and Addendum and that no new effects could occur and no new mitigation measures would be required and an additional environmental analysis, action or document is not required by the CEQA. The City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457. SECTION 2. The City Council hereby approves Development Agreement 2012 -002 as included in Exhibit 1 attached hereto and subject to final approval of the City Attorney and authorizes execution by the City Manager of the City of Tustin and The Irvine Company or its affiliate as may be approved by the City of Tustin. SECTION 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be Ordinance No. 1423 Page 3 declared invalid or unconstitutional. PASSED AND ADOPTED, at an adjourned regular meeting of the City Council for the City of Tustin on this 6th day of November, 2012. JOHN NIELSEN MAYOR ATTEST: PAMELA STOKER CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) CERTIFICATION FOR ORDINANCE NO. 1423 PAMELA STOKER, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1423 was duly and regularly introduced and read at the adjourned regular meeting of the City Council held on the 6th day of November, 2012, and was given its second reading, passed and adopted at a regular meeting of the City Council held on the _day of _ 2012, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: PAMELA STOKER, City Clerk Exhibit 1 Development Agreement 2012 -002 CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT BE RECORDED AND BE EXEMPT FROM PAYMENT OF A RECORDING FEE PER GOVERNMENT CODE 6103 AND 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Tustin 300 Centennial Way Tustin, California 92780 Attn: City Clerk Space above this line for Recorder's Use Only TUSTIN LEGACY DEVELOPMENT AGREEMENT THIS TUSTIN LEGACY DEVELOPMENT AGREEMENT ( "Agreement ") is entered into effective as of the day of , 2012 by and between the CITY OF TUSTIN, a California municipal corporation ( "CITY "), and ANTON LEGACY TUSTIN L.P.,, a California limited partnership ( "DEVELOPER "). CITY and DEVELOPER are collectively referred to herein as the "Parties" and individually as a "Party ". RECITALS A. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California adopted the "Development Agreement Statute," Sections 65864, et seg., of the Government Code. The Development Agreement Statute authorizes CITY to enter into an agreement with any person having a legal or equitable interest in real property and to provide for development of such property and to establish certain development rights therein. In addition, MCAS Tustin Specific Plan Section 4.2.9 states: "prior to issuance of any permits or approval of any entitlements within the Specific Plan area, all private development shall first obtain a Development Agreement in accordance with Section 65864 et seq. of the Government Code and Sections 9600 to 9619 of the Tustin City Code." Pursuant to the authorization set forth in the Development Agreement Statute, CITY has enacted procedures for entering into development agreements which are contained in Tustin City Code Sections 9600 to 9619. B. CITY and DEVELOPER entered into that certain Tustin Legacy Disposition and Development Agreement as of (the "DDA ") pursuant to which CITY agreed to sell, and DEVELOPER agreed to buy and develop, certain real property, all as more specifically set forth in the DDA. C. Pursuant to the DDA, DEVELOPER has an equitable and legal interest in the Property (as defined below) in that it has the contractual right to purchase from CITY for development of the Property. D. Pursuant to Government Code Section 65864, the Legislature has found and determined that: "(a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. (b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development. (c) The lack of public facilities, including, but not limited to, streets, sewerage, transportation, drinking water, school, and utility facilities, is a serious impediment to the development of new housing. Whenever possible, applicants and local governments may include provisions in agreements whereby applicants are reimbursed over time for financing public facilities." In accordance with the legislative findings set forth in Government Code Section 65864, CITY wishes to attain certain public objectives that will be furthered by this Agreement. This Agreement will provide for the orderly implementation of the General Plan of CITY, and the phased development and completion of the Project in accordance with the DDA and the Specific Plan. This Agreement will further a comprehensive planning objective contained within the City's General Plan, which is: "To promote an economically balanced community with complimentary and buffered land uses to include industrial, commercial, professional, multi - family and single - family development." E. The DDA, the Specific Plan and the development under the DDA and the Specific Plan require a substantial early investment of money and planning and design effort by DEVELOPER. Without the protection provided by this Agreement, uncertainty that the Project may be completed in its entirety could result in a waste of public resources, escalate the cost of public improvements, and discourage DEVELOPER's participation in the comprehensive public improvements in the DDA and the Specific Plan. DEVELOPER's participation in the implementation of the DDA and the Specific Plan will result in a number of public benefits. These benefits require the cooperation and participation of CITY and DEVELOPER and could not be secured without mutual cooperation in and commitment to the comprehensive planning effort that has resulted in the DDA and the Specific Plan. 2 F. DEVELOPER wishes to avoid certain development risks and uncertainties that would, in the absence of this Agreement, deter and discourage DEVELOPER from making a commitment to implement the DDA and the Specific Plan. These are as follows: 1. It is generally the law in California that, absent extraordinary circumstances or the approval of a vesting subdivision map, an owner of the land does not obtain a vested right to improve land until the issuance of a building permit for the improvements and commencement of substantial construction pursuant to that permit. The result is a disincentive for landowners to invest monies in the early completion of major infrastructure and other public improvements as part of any project or in early comprehensive planning and design studies. 2. Development under the DDA and the Specific Plan requires a substantial early investment of money and planning and design effort by DEVELOPER. Uncertainty about CITY's land use policies, rules and regulations could result in a waste of private resources, escalate the cost of required public improvements, and escalate costs of proposed housing and other uses. G. The following assurances are of vital concern to DEVELOPER to offset or remove the disincentives and uncertainties set forth in Paragraph F above: 1. Assurance to DEVELOPER that, in return for DEVELOPER'S commitment to the development of the Property that is contained in the DDA, any approved entitlements, and the Specific Plan, CITY will in turn remain committed to the DDA and the Specific Plan; 2. Assurances to DEVELOPER that as DEVELOPER becomes obligated for the costs of designing and constructing the public and private improvements included in the DDA and the Specific Plan, and makes dedications, DEVELOPER will become entitled to complete the private development portions of the DDA and the Specific Plan that justify those obligations; and 3. Assurances to DEVELOPER that in CITY's administration of the DDA and the Specific Plan, DEVELOPER will be allowed, consistent with the DDA and the Specific Plan, to develop the housing types and intensities identified in the DDA and the Specific Plan. These assurances provide for cooperation and participation of CITY and DEVELOPER and could not be secured without mutual cooperation in and commitment to the comprehensive planning effort that has resulted in the DDA and the Specific Plan. H. California Government Code Sections 65864 et seq. authorize local agencies to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property. CITY wishes to enter into a development agreement with DEVELOPER to secure the public benefits described above, and DEVELOPER wishes to enter into a development agreement with CITY to avoid the development risks and uncertainties and to obtain the assurances described above. I. This Agreement is intended to be, and shall be construed as, a development agreement within the meaning of the Development Agreement Statute. This Agreement is intended to augment and further the purposes and intent of the parties in the implementation of 3 the DDA and the Specific Plan. This Agreement, as a device for the implementation of the DDA and the Specific Plan, will eliminate uncertainty in planning for and secure the orderly development of the Project, ensure a desirable and functional community environment, provide effective and efficient development of public facilities, infrastructure, and services appropriate for the development of the Project, assure attainment of the maximum effective utilization of resources within CITY, and provide other significant public benefits to CITY and its residents by otherwise achieving the goals and purposes of the Development Agreement Statute. In exchange for these benefits to CITY, DEVELOPER desires to receive the assurance that it may proceed with development of the Project in accordance with the terms and conditions of this Agreement, Existing Land Use Regulations, the DDA, and the Development Plan, all as more particularly set forth herein. J. CITY has determined that this Agreement and the Project are consistent with the CITY's General Plan and the CITY's MCAS Tustin Specific Plan/Reuse Plan, as amended, and as the same maybe further amended from time to time, and that the Development Agreement complies with the findings established by Tustin City Code Section 9611 in that the Agreement: (a) Is consistent with the objectives, policies, general land uses and programs specified in the General Plan and the MCAS Tustin Specific Plan (except for any Concessions and Incentives authorized for the project by the Tustin City Council). (b) Is compatible with the uses authorized in district in which the real property is located (Planning Area 15). Note: the proposed apartment project complies with the uses authorized by the MCAS Tustin Specific Plan. (c) Is in conformity with the public necessity, public convenience, general welfare, and good land use practices. Note: the proposed provision of 225 affordable apartment units meets this goal. (d) Will not be detrimental to the health, safety, and general welfare. Note: compliance with the MCAS Tustin Specific Plan, Tustin City Code, and other regulations will ensure that the project will not be detrimental in any way. (e) Will not adversely affect the orderly development of property. Note: the proposed project is orderly and well designed. (f) Will have a positive fiscal impact on the City. Note: the provisions of the proposed DDA, DA and conditions of approval will ensure that the project will have a positive fiscal impact on the City. K. On October 9, 2012, the Planning Commission held a public hearing on this Agreement, made certain findings and determinations with respect thereto, and recommended to the City Council of CITY that this Agreement be approved. On , the City Council held a public hearing on this Agreement, considered the recommendations of the Planning Commission, and adopted Ordinance No. , approving this Agreement and authorizing its execution. 4 AGREEMENT NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein by this reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. DEFINITIONS AND EXHIBITS. 1.1. Definitions. The following terms when used in this Agreement shall be defined as follows: Any capitalized word or term used in this Agreement shall have the definition or meaning ascribed to such word or term as provided in the DDA, unless the word or term is expressly provided in this Section 1.1 of this Agreement, in which event such word or term shall have the definition or meaning as provided herein. Any word not specifically defined in the DDA or this Agreement shall be interpreted by the Director of Community Development. 1.1.1 "Agreement" is defined in the introductory paragraph. 1.1.2 "Applications" is defined in Section 3.11.2 below. 1.1.3 Reserved 1.1.4 "CITY" is defined in the introductory paragraph. 1.1.5 "DDA" is defined in the Recital B above. 1.1.6 "DEVELOPER" is defined in the introductory paragraph. 1.1.7 "Development Permits" means all permits, certificates and approvals which may be required by CITY or other governmental authority for the development and construction of the improvements for the Project, in each case in accordance with this Agreement, the DDA, applicable Land Use Regulations and any required environmental mitigation, including without limitation any engineering permits, grading permits. foundation permits, construction permits and building permits. 1.1.8 "Development Plan" means the development (including, without limitation, the Scope of Development) identified in the DDA, subject to further refinement as required or contemplated by the DDA consistent with all applicable Entitlement Approvals and all applicable Land Use Regulations. 1.1.9 Reserved 1.1.10 "Effective Date" means the date the CITY's ordinance approving this Agreement becomes effective. 1.1.11 "Entitlement Approvals" means all land use approvals and entitlements, including all conditions of approvals, legally required by CITY or any other governmental 5 authority as a condition of subdivision of the Property, development of the Property, and construction of the improvements in accordance with this Agreement, the DDA and applicable Land Use Regulations, including, without limitation, Tentative and Final parcel maps, the Concept Plans and Design Review approvals as may be applicable for proposed specific uses(s) in connection with development of the Property. 1.1.12 "Existing Entitlement Approvals" means all Development Permits and Entitlement Approvals approved or issued prior to the Effective Date Existing Entitlement Approvals include the Development Permits and Entitlement Approvals which are a matter of public record on the Effective Date including Development Agreement (DA) 2012 -002, Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123 related to the provision of 225 affordable residential apartment housing units in compliance with California Government Code Section 65915(1) required for the proposed development of Tustin Legacy Disposition Package 1A -North. 1.1.13 "Existing Land Use Regulations" means all Land Use Regulations in effect on the Effective Date. Existing Land Use Regulations include CITY's General Plan, Zoning Code, the Specific Plan, and all other ordinances, resolutions, rules, and regulations of CITY governing development and use of the Property in effect as of the Effective Date, including without limitation the permitted uses of the Property, the density and intensity of use, maximum height and size of proposed buildings, provisions for the reservation and dedication of land for public purposes, and construction standards and regulations for Development Agreement (DA) 2012 -002, Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123 related to the provision of 225 affordable residential apartment housing units in compliance with California Government Code Section 65915(1) required for the proposed development of Tustin Legacy Disposition Package 1A -North. 1.1.14 "Land Use Regulations" means all laws, statutes, ordinances, resolutions, codes, orders, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted uses of the Property, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. 1.1.15 "LIFOC" refers to an instrument entitled "Lease in Furtherance of Conveyance" executed by the United States Department of the Navy and dated May 13, 2002, delivered to CITY provisionally in lieu of deed for portions of the Property impacted by hazardous materials, which expires and is supplemented by a conveyance deed upon the United States Department of the Navy determining that the hazardous materials which impact a portion of the Property have been adequately remediated. 1.1.16 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security- device lender, and their successors and assigns. 6 1.1.17 Reserved 1.1.18 "New CITY Laws" is defined in Section 3.10.1 below. 1.1.19 "Party" is defined in the introductory paragraph. 1.1.20 "Project" means the development of the Property contemplated by the Development Plan as such Development Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement. 1.1.21 "Property" means the real property described on Exhibit "A" and shown on Exhibit "B" to this Agreement. 1.1.22 "Reservations of Authority" means the rights and authority excepted from the assurances and rights provided to DEVELOPER under this Agreement and reserved to CITY under Section 3.10 of this Agreement. 1.1.23 "Specific Plan" means the CITY's MCAS Tustin Specific Plan/Reuse Plan, as amended, and as the same maybe further amended from time to time. 1.1.24 "Subsequent Entitlement Approvals" means all Entitlement Approvals required subsequent to the Effective Date in connection with development of the Property. The Subsequent Entitlement Approvals may include, without limitation, the following: amendments of the Entitlement Approvals, design review approvals (including site plan, architectural and landscaping plan approvals), deferred improvement agreements and other agreements relating to the Project, use permits, grading permits, building permits, lot line adjustments, sewer and water connections, certificates of occupancy, subdivision maps (including tentative, vesting tentative, parcel, vesting parcel, and final subdivision maps), preliminary and final development plans, re- zonings, encroachment permits, re- subdivisions, and any amendments to, or repealing of, any of the foregoing. At such time as any Subsequent Entitlement Approval applicable to the Project Site is approved by the City, then such Subsequent Entitlement Approval shall become subject to all the terms and conditions of this Development Agreement applicable to Entitlement Approvals and shall be treated as an "Entitlement Approval" under this Development Agreement. 1.1.25 "Successors In Interest" means any person having a legal or equitable interest in the whole of the Property, or any portion thereof as to which such person wishes to amend or cancel this Agreement. 1.1.26 "Vested Right" means the vested rights granted to DEVELOPER pursuant to this Agreement, including, without limitation, the vested right to develop the Property in accordance with, and to the extent of the DDA and the provisions of this Agreement. The Vested Elements shall be effective against, and shall not be amended by, any subsequent ordinance or regulation, whether adopted or imposed by the City Council or through the initiative or referendum process. The Vested Elements include are: (1) The General Plan of City on the Agreement Date, including the General Plan Amendments ( "Applicable General Plan "); (2) The Zoning Ordinance of City on the Agreement Date ( "Applicable Zoning Ordinance "); (3) other rules, regulations, ordinances and policies of City applicable to development of the Project on the Agreement Date (collectively, together with the Applicable General Plan and the 7 Applicable Zoning Ordinance, the "Applicable Rules "); and (4) the Entitlement Approvals, as they may be amended from time to time upon DEVELOPER's consent (such consent to be granted at the sole discretion of DEVELOPER) and City's approval of the amendment in accordance the terms of this Agreement. 1.2. Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: Exhibit "A" - Legal Description of the Property. Exhibit "B" - Map showing Property and its location. 2. GENERAL PROVISIONS. 2.1. Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement. 2.2. Equitable and Legal Interests in Property. Pursuant to the DDA, DEVELOPER anticipates acquiring the Property. CITY and DEVELOPER agree that DEVELOPER's right to acquire the Property pursuant to the DDA creates a sufficient legal and/or equitable interest in order to enter into this Agreement. If DEVELOPER fails to acquire any portion of the Property, then this Agreement shall automatically no longer be effective as to such portion of the Property concurrently with the date upon which DEVELOPER's rights to acquire such portion of the Property expire. 2.3. Term. The term of this Agreement shall commence on the Effective Date and shall continue for a term of five (5) years thereafter but in no event for a term less than that required to obtain the Certificate of Compliance referred to in Section 2.5 of this Agreement, unless this term is terminated, modified, or extended by circumstances set forth in this Agreement or by mutual written consent of the Parties. Notwithstanding the foregoing, the term of this Agreement shall be automatically extended for the period that development is prevented or delayed, in whole or in part, due to an event set forth in Section 8.11 below. 2.4. Assignment. 2.4.1 Assignment and Notification. The rights, interests and obligations conveyed and provided herein to DEVELOPER benefit and are appurtenant to the Property. DEVELOPER has the right to sell, assign and transfer any and all of its rights and interests and to delegate any and all of its duties and obligations hereunder; provided, however, that such rights and interests may not be transferred or assigned except in strict compliance with the provisions of Section 2.2 of the DDA, and the following conditions: (a) DEVELOPER secures the written consent of CITY if required pursuant to Section 2.2 of the DDA; (b) Said rights and interests may be transferred or assigned only as an incident of the transfer or assignment of the portion of the Property to which they relate, 8 including any transfer or assignment pursuant to a foreclosure of a mortgage or a deed in lieu of a foreclosure; (c) Prior to assignment or transfer, if required pursuant to this Section 2.4 and Section 2.2 of the DDA, DEVELOPER shall notify CITY in writing of such assignment or transfer, the portions of the Property to which the assignment or transfer will be appurtenant, and the name and address (for purposes of notices hereunder) of the transferee or assignee, together with the corresponding number of dwelling units and/or non - residential entitlements which are proposed to be included within such transfer and DEVELOPER and the assignee or transferee shall notify CITY whether the assignee or transferee will assume any of DEVELOPER's obligations under this Agreement and which of DEVELOPER's obligations will be assumed; and (d) The assignee or transferee shall have entered into an Assignment and Assumption Agreement if required by the DDA. Any attempt to assign or transfer any right or interest in this Agreement except in strict compliance with this Section 2.4 shall be null and void and of no force and effect. 2.4.2 Subject to Terms of Agreement. Following an assignment or transfer of any of the rights and interests of DEVELOPER set forth in this Agreement in accordance with Section 2.4.1, the assignee's exercise, use, and enjoyment of the Property shall be subject to the terms of this Agreement to the same extent as if the assignee or transferee were DEVELOPER. 2.4.3 Release of DEVELOPER Upon Transfer. Notwithstanding the assignment or transfer of portions or all of the Property or rights or interests under this Agreement, DEVELOPER shall continue to be obligated under this Agreement unless released or partially released by CITY with respect to DEVELOPER's obligations and the other duties and obligations of DEVELOPER under this Agreement, pursuant to this paragraph, which release or partial release shall be provided by CITY upon the full satisfaction by DEVELOPER of the following conditions: Section 2.4.1; (a) DEVELOPER is not then in default under this Agreement; (b) CITY has consented to the assignment or transfer if required under (c) An assignee or transferee has assumed such duties and obligations as to which DEVELOPER is requesting to be released; and, (d) The assignee or transferee is financially able to assume the obligations proposed for assignment and has demonstrated to the reasonable satisfaction of CITY that adequate resources have been committed to the full performance of such obligations. 2.5. Property to Continue to be Subject to This Agreement. Until recordation of a Certificate of Compliance as provided in Section 9 of the DDA, the Property shall continue to be subject to this Agreement. In the absence of specific written agreement by CITY, pursuant to which CITY expressly releases the DEVELOPER under the applicable provisions of the DDA or 9 this Agreement, no Transfer shall constitute a release of DEVELOPER from any of its obligations under this Agreement and the DEVELOPER shall retain such obligations and remain jointly and severally liable for such obligations. CITY shall cooperate with DEVELOPER, at no cost to CITY, in executing in recordable form any document that CITY has approved to confirm the termination of this Agreement as to any such Phase or parcel. Notwithstanding the foregoing, (a) the burdens of this Agreement shall terminate as to any individual residential unit that is sold or leased after issuance of a certificate of occupancy, and such parcels shall be released from and shall no longer be subject to this Agreement (without the execution or recordation of any further document or the taking of any further action) and (b) the benefits of this Agreement shall continue to run as to any such parcel until Completion or until termination of this Agreement, if earlier. 2.6. Amendment or Cancellation of Agreement. This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 65868 and Tustin CITY Code Section 9615. This provision shall not limit any remedy of CITY or DEVELOPER as provided by this Agreement. Either party or Successor in Interest may propose an amendment to or cancellation, in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual consent of the parties or their Successors in Interest except as provided otherwise in this Agreement, in Government Code Section 65865.1, or in the Tustin City Code. Any amendment to this Agreement which does not relate to the Term of this Agreement, permitted uses of the Project, provisions for the reservation or dedication of land the conditions, terms, restrictions and requirements relating to subsequent discretionary approvals of City, or monetary exactions of DEVELOPER, shall be considered an "Administrative Amendment ". The City Manager or assignee is authorized to execute Administrative Amendments on behalf of City and no action by the City Council (e.g. noticed public hearing) shall be required before the parties may enter into an Administrative Amendment. However, if in the judgment of the City Manager or assignee that a noticed public hearing on a proposed Administrative Amendment would be required, City's Planning Commission shall conduct a noticed public hearing to consider whether the Administrative Amendment should be approved or denied, and shall make a recommendation to the City Council on the matter. The Tustin City Council shall conduct a noticed public hearing to consider the request and the Planning Commission's recommendation on the matter. At the conclusion of the public hearing, the City Council may approve, deny, or conditionally approve the amendment. The Vested Rights may not be amended except by amendment of this Agreement; provided, however, that in the case of amendments affecting portions of the Project, only the consent of the owner of such portion shall be required so long as the amendment does not diminish the rights appurtenant to or increase the burdens upon any other portion of the Project Site. Any amendment of City land use regulations including, but not limited to, the General Plan, applicable Specific Plan or City's zoning ordinance, shall not require amendment of this Agreement. Instead, any such amendment shall be deemed to be incorporated into this Agreement at the time that such amendment is approved by the appropriate City decision maker, so long as such amendment is consistent with this Agreement. 10 2.7. Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (a) Expiration of the stated term of this Agreement as set forth in Section 2.3. (b) Entry of a final court judgment not subject to further appeal setting aside, voiding or annulling the adoption of the CITY ordinance approving this Agreement. (c) The adoption of a referendum measure overriding or repealing the CITY ordinance approving this Agreement. (d) Completion of the Project in accordance with the terms of this Agreement, the DDA, Entitlement Approvals, and applicable Land Use Regulations, including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required public improvements and dedications, and CITY issuance of a final DDA Certificate of Compliance. (e) Due to a default hereunder, as set forth in Article 5 below. (0 Upon mutual written agreement of CITY and DEVELOPER. Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement. 2.8. Notices, Demands and Communications between the Parties. All notices, demands, consents, requests and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed conclusively to have been duly given (a) when hand delivered to the other party; (b) three (3) business days after such notice has been sent by United States mail via certified mail, return receipt requested, postage prepaid, and addressed to the other party as set forth below; or (c) the next business day after such notice has been deposited with a national overnight delivery service reasonably approved by the parties (Federal Express, United Parcel Service and U.S. Postal Service are deemed approved by the parties), postage prepaid, addressed to the party to whom notice is being sent as set forth below with nextbusiness -day delivery guaranteed, provided that the sending party receives a confirmation of delivery from the delivery service provider. Unless otherwise provided in writing, all notices hereunder shall be addressed as follows: If to CITY: Tustin City Hall 300 Centennial Way Tustin, CA 92780 Attention: City Manager and Attention: Director of Community Development 11 With a copy to: If to DEVELOPER: With a copy to: City Attorney, City of Tustin Woodruff Spradlin & Smart 701 S. Parker Street, Suite 8000 Orange, CA 92868 -4760 Attention: David E. Kendig, Esq. Anton Legacy Tustin L.P. c/o Steven L. Eggert 4630 Campus Drive, Suite 111 Newport Beach, CA 92660 St. Anton Partners c/o Steven L. Eggert 1801 I Street Sacramento, CA 95811 With a copy to: Cox Castle Nicholson LLP 555 California Street, 10th Floor San Francisco, CA 94104 Attention: Stephen C. Ryan, Esq. Any party may by written notice to the other party in the manner specified in this Agreement change the address to which notices to such party shall be delivered. 3. DEVELOPMENT OF THE PROPERTY. 3.1. Public Benefits. This Agreement provides assurances that the Public Benefits identified below will be achieved and developed in accordance with the applicable rules and Entitlement Approvals and with the terms of the DDA, the Specific Plan and this Agreement, and subject to the City's Reservation of Authority (Section 3.10). The Project will provide local and regional public benefits to the City, including without limitation: new jobs, housing in immediate adjacency to employment, affordable housing for persons and families of moderate incomes. 3.2. DEVELOPER Objectives. In accordance with the legislative findings set forth in Government Code Section 65864, the DEVELOPER wishes to obtain reasonable assurances that the Project may be developed in accordance with the applicable rules and project approvals and with the terms of this Agreement and subject to the City's Reservation of Authority. To the extent of Project development, and as provided by Section 3.5.2, DEVELOPER anticipates making capital expenditures or causing capital expenditures to be made in reliance upon the DDA and this Agreement. In the absence of this Agreement, DEVELOPER would have no assurance that it can complete the Project for the uses and to the density and intensity of development set forth in this Agreement and the Existing Entitlement approvals. This Agreement, therefore, is necessary to assure DEVELOPER that the Project will not be (1) reduced or otherwise modified in density, intensity or use from what is set forth in the Existing Entitlement Approvals, (2) subjected to new rules, regulations, ordinances or official policies or plans which are not adopted or approved pursuant to the City's Reservation of Authority. 12 3.3. Mutual Objectives. Development of the Project in accordance with this Development Agreement will provide for the orderly development of the Property in accordance with the objectives set forth in the General Plan. Moreover, a development agreement for the Project will eliminate uncertainty in planning for and securing orderly development of the Property, assure installation of necessary improvements, assure attainment of maximum efficient resource utilization within the City at the least economic cost to its citizens and otherwise achieve the goals and purposes established by Government Code Section 65864. The Parties believe that such orderly development of the Project will provide Public Benefits, as described in Section 3.1, to the City through the imposition of development standards and requirements under the provisions and conditions of this Agreement, including without limitation: increased tax revenues, installation of on -site and off -site improvements, and creation and retention of jobs. Additionally, although development of the Project in accordance with this Agreement will restrain the City's land use or other relevant police powers, this Agreement provides the City with sufficient reserved powers during the term hereof to remain responsible and accountable to its residents. In exchange for these and other benefits to City, the DEVELOPER will receive assurance that the Project may be developed during the term of this Agreement in accordance with the applicable rules, project approvals and Reservation of Authority, subject to the terms and conditions of this Agreement. 3.4. Applicability of the Agreement. This Agreement does not: (1) grant density or intensity in excess of that otherwise established in the Existing Entitlement Approvals; (2) eliminate future discretionary actions relating to the Project if applications requiring such discretionary action are initiated and submitted by the DEVELOPER of the Property after the effective date of this Agreement; (3) guarantee that Property Owner will receive any profits from the Project; or (4) amend the DDA, the Specific Plan, or the City's General Plan. 3.5. Agreement and Assurance on the Part of the DEVELOPER. In consideration for the City entering into this Agreement, and as an inducement for the City to obligate itself to carry out the covenants and conditions set forth in this Agreement, and in order to effectuate the premises, purposes and intentions set forth in this Agreement, DEVELOPER hereby agrees as follows: 3.5.1 Project Development. DEVELOPER agrees that it will use commercially reasonable efforts, in accordance with its own business judgment and taking into account market conditions and economic considerations, to undertake any development of the Project in accordance with the terms and conditions of the DDA, this Agreement and Existing Entitlement Approvals. 3.5.2 Additional Obligations of DEVELOPER as Consideration for this Agreement. In addition to the obligations identified in Section 3.5.1, the development assurances provided by this Agreement and the resulting construction of the Project will result in the following: a. Construct a 225 -unit residential apartment complex at Disposition Package Site 1A- North, Tustin Legacy, including 88 very low income, 73 low income, and 64 moderate income rental units, consistent with the DDA, this Agreement and Project approvals. 13 b. Construct all of the vertical, horizontal, and local DEVELOPER improvements identified in the DDA. c. Comply with the DDA, Housing/Regulatory Agreement, Tustin City Code, MCAS Tustin Specific Plan, state and federal law, required mitigation measures, and all conditions of approval. d. The DEVELOPER acknowledges that the City has elected to fund certain portions of the Tustin Legacy Backbone Infrastructure Program through imposition of a landscape and lighting district, master maintenance association, assessment district, or any other method or means determined by the City necessary for funding of the maintenance of the public right - of -way, landscape easements, public parks or of the various municipal services and operating expenses associated with Tustin Legacy. Developer agrees that it will not oppose a determination by the City to form an assessment district or community facilities district including all or any portion of the Property subject thereto or any assessments by such assessment district or community facilities district provided that the City, the assessment district or community facilities district, and such assessments comply with Section 8.5.3 of the DDA. e. Pay all required development related fees, including but not limited to any required Backbone Infrastructure fee, etc. f. Focal Park: DEVELOPER shall be responsible for design, construction, and associated costs of certain Local Improvement (Non- Tustin Legacy Backbone Program Improvements) to include the following: 1. The full improvement of the 4.7 -acre Focal Park designed to City public park standards to be located on Lot MMM at the southwest corner of Legacy Road and Park Avenue. Full improvements include all water lines, gas, storm drainage, telephone, electricity, cable TV, sewage and reclaimed water, telemetry and any necessary telecommunication systems and as shown in the MCAS Tustin Specific Plan and/or Irvine Ranch Water District Sub Area Master Plan for Tustin Legacy, and/or as approved by the City and responsible private utility purveyors. All scope of work for design and construction includes all surveying, rough and precise grading, import and export of dirt as required, asphalt paving, including any necessary overlays, driveways, sidewalks, concrete, curb and gutter, landscaping, irrigation, street lighting, all traffic control, striping and signage and other work to construct improvements in accordance with Tustin City standards. 2. The Focal Park will serve as one of the open space features in Neighborhood G. As part of the overall tree - planting scheme, the park shall include similar themed street trees that are matched 14 along the streetscape of Legacy Road and Park Avenue. The focal park shall be designed to incorporate more unstructured informal and child play, with other more passive park experiences. The focal park program as envisioned includes amenities such as: a. Informal and open Turf area; b. Shade trees and flowering accent trees; c. Shrubs; d. Groundcover; e. Hardscape, accent and enhanced paving; f. A minimum of 100 lineal feet of low garden walls with design to be approved by City (i.e., stucco, brick, split face, or rock facings); g. Benches; h. Trash receptacles; i. Picnic tables ; j. Smaller Shade structures; k. Low level lighting; 1. Small tot lots for two age group; m. Structure and directional signage; n. Irrigation; o. City Park ID Monument; p. Restroom and storage building; and, separate parking lot 3. The applicant shall design and construct the park and related facilities at no cost to the City. Upon completion of the Park Facilities to the satisfaction of the City, Developer shall promptly convey in fee title at no cost to the City, and the City shall accept, Lot MMM of Tract Map 17404 and facilities, free and clear of all monetary and non - monetary liens and encumbrances excepting only those non - monetary liens and encumbrances approved by the City, together with an ALTA title policy issued by the Title Company, with policy amount equal to $10,000 or in such other minimum policy amount that Title Company agrees to issue, evidencing ownership of the Park Parcel by the City and showing only those exceptions to title approved by the City. For purposes of the foregoing, the City shall be deemed to have approved any non - monetary liens and encumbrances listed in Exhibit B to the Preliminary Title Report attached to the DDA that are not removed by the Title Company in the ALTA Policy issued to Developer at the Close of Escrow. In order to effectuate this provision, until completion of the Park Facilities, Developer shall not encumber the Park Parcel with any Mortgage unless such Mortgage and all instruments recorded against the Park Parcel clearly provide for the release of the Park Parcel from the lien of such Mortgage promptly upon request therefor by the City and at no cost or expense to 15 Developer or the City, in form and substance approved by the City in its sole discretion. 3.6. Agreement and Assurances on the Part of the City. In consideration for DEVELOPER entering into this Agreement, and as an inducement for DEVELOPER to obligate itself to carry out the covenants and conditions set forth in this Agreement, and in order to effectuate the purpose of this Agreement, the City hereby agrees as follows: 3.6.1 Applicable Regulations; Vested Right to Develop. To the maximum extent permitted by law, DEVELOPER has the vested right to develop the Project subject to the terms and conditions of the DDA, this Agreement, the Specific Plan, Tustin City Code, state and federal law, and Entitlement Approvals pursuant to the City's Reservation of Authority. Other than as expressly set forth herein, during the Term of this Agreement, the terms and conditions of development applicable to the Property, including but not limited to the permitted uses of the Property, the density and intensity of use, maximum height and size of proposed buildings, the design, improvement and construction standards and specifications applicable to the development of the Property, including any changes authorized pursuant to Section 3.6.1, and the provisions for the reservation and dedication of land as needed for public purposes pursuant to Governmental Requirements, shall be those set forth in the DDA, Existing Land Use Regulations, and Entitlement Approvals. In connection therewith and subject to the terms of this Agreement including the Reservations of Authority, DEVELOPER shall have the Vested Rights to: (1) carry out and develop the Property in accordance with the DDA (which includes the Development Plan), Existing Land Use Regulations, Entitlement Approvals and the provisions of this Agreement; (2) to receive from CITY all future entitlement approvals for the Project that CITY finds are consistent with and implement the DDA (which includes the Development Plan), Existing Land Use Regulations, Entitlement Approvals and this Agreement, and (3) not have any Entitlement Approvals conditioned or delayed for reasons inconsistent with the DDA (or as contemplated in the DDA which includes the Development Plan), Existing Land Use Regulations, Entitlement Approvals or this Agreement. To the extent any changes in the Existing Land Use Regulations, or any provisions of future General Plans, Specific Plans, Zoning Ordinances or other rules, regulations, ordinances or policies (whether adopted by means of ordinance, initiative, referenda, resolution, policy, order, moratorium, or other means, adopted by the City Council, Planning Commission, or any other board, commission, agency, committee, or department of City, or any officer or employee thereof, or by the electorate) of CITY (collectively, "Future Rules ") are not in conflict with the Vested Right, such Future Rules shall be applicable to the Project. For purposes of this Section 3.6.1, the word "conflict" means Future Rules that would (i) alter the Vested Rights, or (ii) frustrate in a more than insignificant way the intent or purpose of the Vested Rights in relation to the Project, or (iii) materially increase the cost of performance of, or preclude compliance with, any provision of the Vested Right, or (iv) delay in a more than insignificant way development of the Project, or (v) limit or restrict the availability of public utilities, services, infrastructure of facilities (for example, but not by way of limitation, water rights, water connection or sewage capacity rights, sewer connections, etc.) to the Project, or (vi) impose limits or controls in the rate, timing, phasing or sequencing of development of the Project. To the extent that Future Rules conflict with the Vested Rights, they shall not apply to the Project and the Vested Rights shall apply to the Project. 16 3.6.2 Availability of Public Services. To the maximum extent permitted by law and consistent with its authority, City shall assist Developer in reserving such capacity for sewer and water services as may be necessary to serve the Project. 3.7. Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Authority (and notwithstanding any future action of CITY or its citizens, whether by ordinance, resolution, initiative or otherwise), the rules, regulations, and official policies governing the Project, including, without limitation, the permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, the design, improvement and construction standards and specifications applicable to the Project, including any changes authorized pursuant to Section 3.6.1, the subdivision of land and requirements for infrastructure and public improvements, and other terms and conditions of the Project, shall be the DDA, Existing Land Use Regulations, and the provisions of this Agreement. CITY shall accept for processing and review and take action on all applications for Subsequent Entitlement Approvals as provided in Section 3.9 below. In connection with any Subsequent Entitlement Approval, CITY shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority; provided however, that such discretion shall not prevent development of the Project as set forth in this Agreement. 3.8. Timing of Development. The timing of development will be as set forth in the DDA. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that DEVELOPER will adhere to the terms of the DDA regarding the timing of development. 3.9. Changes and Amendments. By approving the Entitlement Approvals, City has made a policy decision that the Project is in the best interests of the public health, safety and general welfare. Accordingly, City shall not use its discretionary authority in considering any application for a Subsequent Approval, including, but not limited to, the City's administrative consideration of planned unit development permits, conditional use permits and subdivision maps, within the Project Site to change the policy decisions reflected by the Entitlement Approvals or otherwise to prevent or delay development of the Project as set forth in the Entitlement Approvals. Instead, the Subsequent Approvals shall be deemed to be tools to implement those final policy decisions and shall be issued by City so long as they comply with this Agreement and Applicable Law and are not inconsistent with the Entitlement Approvals as set forth above. The parties acknowledge that refinement and further development of the Project will require Subsequent Entitlement Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Entitlement Approvals. In the event DEVELOPER finds that a change in the Existing Entitlement Approvals is necessary or appropriate, DEVELOPER shall apply for a Subsequent Entitlement Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority. If approved, any such change in the Existing Entitlement Approvals shall be incorporated herein by reference as though fully set forth, shall thereafter be deemed to be an 17 Existing Entitlement Approval for all purposes of this Agreement and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY's reasonable discretion, a change to the Existing Entitlement Approvals requested by DEVELOPER or an approved assignee shall be deemed "minor" and shall not require an amendment to this Agreement. In an instance when CITY has reasonably determined that a proposed change to the Existing Entitlement Approvals constitutes a minor change pursuant to this Section 3.9, CITY and DEVELOPER shall cooperate to ensure the preparation of any environmental analysis deemed appropriate and necessary pursuant to CEQA. Furthermore, CITY and DEVELOPER shall cooperate to ensure the filing of a notice of determination in this regard. 3.10. Reservations of Authority. Notwithstanding any other provision of this Agreement to the contrary, the laws, rules, regulations and official policies set forth in this Section 3.10 shall apply to and govern development of the Property and Project to the extent set forth herein. 3.10.1 Consistent Future City Regulations. City ordinances, resolutions, and official policies, including initiative measures, adopted or approved after the Effective Date pursuant to procedures provided by law which are applied on a City -wide basis ( "New CITY Laws ") shall apply to and govern development of the Property, provided that any New CITY Laws which reduce the density or intensity of the Project below that permitted by the Existing Land Use Regulations, the Existing Entitlement Approvals or the DDA, alter the permitted uses of the Property, reduce the maximum height or size of any permitted buildings, impose additional obligations in connection with the reservation or dedication of land for public purposes beyond the requirements identified in the DDA, or limit the rate, timing, or sequencing of development of the Property from that required in the DDA or in any Entitlement Approvals, shall be deemed inconsistent with this Agreement and shall not be applicable to the development of the Property and Project. 3.10.2 Overriding State and Federal Laws. CITY shall not be precluded from adopting and applying New CITY Laws to the Project and development of the Project to the extent that such New CITY Laws are required to be applied by State or Federal laws or regulations and which would override DEVELOPER's Vested Rights as set forth in this Agreement, provided however, that (i) DEVELOPER does not waive its right to challenge or contest the validity of such State, Federal, or New CITY Laws or regulation; and (ii) such new CITY Law shall only be applied to the Project and development of the Project to the extent necessary to comply with such new State or Federal law or regulation. In the event that such State or Federal law or regulation (or New CITY Laws undertaken pursuant thereto) prevents or precludes substantial compliance with one or more provisions of the DDA, the Existing Land Use Regulations or this Agreement, the Parties agree to consider in good faith amending or suspending such provisions of this Agreement as may be necessary to comply with such State or Federal laws (or New CITY Laws), provided that no Party shall be bound to approve any amendment to this Agreement unless this Agreement is amended in accordance with the procedures applicable to the adoption of development agreements as set forth in the Development Agreement Statute and Tustin CITY Code and each Party retains full discretion with respect thereto. 18 3.10.3 Public Health and Safety. Nothing in this Agreement shall preclude the City Council of the CITY from adopting and applying New CITY Laws which the City Council of the CITY finds are reasonably necessary to protect persons on the Property or in the immediate community, or both, from conditions dangerous to their health or safety notwithstanding that the applications of such New CITY Laws, or other similar limitation would result in the impairment of DEVELOPER's Vested Rights under the Agreement or the Existing Land Use Regulations. In determining whether any such New CITY Laws are reasonably necessary to protect persons as set forth above, the City Council shall make findings, based on evidence presented to and accepted by the City Council that the changes are reasonably necessary to protect the public health or safety. The provisions of this Section 3.10.3 do not apply to any measure adopted by initiative. 3.10.4 Uniform Construction Codes and Regulations. Policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including all uniform codes adopted by CITY and any local amendments to those codes adopted by CITY in the future shall apply to the Project and Property. 3.10.5 Police Power. The Parties acknowledge and agree that CITY can not contractually limit its own police power, its power to address actual or potential threats to public health or safety, including but not limited to environmental regulations (including without limitation NPDES) or its emergency authority or powers. The foregoing limitations, reservations, and exceptions are intended to reserve to CITY all of its powers that cannot be limited. In all respects not provided for in this Agreement, CITY shall retain full rights to exercise its police powers to regulate development of the Project and Property. Any uses or development requiring a concept plan, design review, tentative tract map, conditional use permit, variance, or other Entitlement Approvals in accordance with Existing Land Use Regulations shall require a permit or approval pursuant to this Agreement and notwithstanding any other provision set forth herein, this Agreement is not intended to vest DEVELOPER'S right to issuance of such permit or approval. 3.11. Processing. 3.11.1 Subdivisions. A subdivision, as defined in Government Code Section 66473.7, shall not be approved unless a tentative map for the subdivision complies with the provisions of said Section 66473.7. This provision is included in this Agreement to comply with Section 65867.5 of the Government Code. 3.11.2 Subsequent Entitlement Approvals. By approving the Entitlement Approvals, City has made a final policy decision that the Project is in the best interests of the public health, safety and general welfare. Accordingly, City shall not use its discretionary authority in considering any application for a Subsequent Entitlement Approval, including, but not limited to, the City's administrative consideration of planned unit development permits, conditional use permits and subdivision maps, within the Project Site to change the policy decisions reflected by the Entitlement Approvals or otherwise to prevent or delay development of the Project as set forth in the Entitlement Approvals. Instead, the Subsequent Entitlement Approvals shall be deemed to be tools to implement those final policy decisions and shall be issued by City so long as they comply with this Agreement and Applicable Law and are not 19 inconsistent with the Entitlement Approvals as set forth above. CITY shall employ all lawful actions capable of being undertaken by CITY to promptly (i) accept all complete applications for Subsequent Entitlement Approvals (collectively, "Applications ") and (ii) process and take action upon Applications in accordance with applicable law with a goal of completing the review within time frames identified in the DDA; provided however, that CITY shall not be deemed in default under this Agreement should such time frame(s) not be met. To the extent that DEVELOPER desires that CITY plan check or process an Application on an expedited basis and to the extent that it requires an additional expense beyond the customary expense applicable to the general public, CITY shall inform DEVELOPER of such additional expense, including the cost of overtime and private consultants and other third - parties. If acceptable to DEVELOPER, DEVELOPER shall pay the additional cost and CITY shall use best efforts to undertake the most accelerated processing time as lawfully possible utilizing overtime and the services of private consultants and third parties to the extent available. Upon the written request of DEVELOPER, CITY shall inform DEVELOPER of the necessary application requirements for any requested CITY approval or requirement relating to the Project. CITY may deny an application for a Subsequent Entitlement Approval only if such application does not comply with the DDA, this Agreement or Existing Land Use Regulations or is materially inconsistent with the Existing Entitlement Approvals. 3.11.3 Filings. DEVELOPER shall exercise reasonable efforts to file applications for permits and Entitlement Approvals within the time frames and schedules as generally outlined in the DDA and shall exercise reasonable efforts to attempt to obtain permits and Entitlement Approvals within the time frames identified in the DDA; provided, however, that failure solely to comply with such time frame(s) shall not be deemed to be a default under this Agreement. 3.11.4 Cooperation. CITY and DEVELOPER shall cooperate in processing all applications for permits and approvals for the Project, provided, however, that such cooperation shall not include any obligation of CITY to incur any un- reimbursed expense, and CITY shall be entitled, subject to the terms of this Agreement, the DDA and DEVELOPER's rights hereunder, to exercise all discretion to which it is entitled by law in processing and issuing any permits and approvals for the Project. 3.11.5 Approvals. Notwithstanding any administrative or judicial proceedings, initiative or referendum concerning any of the Entitlement Approvals, CITY shall process applications for permits and approvals as provided herein to the fullest extent allowed by law and DEVELOPER may proceed with development of the Project pursuant to the DDA, Existing Land Use Regulations, and Entitlement Approvals to the fullest extent allowed by law. 3.12. Infrastructure and Public Facilities. Construction of infrastructure and public facilities will be as set forth in the DDA. 3.13. Dedications. DEVELOPER acknowledges and agrees that it is required (and will be required) to dedicate to CITY and other public agencies on the approved parcel map, or in conjunction with Entitlement Approvals, certain required dedications as required by the DDA, and Existing Land Use Regulations, or by DEVELOPER pursuant to the FINAL EIS/EIR for the MCAS Tustin Project, as amended by either supplemental documentation or addendum and as 20 required by DEVELOPER pursuant to DEVELOPER'S assumption of CITY MCAS Tustin obligations under the "Agreement Between the City of Irvine and the City of Tustin Regarding the Implementation, Timing, Funding of Transportation/Circulation Mitigation for the MCAS Tustin Project" and the "Amendment to the Joint Exercise of Powers Agreement Between the City of Santa Ana and the City of Tustin Regarding the Tustin -Santa Ana Transportation Improvement Authority ". 3.14. Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the Project and development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate fully, at no out of pocket cost to CITY, with DEVELOPER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of CITY. 3.15. Tentative Tract Map Extension. The tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be eligible for extensions of time as provided in Government Code Section 66452.6, except that any extension shall be consistent with any applicable performance schedule as provided or established in the DDA and shall not be deemed or considered in any way an extension of any DEVELOPER obligations under the DDA. 4. ANNUAL REVIEW. Timing and Annual Review. The Tustin City Council shall review DEVELOPER's performance under this Agreement at least every twelve (12) months from the Effective Date until expiration of the Agreement. In connection with such review, both the CITY and DEVELOPER shall have a reasonable opportunity to assert matters which either believes have not been undertaken in accordance with this Agreement, to explain the basis for such assertion, and to receive from the other party a justification of its position on such matters. 4.1. Review Procedure. CITY shall provide notice to DEVELOPER and deliver to DEVELOPER or it successor in interest a copy of all public staff reports, documents and related exhibits concerning CITY's review of DEVELOPER's performance hereunder at least 30 days prior to any date proposed for City Council review of performance under the Agreement. 4.1.1 DEVELOPER or its Successor in Interest shall demonstrate good faith compliance with the terms of this Agreement and shall furnish evidence of good faith compliance, as CITY, in its reasonable exercise of its discretion, may require. Evidence of good faith compliance may include the following: (a) conformance with the DDA and its scope of development and schedule of performance; CITY. (b) conformance with the requirements of the Specific Plan; and (c) conformance with provisions of this Agreement identified by the 21 4.1.2 DEVELOPER or its successor in interest shall have the opportunity to respond to CITY's evaluation of DEVELOPER's performance, either orally or in a written statement, at DEVELOPER's election. 4.1.3 The City Council may refer the matter to the Planning Commission for further proceedings or for a report and recommendation. 4.2. Notice of Non - Compliance. If on the basis of the annual review, the CITY determines, based upon substantial evidence, or at any other time during the term of this Agreement, either Party concludes that the other party has not complied in good faith with the terms of this Agreement, then such Party may issue a written "Notice of Non - Compliance" specifying the grounds therefore and all facts demonstrating such non - compliance. The Party receiving a Notice of Non-Compliance shall have forty -five (45) days to respond in writing to said notice by specifying either how its non - compliance has been cured (or is diligently being cured) or the grounds upon which it believes that it is complying with this Agreement. The time frame to respond to a Notice of Non - Compliance may be extended by mutual agreement of the Parties. If the response to the Notice of Non - Compliance has not been received in the offices of the Party alleging non - compliance within the prescribed forty -five (45) days, or within such other period of time as mutually agreed, the Notice of Non - Compliance shall be conclusively presumed to be valid, and if the non - complying Party is DEVELOPER, the CITY may commence proceedings on termination or modification of the Agreement pursuant to the Tustin City Code and Section 4.3 of this Agreement. If the party receiving a Notice of Non - Compliance responds within the time period provided above, the parties agree to meet in good faith at reasonable times and from time to time for a period of at least sixty (60) days to arrive at a mutually acceptable resolution of the matters) asserted in the Notice of Non - Compliance and disputed in the response. If after sixty (60) days, or any extension of time as mutually agreed to by the Parties, the Parties have failed to arrive at a mutually acceptable resolution of such matter(s), either Party may pursue any remedy at law or in equity, and the CITY may commence proceedings on termination or modification of this Agreement pursuant to Sections 9617 and 9618 of the Tustin City Code and Section 4.3 of this Agreement. 4.3. Modification or Termination. If the City Council determines to proceed with modification or termination of this Agreement after following the procedure for a Notice of Non - Compliance under Section 4.2 of this Agreement, the City Council shall give notice to DEVELOPER or successor in interest thereto of its intention to do so. The Notice shall contain all information required by Tustin City Code Section 9618. At the time and place set for the hearing on modification or termination, the City Council may refer the matter back to the Planning Commission for further proceedings or for a report and recommendation. The City Council may take such action as it deems necessary to protect the interests of the CITY, including but not limited to, the receipt of additional evidence as to DEVELOPER'S compliance with the terms of this Agreement. The decision of the City Council shall be final, subject only to judicial review pursuant to California Code of Civil Procedure Section 1094.5(b). 4.4. Certificate of Agreement Compliance. If, at the conclusion of a periodic review, DEVELOPER is found to be in compliance with this Agreement, CITY shall, upon request of the DEVELOPER, issue a Certificate of Compliance (the "Certificate ") to DEVELOPER stating that after the most recent periodic review and based upon the information known or made known 22 to the City Council that: (1) this Agreement remains in effect, and (2) DEVELOPER is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, and shall state the anticipated date of commencement of the next periodic review. DEVELOPER may record the Certificate with the County Recorder. 5. DEFAULT, REMEDIES, AND TERMINATION. 5.1. Default Procedure. In addition to procedures identified in Section 4.2 and/or 4.3 of this Agreement, a non - defaulting party (the "Non- Defaulting Party ") at its discretion may elect to declare a default under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach of any other Party ( "Defaulting Party ") to perform any material duty or obligation of said Defaulting Party in accordance with the terms of this Agreement and provided the Notice of Non - Compliance procedures in Section 4.2 have first been exhausted. However, the Non - Defaulting Party must provide written notice to the Defaulting Party setting forth the nature of the breach or failure and the actions, if any, required by the Defaulting Party to cure such breach or failure. The Defaulting Party shall be deemed to be in "default" of its obligations set forth in this Agreement if the Defaulting Party has failed to take action and cure the default within ten (10) days after the date of such notice (for monetary defaults) or within thirty (30) days after the date of such notice (for non - monetary defaults). If, however, a non - monetary default cannot be cured within such thirty (30) day period, as long as the Defaulting Party does each of the following: (a) notices the Non - Defaulting Party in writing with a reasonable explanation as to the reasons the asserted default is not curable within the thirty (30) day period; (b) notifies the Non - Defaulting Party in writing of the Defaulting Party's proposed course of action to cure the default; (c) promptly commences to cure the default within the thirty (30) day period; (d) makes periodic written reports to the Non - Defaulting Party as to the progress of the program of cure, and: (e) diligently prosecutes such cure to completion, then the Non - Defaulting Party shall grant in writing the Defaulting Party such additional time as determined by the Non - Defaulting Party as reasonably necessary to cure such default. 5.2. Default Remedies. After complying with Section 5.1, in the event of an uncured default, the Non - Defaulting Party, at its option, may institute legal action to cure, correct or remedy such default, enjoining any threatened or attempted violation, enforce the terms of this Agreement by specific performance, or pursue any other legal or equitable remedy. Furthermore, CITY, in addition to or as an alternative to exercising the remedies in this Section 5.2, in the event of a material default by DEVELOPER, may give notice of its intent to terminate or modify this Agreement pursuant to Section 4.3, in which event the matter shall be scheduled for consideration and review by the City Council in the manner set forth in Tustin City Code 23 Section 9618. The decision of the City Council shall be final, subject only to judicial review pursuant to California Code of Civil Procedure Section 1094.5(b). 5.3. DEVELOPER'S Remedies. In the event that the CITY is in material default under this Agreement, the DEVELOPER shall be entitled to any or all of the following remedies: (1) Seeking mandamus or special writs, injunctive relief, or specific performance of this Agreement; (2) Modifications or termination of this Agreement; or (3) Seeking any other remedy available at law or in equity, provided, however, except as provided in Section 8.10 below, the DEVELOPER agrees and covenants on behalf of itself and it successors and assigns, not to sue CITY for damages or monetary relief for any breach of this Agreement or arising out of or connected with any dispute, controversy or issue regarding the application or effect of this Agreement, or for consequential damages arising out of or connected with any dispute, controversy, or issues regarding the application or effect of the Existing Land Use Regulations, or any Development Permits or Entitlement Approvals sought in connection with development or use of the Property or Project, or any portion thereof. DEVELOPER acknowledges that the CITY would not have entered into this Agreement if the CITY could be held liable for general, special or compensatory damages for any default or breach arising out of this Agreement and that DEVELOPER has adequate remedies other than general, special or compensatory damages, to secure the CITY's compliance with its obligations under this Agreement. Therefore, DEVELOPER agrees that the CITY, its officers, employees and agents shall not be liable for any general, special or compensatory damages and that this section shall apply to any successor, assignee or transferee of the DEVELOPER. 5.4. Third Party Legal Challenges. In the event of any legal action instituted by a third party challenging the validity or enforceability of any provision of this Agreement, the Existing Land Use Regulations, the DDA (including without limitation the Development Plan), or Entitlement Approvals for the Project ( "Third Party Challenge "), DEVELOPER shall have the right but not the obligation to defend any Third Party Challenge, at its expense. DEVELOPER, in defending any Third Party Challenge shall further have the right to settle such Third Party Challenge, provided that nothing herein shall authorize DEVELOPER to settle such Third Party Challenge on terms that would constitute an amendment or modification of this Agreement, the Existing Regulations, or Development Plan unless such amendment or modification is approved by the CITY in accordance with applicable legal requirements, and CITY reserves its full legislative discretion with respect thereto. CITY shall not incur any costs or take any actions to defend such Third Party Challenge without DEVELOPER's approval. DEVELOPER shall also indemnify and hold harmless the CITY and its agents, officials and employees from and against all claims, losses, or liabilities assessed or awarded against the CITY by way of judgment, settlement, or stipulation. 6. INDEMNITY BY DEVELOPER. DEVELOPER agrees to indemnify, defend, and hold harmless CITY, CITY's designees, and their respective elected and appointed officials, boards, commissions, agents, contractors, and employees from and against any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited to attorney's fees and costs) which may arise, directly or indirectly, from the acts, omissions, or operations of DEVELOPER or DEVELOPER's agents, contractors, subcontractors, agents, or employees pursuant to this Agreement, but excluding any loss resulting from the intentional or active negligence of the CITY, CITY's designee, or each of their respective elected and 24 appointed officials, boards, commissions, officers, agents, contractors, and employees. DEVELOPER shall select and retain counsel reasonably acceptable to the CITY to defend any action or actions and DEVELOPER shall pay the cost thereof. The indemnity provisions set forth in this Agreement shall survive termination of the Agreement. 7. MORTGAGEE PROTECTION. The parties hereto agree that this Agreement shall not prevent or limit DEVELOPER, in any manner, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property, subject to any terms or provisions of the DDA to the extent relating to the encumbrance of the Property by any mortgage, deed of trust or other security device. Any Mortgagee of the Property shall be entitled to the following rights and privileges: (a) This Agreement shall be superior to the lien of any mortgage. Notwithstanding the foregoing, neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law, and any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof by a mortgagee (whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination or otherwise) shall be subject to the terms and conditions of this Agreement and any such mortgagee who takes title to the Property or any portion thereof shall be entitled to benefits arising under this Agreement. (b) Each Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, shall upon written request in writing to CITY, be entitled to receive written notice from CITY of results of the Annual Review and of any default by DEVELOPER in the performance of DEVELOPER's obligations under this Agreement. (c) If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to DEVELOPER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee concurrently with delivery of the notice of default to DEVELOPER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement (including any extended cure period necessary in order to allow the Mortgagee to obtain title to the Property and cure the default). (d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of DEVELOPER'S obligations or other affirmative covenants of DEVELOPER hereunder, or to guarantee such performance; except that (i) the Mortgagee shall have no right to develop the Property without fully complying with the terms of this Agreement, the DDA, Existing Land Use Regulations and Entitlement Approvals and (ii) to the extent that any covenant to be performed by DEVELOPER is a condition precedent to the performance of a covenant by CITY, the performance thereof shall continue to be a condition precedent to CITY's performance hereunder. 25 Notwithstanding anything to the contrary contained above in this Section, any Mortgagee shall be subject to all of the terms of the DDA, to the extent applicable pursuant to the DDA to such Mortgagee. CITY's terms are subject to lender review. 8. MISCELLANEOUS PROVISIONS. 8.1. Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the Orange County Recorder by the City Clerk within ten (10) days after CITY executes this Agreement, as required by Section 65868.5 of the Government Code. If the parties to this Agreement or their Successors in Interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if CITY terminates or modifies this Agreement as provided for herein and in Government Code Section 65865.1 for failure of DEVELOPER to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the Orange County Recorder. 8.2. Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties with respect to the matters set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 8.3. Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. 8.4. Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the internal laws of the State of California without reference to choice of law or conflicts of law provisions. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof. The decision of the City Council shall be final, subject only to judicial review pursuant to California Code of Civil Procedure Section 1094.5(b). 8.5. Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 8.6. Singular and Plural. As used herein, the singular of any word includes the plural. 8.7. Time of Essence. Subject to the following sentence, time is of the essence in the performance of each provision of this Agreement. Whenever action must be taken (including the giving of notice or the delivery of documents) under this Agreement during a certain period of time or by a particular date that ends or occurs on a non - business day, then such period or date 26 shall be extended until the immediately following business day. As used herein, "business day" means any day other than Saturday, Sunday or a federal or California state holiday. 8.8. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter. 8.9. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 8.10. Attorneys Fees. If legal action is commenced to enforce or to declare the effect of any provision of this Agreement, the prevailing party shall be entitled to recover from the non- prevailing party actual and reasonable attorneys' fees and other litigation costs. In addition to the foregoing award of attorneys' fees and other litigation costs to the prevailing party, the prevailing party in any lawsuit or reference proceeding on this Agreement shall be entitled to its attorneys' fees and other litigation costs incurred in any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. This provision shall survive termination of this Agreement. 8.11. Force Majeure. 8.11.1 Time periods for performance of any obligations under this Agreement may be extended for Force Majeure, except that in no event, shall the Term of this Agreement be extended by an event of Force Majeure Delay. 8.11.2 In the event of a lawsuit, referendum, or initiative which constitutes a Force Majeure Delay and which directly affects the ability of the claiming Party to meet its non- monetary obligations under this Agreement, including the deadlines imposed by the DDA Schedule of Performance or the ability of the DEVELOPER to Complete the Project for a period of more than two years, the Parties shall meet and confer on mutually acceptable ways or modifications to the Project to proceed with development thereof notwithstanding such lawsuit, referendum or initiative. In the event that the Parties are unable to agree, the question of whether the extension of such period of Force Majeure Delay beyond two years is reasonable under the circumstances will be presented to the City Council (with reasonable notice to and an opportunity to be heard by the DEVELOPER). The City Council may then decide based on its good faith deliberations to either permit the extension of such period of Force Majeure Delay or proceed with its remedies under this Agreement. The decision of the City Council shall be final, subject only to judicial review pursuant to California Code of Civil Procedure Section 1094.5(b). 8.11.3 If any Party (the "First Party ") believes that an extension of time is due to Force Majeure Delay, it shall notify the other Party (the "Second Party ") in writing within thirty (30) calendar days from the date upon which the First Party becomes aware of such Force Majeure Delay, describing the Force Majeure Delay, when and how the First Party obtained knowledge thereof, the date the event commenced, the steps the First Party anticipates taking to 27 respond to such Force Majeure Delay, and the estimated delay resulting from such Force Majeure Delay and response. The extension for Force Majeure Delay shall be granted or denied in the Second Party's reasonable discretion. If the First Party fails to notify the Second Party in writing of its request for a given Force Majeure Delay within the thirty (30) calendar days specified above, there shall be no extension for such Force Majeure Delay. 8.12. Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all Successors in Interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof. 8.13. Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same affect as if all of the parties had executed the same instrument. 8.14. Jurisdiction and Venue. Subject to the provisions of Section 5.3 above, any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California, Santa Ana Division, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. 8.15. Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between CITY and DEVELOPER is that of a government entity regulating the development of private property and DEVELOPER of such property. 8.16. Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 8.17. Estoppel Certificate. Any party hereunder, may at any time, deliver a written notice to the other party requesting such Party to certify in writing that, to the best knowledge of the certifying party: (i) this Agreement is in full force and effect and a binding obligation of the 28 party; (ii) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the date and nature of the amendments to this Agreement, but it remains in full force and effect as modified, and a continuing binding obligation of the party; and (iii) the requesting party is not in default in performance of their obligations set forth in the Agreement, or if the party is in default, provide a description thereof of the nature of such default(s). A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following receipt thereof. Any third party, including a mortgagee shall be entitled to rely on the certificate. DEVELOPER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates. 8.18. Authority to Execute. The person or persons executing this Agreement on behalf of each party warrants and represents that he or she /they have the authority to execute this Agreement on behalf of such party and warrants and represents that he or she /they has/have the authority to bind such party to the performance of its obligations hereunder. [SIGNATURES CONTAINED ON FOLLOWING PAGE] 29 EXHIBIT "A" TO DEVELOPMENT AGREEMENT Legal Description of Property < Same Legal as applied to DDA should be attached since obligations go beyond Developer property but to Project» [to be inserted /attached] Exhibit A lA North Property Legal Description and Site Map Lots 20, MMM, NNN, and PPP of Tract No. 17404 in the City of Tustin, County of Orange, State of California as shown on a map filed in Book 884, Pages 1 to 14, Official Records of Orange County, California. IN THE CITY OF TUSTIN, COUNTY OF ORANGE STATE OF CALIFORNIA EXHIBIT "B" TO DEVELOPMENT AGREEMENT Map showing Property and its location [to be inserted /attached] Exhibit B PREPARED BYf:-j , -# J FUSCOE 111 BARRANC PARKWAY 16795 von Kerman. Suits 100 Irvine, California 92606 HI 949 474 1960 • fax 949 474 5315 — . coin PREPARED FOR O IRVINE COMPANY I APARTMENT COMMUNITIES LOCATION MAP P \ Projects \226 \51 \Eng \E.6 bts \Docs \22551— XH— Lacaton_Mop dwg (10/23/2012 2 07 PM) Attachment I Planning Commission Resolution No. 4205 and approved Minutes RESOLUTION NO. 4205 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, RECOMMENDING THAT THE CITY COUNCIL APPROVE DEVELOPMENT AGREEMENT (DA) 2012 -002, CONCEPT PLAN (CP) 2012 -003, DESIGN REVIEW (DR) 2012 -005, DENSITY TRANSFER, DENSITY BONUS, AND CONCESSIONS OR INCENTIVES AUTHORIZED UNDER TUSTIN CITY CODE SECTION 9123 RELATED TO THE PROVISION OF AFFORDABLE HOUSING UNITS IN COMPLIANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65915(1) FOR 225 AFFORDABLE RESIDENTIAL APARTMENTS AT DISPOSITION PACKAGE 1A- NORTH, TUSTIN LEGACY (ST. ANTON PARTNERS, LLC). The Planning Commission does hereby resolve as follows: The Planning Commission finds and determines as follows: A. That a proper application for Development Agreement (DA) 2012 -002, Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123, has been submitted by St. Anton Partners, LLC, related to the provision of 225 affordable residential apartment housing units in compliance with California Government Code Section 65915(1) required for the proposed development of Tustin Legacy Disposition Package 1A- North, Tustin Legacy, to be implemented by St. Anton Partners or its affiliate as may be approved by the City of Tustin. B. That the site is zoned as Planning Area 15, Residential Core, Neighborhood G in the MCAS Tustin Specific Plan (SP -1); and designated MCAS Tustin (MCAS) by the Tustin General Plan. In addition, the project has been reviewed for consistency with the Air Quality Sub - element of the City of Tustin General Plan and has been determined to be consistent with the Air Quality Sub - element. C. That MCAS Tustin Specific Plan Section 4.2.9 requires all private development at MCAS Tustin to obtain a Development Agreement in accordance with Section 65864 et seq. of the Government Code and Sections 9600 to 9619 of the Tustin City Code. In compliance with Tustin City Code Section 9611, the Tustin Planning Commission must make a recommendation on the proposed Development Agreement to the City Council. After consideration of the proposed project, the Tustin Planning Commission supports Tustin City Council approval of the proposed Development Agreement with the following findings that the project: Resolution No. 4205 Page 2 Is consistent with the objectives, policies, general land uses and programs specified in the General Plan and the MCAS Tustin Specific Plan (except for any Concessions and Incentives authorized for the project by the Tustin City Council). 2. Is compatible with the uses authorized in the district in which the real property is located (Planning Area 15). Note: the proposed apartment project complies with the uses authorized by the MCAS Tustin Specific Plan. 3. Is in conformity with the public necessity, public convenience, general welfare, and good land use practices. Note: the proposed provision of 225 affordable apartment units meets this goal. 4. Will not be detrimental to the health, safety, and general welfare. Note: compliance with the MCAS Tustin Specific Plan, Tustin City Code, and other regulations will ensure that the project will not be detrimental in any way. 5. Will not adversely affect the orderly development of property. Note: the proposed project is orderly and well designed. 6. Will have a positive fiscal impact on the City. Note: the provisions of the proposed DDA, DA and conditions of approval will ensure that the project will have a positive fiscal impact on the City. D. That MCAS Tustin Specific Plan Section 4.2.2.A requires the submission of a Concept Plan prior to or concurrent with the submission of a new development proposal within Planning Area 15. The project has been found to comply with the requirements of the MCAS Tustin Specific Plan (except as authorized by any approved Concessions and Incentives). After consideration of the proposed project, the Tustin Planning Commission has determined that the proposed project complies with the following MCAS Tustin Specific Plan Concept Plan review criteria. Specifically, the proposed project depicts: 1. Continuity and adequacy of all circulation systems, such as roads, access points, trails, pedestrian ways, and other infrastructure systems needed to serve the project; 2. Continuity and design quality of architecture and renovations proposed, as well as landscape and hardscape theme and treatments; 3. Satisfactory response to the urban design features specified in Chapter 2 and under each Planning Area in Chapter 3 (Note: the proposed project is not changing master planned circulation, utility, traffic and related assumptions provided in Chapter 2 of the MCAS Tustin Specific Plan. No specific design features are provided for multi - family developments in Chapter 3); Resolution No. 4205 Page 3 4. Conformity with the Non - Residential Land Use/Trip Budget, including authorized adjustments (Note: this criteria is not applicable since the project is a multi - family residential use); and, 5. Compliance with other Specific Plan provisions (Note: project compliance with MCAS Tustin development requirements is documented within the October 9, 2012 staff report provided to the Tustin Planning Commission, (except as authorized by any approved Concessions and Incentives)). E. That MCAS Tustin Speck Plan Section 4.2.4 requires the submission of a Design Review application following or concurrently with submittal of a concept plan, individual development and reuse projects within Planning Area 15. After consideration of the proposed project, the Tustin Planning Commission has determined that the proposed project's design satisfies the following general architectural and site design principles in that: 1. The buildings define and relate to the street edge, with architecture to face the streets. 2. The buildings interface with adjacent residential uses. 3. The architecture is technically sophisticated in detailing. 4. There is a rich palette of natural materials and textures. 5. The architecture proposes visually interesting fagade treatments with distinctive architectural elements and design details. 6. The project utilizes varied setbacks, projections, roof lines, windows and reveals, and elements that minimize the impact of the building mass. 7. The buildings are designed with traditional forms, accented by unique architectural shapes and details. 8. The buildings reflect high quality design through the incorporation of coordinated architecture utilizing elements, materials, and colors that complement the relaxed, informal style. 9. The buildings incorporate smaller -scale architectural details such as porches, bays, recessed or projecting balconies, and dormers to visually reduce the height and scale of the building. 10. The buildings utilize varied building heights. 11. Building fagade articulation is implemented. In addition, the proposed project's location, size, architectural features and general appearance will not impair the orderly and harmonious development of the area, the present or future development therein, the occupancy thereof, or the community as a whole, based upon a consideration of the following criteria: 1. Height, bulk and area of buildings. 2. Setbacks and site planning. 3. Exterior materials and colors. 4. Type and pitch of roofs. 5. Size and spacing of windows, doors and other openings. Resolution No. 4205 Page 4 6. Towers, chimneys, roof structures, flagpoles, radio and television antennas. 7. Landscaping, parking area design and traffic circulation. 8. Location, height and standards of exterior illumination. 9. Location and appearance of equipment located outside of an enclosed structure. 10. Location and method of refuse storage. 11. Physical relationship of proposed structures to existing structures in the neighborhood. 12.Appearance and design relationship of proposed structures to existing structures and possible future structures in the neighborhood and public thoroughfares. 13. Proposed signing (to be submitted for staff review following project approval) 14. Development guidelines and criteria as may be adopted by the City Council. Also, the project applicant has proposed community gates for the project. After consideration of the proposed project, the Tustin Planning Commission has determined that the proposed use of gates at the project is supportable since the project is of a higher density, is in close proximity to the park, is surrounded by streets on all sides, and will not impact the parking demand, usage, or the vehicular circulation on the site. That MCAS Tustin Specific Plan Section 3.2.3 permits the transfer of residential units (density transfer) between parcels subject to review and approval. After consideration of the proposed project, the Tustin Planning Commission has determined that the requested Density Transfer is an innovative approach to providing a significant number of affordable units at Tustin Legacy and supports City Council approval of the request with a condition that St. Anton Partners and The Irvine Company enter into an Affordable Housing /Regulatory Agreement with the City of Tustin to ensure availability of the 225 and 37 affordable apartment units (respectively) for 55 years. G. That Tustin City Code Section 9141(b) authorizes the submission of an application for a Density Bonus and /or Concession or Incentive to be processed concurrently with any other permit application(s) which require entitlements. The City must support density bonus requests, concessions or incentives when projects provide affordable housing units in compliance with California Government Code Section 65915(1), as authorized under Tustin City Code Section 9123. After consideration of the proposed project, the Tustin Planning Commission finds that there is no substantial evidence that: OF 6 Resolution No. 4205 Page 5 1. The concession(s) or incentive(s) is not required in order to provide for affordable housing costs or for affordable housing rent for the target units. 2. The concession(s) or incentive(s) would have a specific adverse impact, as defined in Government Code Section 65589.5, subdivision (d), paragraph (2), upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate- income households. 3. The concession or incentive would be contrary to state or federal law. Consequently, the Tustin Planning Commission supports Tustin City Council approval of the requested Density Bonus, Concessions and Incentives including: Parking Authorization to: 1. Provide 434 parking spaces on site instead of the 467 spaces required by the MCAS Tustin Specific Plan. 2. Utilize 88 compact spaces when compact parking is not allowed within the MCAS Tustin Specific Plan. 3. Authorize 225 covered parking spaces instead of the 372 carports and garages required by the code. Common Authorization to provide 87,822 square feet of common Open Space open space instead of the 90,000 square feet required by the MCAS Tustin Specific Plan. Note: the developer is being required to improve the adjacent 4.706 acre site for use as a public park (204,993 square feet of common open space) which should be considered a part of the project). Setbacks Authorization to allow proposed buildings and structures to encroach 4 -12 feet into the MCAS Tustin Specific Plan required 30 foot building setback. Building Authorization to exceed the 45 foot maximum building Height height for Planning Area 15 with one structure that is 62 feet in height. H. That a public hearing was duly called, noticed, and held for DA 2012- 002, CP 2012 -003, DR 2012 -005, Density Transfer and Density Bonus, Concessions or Incentives on October 9, 2012 by the Planning Commission. I. That on January 16, 2001, the City of Tustin certified the Program Final Environmental Impact Statement/Environmental Impact Report Resolution No. 4205 Page 6 (FEIS /EIR) for the reuse and disposal of MCAS Tustin. On December 6, 2004, the City Council adopted Resolution No. 04 -76 approving a Supplement to the FEIS /EIR for the extension of Tustin Ranch Road between Walnut Avenue and the future alignment of Valencia North Loop Road. On April 3, 2006, the City Council adopted Resolution No. 06-43 approving an Addendum to the FEIS /EIR. The FEIS /EIR along with its Supplemental and Addendum is a program EIR under the California Environmental Quality Act (CEQA). The FEIS /EIR, Supplemental and Addendum considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin. An environmental checklist was prepared for the proposed project that concluded no additional environmental impacts would occur from approval of the project (Attachment 3 of Exhibit A). The Environmental Analysis Checklist concludes that it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment because all potentially significant effects 1) have been analyzed adequately in an earlier EIR pursuant to applicable standards, and 2) have been avoided or mitigated pursuant to that earlier EIR, including revisions or mitigation measures that are imposed upon the proposed project. Further, Government Code Section 65457, subdivision (a), establishes a statutory CEQA exemption for any residential development project, including any subdivision, or zoning change that is undertaken to implement and is consistent with a specific plan for which an EIR was certified after January 1, 1980. the City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457. II. The Planning Commission hereby recommends that the City Council approve DA 2012 -002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus, Concessions or Incentives authorized under Tustin City Code Section 9123 for 225 affordable residential apartment units at Disposition Package 1A -North, Tustin Legacy, with the findings noted above and subject to the conditions contained within Exhibit A attached hereto. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 9th day of October, 2012. TEV KOZAK Chairperson ELIZABETH A. BINSACK Planning Commission Secretary 7 Resolution No. 4205 Page 7 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4205 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 9th day of October. 2012. Fz� :X ELIZABETH A. BINSACK Planning Commission Secretary 7 u In the interest of conservation, the attachments to Planning Commission Resolution No. 4205 are not included. See attached proposed City Council Resolutions and Ordinance No. 1423 MINUTES REGULAR MEETING TUSTIN PLANNING COMMISSION OCTOBER 9, 2012 7:00 p.m. CALL TO ORDER: Given INVOCATION /PLEDGE OF ALLEGIANCE: Commissioner Eckman Sworn in by Mayor 1. SEATING OF COMMISSIONER ALTOWAIJI. John Nielsen ROLL CALL: Chair Kozak Chair Pro Tern Thompson Commissioners Altowaiji, Eckman, and Moore Staff Present Elizabeth A. Binsack, Director of Community Development M. Lois Bobak, Assistant City Attorney Dana L. Ogdon, Assistant Director of Community Development Justina Willkom, Principal Planner Scott Reekstin, Senior Planner Amy Stonich, Senior Planner Adrianne DiLeva, Recording Secretary PUBLIC CONCERNS: Chair Pro Tern Thompson stated Chair Kozak, himself, and his fellow Commissioners, would like to take a moment to formally recognize three staff members of the Public Works Department who will be retiring and have assisted the Planning Commission on many items in the past; Doug Anderson, Dana Kasdan, and Terry Lutz. A brief biography on each of the employee's professional histories was read, and they were presented with a historic book on the City of Tustin. Chair Kozak and Chair Pro Tern Thompson thanked them for all their hard work. CONSENT CALENDAR: Approved 2. APPROVAL OF MINUTES — SEPTEMBER 25, 2012, PLANNING COMMISSION. Minutes — Planning Commission October 9, 2012 — Page 1 of 11 RECOMMENDATION: That the Planning Commission approve the minutes of the September 25, 2012, meeting as provided. Motion: It was moved by Eckman, seconded by Thompson, to move the Consent Calendar. Motion carried 4 -1. Commissioner Altowaiji abstained. PUBLIC HEARINGS: Adopted Resolution 3. CONDITIONAL USE PERMIT (CUP) 2012 -10. No. 4207 as amended, recommending approval The request is for Planning Commission recommendation to the City Council of approval of CUP 2012 -10 to the City Council to allow a maximum of 24 paid outdoor events per year at the existing single family residence at 310 S. Pasadena Avenue. APPLICANTS/ PROPERTY OWNERS: PROJECT LOCATION: ENVIRONMENTAL: Wilcox Manor Trust Michael J. Demoratz, Trustee Lindburgh M. McPherson, Trustee, 310 S. Pasadena Avenue, Tustin, CA 92780 310 S. Pasadena Avenue This project is categorically exempt (Class 1 — existing facilities, and Class 3 — small new facilities) pursuant to Sections 15301 and 15303 of the California Environmental Quality Act. RECOMMENDATION /ALTERNATIVES: Pursuant to Tustin City Code Sections 9252c and 9252j2(a)(2), the Planning Commission serves in an advisory capacity to the City Council on all matters relating to the Cultural Resource (CR) District and on all conditional use permits for non - listed uses which support the purposes of the CR District. As such, the following is a recommendation and /or alternatives available: Minutes — Planning Commission October 9, 2012 — Page 2 of 11 • Adopt Resolution No. 4207 recommending that the City Council approve Conditional Use Permit 2012 -10 determining that the proposed project supports the purposes of the CR District and authorizing a maximum of 24 paid outdoor events per year at the existing single family residence at 310 S. Pasadena Avenue; or In the alternative the Commission may take one of the following actions: • Direct staff to prepare a resolution recommending that the City Council deny Conditional Use Permit 2012 -10, with findings that the use does not support the purposes of the CR District and findings for the denial of a conditional use permit. • Direct staff to evaluate the merits of initiating a General Plan Amendment and Zone Change to change the General Plan Land Use Designation and zoning designation of the property at 310 S. Pasadena from Low Density Residential and Single Family Residential (R1) to High Density Residential and Multiple Family Residential (R3); and determine that the proposed use is similar to social halls, lodges, clubs, etc. which are conditionally permitted uses in the R3 District. Commissioner Altowaiji recused himself from the public hearing due to owning property within 500 feet of the proposed project. He then left the dais. Reekstin Gave a presentation of the item. Commission questions generally included: signs for off -site parking; db(A) limit at 10:00 p.m.; alternative off -site parking during business hours of the desired off -site lot; details of the shuttle - service to and from the off -site parking; events being limited to Friday, Saturday, and Sunday; agreement for off -site parking and distance of the parking from the residence; design for the proposed restrooms; use of the property prior to the CUP approval; possibility of the CUP being terminated if the property ownership changes; how the City would gather revenue if the project is approved; the option of a zone change; how the 200 person limit and the limit of five events per month were established; the application of the fire code since the events are outdoors and why indoor events are not proposed; ADA requirements on the property; the French Estate in Orange's similarities to the proposed project; and the number of non -paid events the applicants are currently hosting. Minutes — Planning Commission October 9, 2012 — Page 3 of 11 The public hearing opened at 7:52 p.m. The following members of the public spoke in favor of the proposed project: Lindburgh McPherson, applicant Michael Demoratz, applicant Libby Pankey Jody Wedret Ruth Harrell Chad Ortlieb Robin Fry Gretchen Whisler Melody Mosley Rosemary Pinedo Moses Perez Donna Marsh Peery Cherrill Cady Cathy Michaels Sarah Pearson Raad Ghantous Comments of support generally included: how the use would enhance the character of the community and introduce guests to the history of Tustin; sound from the backyard is not audible from the front; the applicants are a vital asset and generous in donating to non - profits, therefore the paid events would help recover those costs; the applicants are professional and respectful towards their neighborhood when running events; and enrichment of the City and economy through networking and referring guests to local businesses. The following members of the public spoke in opposition to the proposed project: Brent Ferdig Linda Jennings Martin Blenz Teresa O'Toole Comments of concern generally included: regulation of on- site parking /traffic congestion and noise caused by cars and shuttle busses; setting a precedent throughout the City; incompatibility of establishing a high - volume commercial use in a residential neighborhood; alcohol being consumed at events; inconsistency with Tustin's Minutes — Planning Commission October 9, 2012 — Page 4 of 11 General Plan; nuisance of the directional signs and negative impact on property values; the historic home is not open to guests during these paid events, therefore it is not being used to introduce guests to Tustin's history; trash clean -up after events; subletting; and pest control. The public hearing closed at 9:04 p.m. The Commission entered into deliberation of the item recommending amendments to the Resolution and conditions of approval noting that the conditions should be onerous to ensure there is a balance between the neighborhood and proposed use. The Commission's amendments are as follows: Minutes — Planning Commission October 9, 2012 — Page 5 of 11 • Globally change "24 paid outdoor events" to "24 outdoor events." • Delete Resolution No. 4207 Finding I.D.c. • Delete Resolution No. 4207 Finding I.E.e. • Add the Public Works Department to Resolution No. 4207 Finding I.H.8. • Condition 1.5 — Add provision that revocation would be considered after third infraction /citation within one year. • Condition 1.11 — Add "as determined by the Community Development Director." • Condition 2.3 — Specify that the maximum of 200 people is a total per event. • Conditions 2.4, 2.26, and 2.27 — Adjust the hours of operation to no later than 10 p.m. on Friday and Saturday and 9 p.m. Sunday through Thursday, with equipment removal up to one hour later. • Condition 2.6 — Prohibit on -site signage. • Condition 2.7 — Require attendees to present proof of shuttle use. • Condition 2.12 — Require shuttle vans to be non - diesel, have a maximum passenger capacity of twelve, not use horns or bells, be ADA compliant, and not idle for more than three minutes. • Condition 2.13 — Require guests to use the shuttle service rather than walk. • Condition 2.19 — Require litter removal, with no specified distance from the property. • Condition 2.22 — Tie CUP 2012 -10 to the applicants. • Condition 2.29 — Require a schedule of events and information on the applicants' website 30 days prior to an event. • Condition 2.36 — Require all businesses servicing events to obtain all required permits. Minutes — Planning Commission October 9, 2012 — Page 5 of 11 • Condition 2.42 — Add condition requiring residential solid waste collection services. • Condition 4.1 — Require the sewer lateral to be upsized if necessary. The Commission reached a consensus to recommend the proposed project to the City Council with the abovementioned amendments. Motion: It was moved by Thompson, seconded by Moore, to adopt Resolution No. 4207 as amended recommending the item to City Council. Motion carried 4 -0. Commissioner Altowaiji was recused from the vote. The Planning Commission recessed at 10:00 p.m. and readjourned at 10:10 p.m. Adopted Resolution 4. DEVELOPMENT AGREEMENT (DA) 2012 -002, No. 4205 recommending CONCEPT PLAN (CP) 2012 -003, DESIGN REVIEW (DR) approval to the City Council 2012 -005, DENSITY TRANSFER, DENSITY BONUS, AND CONCESSIONS OR INCENTIVES AUTHORIZED UNDER TUSTIN CITY CODE SECTION 9123 RELATED TO THE PROVISION OF AFFORDABLE HOUSING UNITS IN COMPLIANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65915(1). The request is for DA 2012 -002, CP 2012 -003, DR 2012- 005, Density Transfer, Density Bonus, and concessions or incentives authorized under Tustin City Code Section 9123 related to the provision of affordable housing units in compliance with California Government Code Section 65915(1) required for proposed development of Tustin Legacy Disposition Package 1A -North which includes 225 affordable multi - family residential apartment homes. APPLICANT: St. Anton Partners, LLC 4630 Campus Drive, Suite 111 Newport Beach, CA 92660 PROPERTY OWNER: City of Tustin PROJECT LOCATION: Tustin Legacy Disposition Package 1A- North bounded by future Tustin Ranch Road on the east, future Legacy Road on the north, future Park Avenue on the west, and a vacant parcel to the south. Minutes — Planning Commission October 9, 2012 — Page 6 of 11 ENVIRONMENTAL: The Program Final Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the reuse and disposal of MCAS Tustin along with its supplemental and addendum considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin. An environmental checklist was prepared for the proposed project that concluded no additional environmental impacts would occur from approval of the project. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4205 recommending that the Tustin City Council approve Development Agreement (DA) 2012 -002, Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005, Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123 related to the provision of 225 affordable residential apartment housing units in compliance with California Government Code Section 65915(1) required for the proposed development of Tustin Legacy Disposition Package 1A- North. Ogdon Gave a presentation of the item. Planning Commission questions generally included: clarification on the exchange of affordable versus market -rate units from The Irvine Company to St. Anton; the provision for compact parking spaces in the MCAS Tustin Specific Plan; discrepancy with the setback requirement; whether the increase in housing creates the need for a revaluation of the EIR; requirements for affordable housing; number of incentives and concessions being proposed; parking managementlimplementation plans; cost limitation on the proposed park; master association fees; necessity of the completion of the Tustin Ranch Road extension; clarity of the surrounding land uses planned for the future; parks private or public; and whether or not gated communities are allowed within the MCAS Tustin Specific Plan. The public hearing opened at 11:03 p.m. Steve Eggert stepped forward representing St. Anton Partners. Mr. Eggert gave a brief presentation of the project proposal and stated what a positive addition it would be to the City of Tustin. Minutes — Planning Commission October 9, 2012 — Page 7 of 11 The public hearing closed at 11:11 p.m. The Planning Commission entered discussion of the item. Altowaiji Stated his design - related questions were answered by Mr. Eggert. Eckman Had no additional comments at this point. Thompson Loves the project and the amenities. Approves of the design. Would like to move the approval of the item. Kozak Stated his concerns were adequately addressed by the applicant. Supports the transfer of affordable units as well as the project design. Would recommend approval of the project to the City Council. Moore Requested clarification on the development agreement. Motion: It was moved by Thompson, seconded by Altowaiji, to adopt Resolution No. 4205 recommending approval to the City Council. Motion carried 5 -0. Adopted Resolution 5. DEVELOPMENT AGREEMENT (DA) 2012 -001, DESIGN No. 4206 recommending REVIEW (DR) 2012 -004, CONCEPT PLAN (CP) 2012 - approval to the City Council 002, DENSITY TRANSFER, DENSITY BONUS, CONCESSIONS OR INCENTIVES AUTHORIZED UNDER TUSTIN CITY CODE SECTION 9123 RELATED TO THE PROVISION OF AFFORDABLE HOUSING UNITS IN COMPLIANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65915(1), AND PARCEL MAP (PM) 2012 -136. The request is for DA 2012 -001, CP 2012 -002, DR 2012- 004, Density Transfer, Density Bonus, concessions or incentives authorized under Tustin City Code Section 9123 related to the provision of affordable housing units in compliance with California Government Code Section 65915(1), and PM 2012 -136, required for proposed development of Tustin Legacy Disposition Package 2A which includes 37 moderate income units and 496 market rate units for a total of 533 residential apartment units. APPLICANT: The Irvine Company, LLC 550 Newport Center Drive Newport Beach, CA 92660 Minutes — Planning Commission October 9, 2012 — Page 8 of 11 J PROPERTY OWNER: City of Tustin PROJECT LOCATION: ENVIRONMENTAL: Tustin Legacy Disposition Package 2A bounded by future Warner Avenue on the north, future Park Avenue on the south, and existing Tustin Ranch Road on the east. The Program Final Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the reuse and disposal of MCAS Tustin along with its supplemental and addendum considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin. An environmental checklist was prepared for the proposed project that concluded no additional environmental impacts would occur from approval of the project. RECOMMENDATION: That the Planning Commission adopt Resolution No.4206 recommending that the Tustin City Council approve Development Agreement (DA) 2012 -001, Concept Plan (CP) 2012 -002, Design Review (DR) 2012 -004, Density Transfer, Density Bonus, Concessions or Incentives authorized under Tustin City Code Section 9123 related to the provision of affordable housing units in compliance with California Government Code Section 65915(1), and Parcel Map (PM) 2012 -136, required for the proposed development of 533 apartment units (including 37 affordable units) at Tustin Legacy Disposition Package 2A. Ogdon Gave a presentation of the item. Planning Commission questions generally included: affordable or moderate - income housing in the development; open -space requirements; and building height limitations. The public hearing opened at 11:42 p.m. Bryan Austin spoke representing The Irvine Company. Mr. Austin provided a brief presentation on the project proposal. Stated The Irvine Company is excited to be part of Tustin Legacy. Minutes — Planning Commission October 9, 2012 — Page 9 of 11 The public hearing closed at 11:50 p.m. The Planning Commission entered discussion of the item. Altowaiji Stated this is a great project proposal similar to St. Anton's and would support staffs recommendation of approval. Moore Stated he understood staffs clarification of the open -space element. Eckman Stated it is a great project and that he supports it. Thompson Would move forward with approval of the project. His questions were addressed. Kozak Echoed his fellow Commissioner's comments. Stated the St. Anton and The Irvine Company projects will complement each other well. Motion: It was moved by Kozak, seconded by Thompson, to adopt Resolution No. 4206 recommending approval to City Council. Motion carried 4 -1. Commissioner Moore abstained. None REGULAR BUSINESS: None STAFF CONCERNS: COMMISSION CONCERNS: Eckman Attended Tustin Tiller Days in which the Parks and Recreation Department did a wonderful job of coordinating. Hoped many nonprofit organizations benefited that day. Altowaiji Thanked City Council for his appointment as Planning Commissioner. Stated he looks forward to working with his fellow Commissioners to accomplish the goals of the City. Moore Welcomed Commissioner Altowaiji; Requested an update on recent project approvals in Old Town, and the congregate care facility on Red Hill. Thompson Stated Tiller Days was well -done once again; • Congratulated Commissioner Altowaiji on his appointment; • Requested to be kept updated on projects /development agreements for disposition packages within Tustin Legacy. Minutes —Planning Commission October 9, 2012— Page 10 of 11 0 LIU Kozak Thanked staff for their hard work this evening; • Congratulated the Parks and Recreation Department on a successful Tustin Tiller Days event; • Participated in a recent CEQA webinar; • Stated City Council approved the Red Hill Lutheran project and denied the appeal of the Goodwill Industries Project, thus approving it as well; • Welcomed Commissioner Altowaiji and stated it was good to have him on board. 11:58 p.m. ADJOURNMENT: The next regular meeting of the Planning Commission is scheduled for Tuesday, October 23, 2012, at 7:00 p.m. in the City Council Chamber at 300 Centennial Way. k4;cola- /STEVE-%KOZAK Chairperson ELIZABETH A. BINSACK Planning Commission Secretary Minutes — Planning Commission October 9, 2012 — Page 11 of 11