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HomeMy WebLinkAbout02 House of Ruth PC Report DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 0 ITEM #2 AGENDA REPORT MEETING DATE: FEBRUARY 9, 2021 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: GENERAL PLAN CONFORMITY 2021-0001; DEVELOPMENT AGREEMENT 2020-0002; AND DESIGN REVIEW 2020-0011 APPLICANT: FAMILY PROMISE OF ORANGE COUNTY (FPOC) ATTN: CYNDEE ALBERTSON 310 WEST BROADWAY AVENUE ANAHEIM, CA 92805 PROPERTY OWNER: CITY OF TUSTIN 300 CENTENNIAL WAY TUSTIN, CA 92780 LOCATION: 1941 EL CAMINO REAL GENERAL PLAN: HIGH DENSITY RESIDENTIAL (HDR) ZONING: SUBURBAN RESIDENTIAL DISTRICT (R4) EXISTING LAND USE: VACANT SITE ENVIRONMENTAL: THIS PROJECT IS CATEGORICALLY EXEMPT PURSUANT TO SECTION 15332 (CLASS 32) OF TITLE 14, CHAPTER 3 OF THE CALIFORNIA CODE OF REGULATIONS (GUIDELINES FOR THE CALIFORNIA ENVIRONMENTAL QUALITY ACT) PERTAINING TO IN- FILL DEVELOPMENT. IF S : Amfil DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 Planning Commission Report February 9, 2021 Family Promise of Orange County Page 2 REQUESTS: 1. GENERAL PLAN CONFORMITY (GPC) 2021-0001 TO DETERMINE THAT THE LOCATION, PURPOSE, AND EXTENT OF THE PROPOSED DISPOSITION OF AN APPROXIMATE 16,790 SQUARE-FOOT LOT (0.385 ACRE) FOR THE DEVELOPMENT OF A SEVEN (7) UNIT MULTI-FAMILY APARTMENT-STYLE BUILDING FOR SHORT TERM TRANSITIONAL HOUSING AND SERVICES FOR QUALIFIED FAMILIES WITH CHILDREN EXPERIENCING HOMELESSNESS OR AT RISK OF HOMELESSNESS. 2. DEVELOPMENT AGREEMENT (DA) 2020-0002 TO FACILITATE THE DEVELOPMENT AND CONVEYANCE OF AN APPROXIMATE 16,790 SQUARE FOOT (0.385 ACRE) SITE. 3. DESIGN REVIEW (DR) 2020-0011 FOR THE BUILDING DESIGN AND SITE LAYOUT FOR A SEVEN (7) UNIT MULTI-FAMILY APARTMENT-STYLE BUILDING FOR SHORT-TERM TRANSITIONAL HOUSING AND SERVICES FOR QUALIFIED FAMILIES WITH CHILDREN EXPERIENCING HOMELESSNESS OR AT RISK OF HOMELESSNESS, INCLUDING A RESOURCE ROOM, OFFICE, COMMON AREAS AND AMENITIES. 4. DENSITY BONUS TO AUTHORIZE TWO (2) ADDITIONAL UNITS FOR A TOTAL OF SEVEN (7) UNITS IN THE R4 ZONING DISTRICT. 5. TWO (2) DEVELOPMENT CONCESSIONS FOR A REDUCED FRONT YARD SETBACK AND WAIVER OF COVERED PARKING. RECOMMENDATION: 1. That the Planning Commission adopt Resolution 4417, for GPC 2021-0001, determining that the location, purpose, and extent of the proposed disposition of an approximate 0.385- acre site for the development of a seven (7) unit multi-family apartment-style building for short term transitional housing for qualified families with children experiencing homelessness or at risk of homelessness is in conformance with the approved General Plan. 2. That the Planning Commission adopt Resolution 4418 recommending that the City Council approve: a. DA 2020-0002 to facilitate the development and conveyance of an approximate 0.385-acre site located at 1941 EI Camino Real for the development of a seven (7) unit multi-family apartment-style building for short-term transitional housing for qualified families with children experiencing homelessness or at risk of homelessness. b. DR 2020-0011 for the building design and site layout of a seven (7) unit multi- family apartment-style building for short-term transitional housing for qualified DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 Planning Commission Report February 9, 2021 Family Promise of Orange County Page 3 families with children experiencing homelessness or at risk of homelessness, a density bonus to authorize two (2) additional units for a total of seven (7) units in the R4 zoning district and development concessions for a reduced front yard setback and waiver of covered parking. APPROVAL AUTHORITY: • General Plan Conformity: Pursuant to Section 65402(a) of the Government Code, the Planning Commission is authorized to determine whether the location, purpose, and extent of the proposed disposition of real property is consistent with the General Plan. • Development Agreement: A Development Agreement (DA) is required to identify the terms of development and affordability, required services and amenities. Pursuant to Tustin City Code (TCC) Section 9607, the Planning Commission shall consider the DA and make a recommendation thereon to the City Council. The Planning Commission shall forward its recommendation to the City Council within thirty (30) days of the time specified for the public hearing. Pursuant to TCC Section 9613, after the City Council completes the public hearing and considers the recommendation of the Planning Commission, the City Council may accept, modify or disapprove the DA. Pursuant to TCC Section 9614, the DA shall be approved by the adoption of an ordinance. • Design Review: TCC Section 9272 authorizes the Community Development Director to consider the DR application; however, since the proposal includes other entitlement applications that require the Planning Commission to make a recommendation to the City Council, DR 2020-0011 is forwarded to the Planning Commission for concurrent consideration for building design and site layout. BACKGROUND AND DISCUSSION: Site Location The 16,790 square-foot (0.385-acre) project site is located at 1941 EI Camino Real and is currently a vacant, unpaved lot. The site is approximately 138 feet west of Browning Avenue (Figure 1) and northeast of EI Camino Real and the 1-5 Freeway. Surrounding properties are zoned Suburban Residential (R4) and uses include single-family residences and multi-family residences. The site is currently owned by the City and will be transferred to FPOC upon City Council approval of the DA and meeting the terms of the Disposition and Development Agreement (DDA) approved by the City Council on February 18, 2020. DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 Planning Commission Report February 9, 2021 Family Promise of Orange County Page 4 '•. try ,1 f.' r 1 IN by �" Project ' Site /s ✓ ax ~oe Fico 4 Figure 1 —Project Site Aerial General Plan Conformity The City entered into a real estate transaction with FPOC in February 2020 to allow for the development of a multi-family apartment-style building containing seven (7)residential units for short- term transitional housing for families with children experiencing homelessness or those at risk of homelessness, an on-site community resource center, outdoor play area for children, exterior courtyard, and other amenities. Pursuant to Section 65402(c) of the California Government Code (Planning and Development Law), a GPC determination from the local planning agency is required prior to acquisition or disposition of real property by a local agency. The proposed disposition supports the following General Plan Land Use Element goals and policies: 1. Housing Element (HE), Goal 1: Provide an adequate supply of housing to meet the need for a variety of housing types and the diverse socio-economic needs of all community residents. 2. HE Policy 1.1: Promote the construction of additional dwelling units to accommodate Tustin's share of regional housing needs identified by the Southern California Association of Governments (SCAG), in accordance with adopted land use policies. 3. HE Policy 1.2: Pursue smart growth principles by supporting the construction of higher density housing, affordable, and mixed-use development (the vertical and horizontal integration of commercial and residential uses) in proximity to transit, services, shopping, schools, and senior centers and recreational facilities, where possible. DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 Planning Commission Report February 9, 2021 Family Promise of Orange County Page 5 4. HE Policy 1.3: Continue to implement best practices for developer selection, project underwriting and due diligence for affordable housing developments that receive financial and other assistance to ensure long-term viability of affordable housing and to ensure the maximized leverage of local resources. 5. HE Policy 1.7: Utilize various resources, where feasible, to assist in creating opportunities which will expand opportunities for development of affordable housing in the community. 6. HE Policy 1.11: Encourage the availability of affordable housing for special needs households, including large, low-income families. Special needs households include elderly, large families, female-headed households with children, households with a disabled person, and the homeless. Based upon the City's adopted General Plan, the location, purpose, and extent of the proposed disposition of the project site to FPOC for the development of a multi-family apartment-style project for qualified families with children experiencing homelessness or at risk of homelessness consisting of seven (7) apartment units and associated amenities are in conformance with the approved General Plan. Project Description DA 2020-0002 and DR 2020-0011 are applications associated with the development of a 7,681 square-foot multi-family residential project consisting of seven (7) residential units for short-term transitional housing for families with children experiencing homelessness or at-risk of homelessness. The applicant, FPOC, has served families experiencing homelessness since 2009. FPOC's mission is to help families experiencing homelessness achieve housing stability by providing the following services: o Weekly case management o Individual and family therapy o Budgeting o Credit repair o Supplement food and supplies o Workforce development o Referral to resources o Financial literacy Transitional housing provides temporary housing for those who are experiencing homelessness or those who are at risk of homelessness; and is housing that is designed for non-transient living (residency longer than thirty (30) days). Preference for residing at the project would be given to families with defined ties and connections to the City of Tustin. The proposed short-term transitional housing facility would not be an emergency shelter and would only be available to qualified families, which would preclude the project from being used as an emergency shelter for those experiencing homelessness. The project would be deed restricted to serve as housing for low-income families for at least fifty-five (55) years starting from the date of Certificate of Occupancy issuance by the Community Development Department. The project would also be subject to a Housing Incentive Agreement to ensure compliance with the Disposition and Development Agreement (DDA) between the City and the Developer. DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 Planning Commission Report February 9, 2021 Family Promise of Orange County Page 6 The proposed seven (7) unit, apartment-style building is a 7,681 square-feet and has the following unit and bedroom breakdown: No. Units No. Bedrooms Two 2 Three 3 Four (4) Two (2) One 1 One 1 Total: 7 units The proposed on-site Community Resource Center would support local families seven (7) days per week. The Community Resource Center will be staffed with a full-time Housing Navigator and a full-time Case Manager, with additional support by seven (7) to ten (10) Human Service interns. To be eligible for services, the family must have at least one (1) minor child, have a defined relationship with the City of Tustin, pay a program fee and be required to place disposable income into a savings account. The project is expected to provide transitional housing for thirty (30) families per year. An additional twenty (20) non-resident families would also be served per month with a wide range of support services and programs via the on-site community resource center. The community resources programs include: career development, case management, education, budgeting and credit repair, which are intended to mitigate long-term homelessness in the City and reduce stress on City and community resources. Courtyard Tot Lot h' l I:. EL CAMINO REAL Building Figure 2 Entry/Parking DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 Planning Commission Report February 9, 2021 Family Promise of Orange County Page 7 Density Bonus and Development Standard Concessions The project site is zoned R4 wherein multi-family dwellings and apartment houses are permitted uses (TCC 9228a5d). Under the zoning district regulations, the maximum allowable number of units is based on the size of the lot and the square footage of lot area per unit, as shown in Table 1 below: Min. Lot Size/ Min. Lot Area Allowable Units 7,200 sq. ft./3000 sq. ft. Proposed Project 16,790 sq. ft./3,000 sq. ft. 5.60 units With Density Bonus 16,790 sq. ft./2,398 sq. ft. 7 units Table 1 The applicant is requesting, and is eligible for, a density bonus of thirty-five percent (35%) which brings the total allowable number of units to seven (7). All seven (7) units would serve low-income families. Based on the TCC and as shown in Table 1 above, without a density bonus, a maximum of five (5) units would be allowed on the site. TCC Section 9111, et seq., in accordance with California law pertaining to density bonuses, provides incentives for additional housing units associated with the production of housing for very low, low, moderate-income and homeless persons. The intent of the density bonus law is to facilitate the development of affordable housing and to implement the goals, objectives and policies of the City's Housing Element. The State Density Bonus Law (California Government Code, Section 65915; TCC Section 9121) applies to this project because it provides housing for extremely low, very low and low-income families. In addition to a density bonus, the applicant may submit a proposal for specific concessions or incentives. The applicant has requested two (2) concessions (which can be a reduction in site development standards or a modification of zoning code requirements or architectural requirements) pursuant to TCC Section 9123. TCC Section 9123 states: "[an] applicant for a density bonus may submit to the City a proposal for specific concession(s) or incentive(s) that the applicant requests pursuant to [Section 9123]... The City must grant the concession(s) or incentive(s) requested by the applicant unless the City finds that the concession does not result in identifiable and actual cost reductions, the concession(s) or incentive(s) would have a specific adverse impact on public health or safety or the physical environment... or the concession would be contrary to state or federal law." The development standard deviation requested in the first concession is for a reduced front yard setback pursuant to TCC Section 9123(b), which would reduce the required setback of twenty (20) feet to ten (10) feet. This setback reduction allows for an expanded building footprint to provide adequate space for the seven (7) units, a community resource center, a courtyard and a tot lot. The setback concession requested will allow for more efficient and usable housing units than could otherwise be achieved. The proposed landscaped parking lot for the project would provide a 125 foot separation from the nearest residence to the east. The block of EI Camino Real, between Browning Avenue to Redhill Avenue, has a variety of front yard setbacks ranging from twelve (12) feet to twenty (20) feet. In this setting, the proposed reduced setback would not be incompatible with adjacent properties and would not interrupt an established pattern of development along EI Camino Real. DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 Planning Commission Report February 9, 2021 Family Promise of Orange County Page 8 The second concession is a request for a waiver of covered parking. TCC Section 9263 provides that multi-family housing shall be parked at a minimum of two(2)covered spaces for each dwelling unit, plus one (1) unassigned guest space for every four (4) units. Although the required number of parking spaces will be provided, the applicant indicates that the provision of covered parking (versus uncovered parking) is an added cost, that most of the residents would have no more than one (1)vehicle and it is likely that over half of the spaces would be unused. In addition, uncovered parking would allow for greater visibility on the site contributing to improved safety measures at the facility and would also provide parking for larger vehicles such as those used by Schools on Wheels and or other service providers. Under TCC Section 9131, the project would require a total of fourteen (14) covered parking spaces. The applicant proposes fourteen (14) open uncovered parking spaces. Design Review The block of EI Camino Real, between Red Hill Avenue and Browning Avenue, contains a mixture of residential uses including single-family homes, smaller and larger apartment complexes, and commercial uses, most of which are two (2) stories in height. Single-family homes to the east and north of the site are primarily one-story in height. The proposed building would be setback thirteen (13) from the rear property line. The project site would be bounded on the northeast, northwest and southeast by a six (6) foot high masonry wall. The proposed building is two (2) stories in height and is designed in a Spanish style. Architectural details have been incorporated to enhance the building's form and appearance. Design features include low profile "S" roof tiles, fine stucco facade, decorative accent tile, recessed windows with plant shelves, wood framing, shuttered and/or tiled surrounds, and wall step backs that work together to present a Spanish feel to this residential project. The applicant proposes to use a complementary building color palette, including rich browns, shades of grey-green and white stucco to contribute to the Spanish style structure. 0 Street View DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 Planning Commission Report February 9, 2021 Family Promise of Orange County Page 9 mail. 11 • ILII _ _.- t M__ { '/.•. Rear View dW $ a . r Entry View Proposed Materials The first floor of the building would include the community resource center, office, laundry center and three (3) residential units (two 2-bedroom units and one 3-bedroom unit) and the second floor would have four (4) residential units (one 1-bedroom unit, two 2-bedroom units and one 3- bedroom unit). All units include a kitchen, two (2) bathrooms, and a great room (Attachment B). The project site would include a 417 square-foot courtyard which includes a barbecue, game tables, festival lights, donor bricks and/or donor wall, citrus trees and garden boxes. A tot lot of approximately 635 square feet would include a playground, synthetic turf, shade, toy chest and bench(es), and would be enclosed with a 42-inch height fence for safety and visibility. The project includes 3,486 square feet of landscaped area. The proposed landscaping includes forty-one (41) trees that would provide color, shade and screening for the residential uses to the northwest and northeast. Additionally, citrus trees would be interspersed around the courtyard and would provide fresh fruit for use by the residents. Shrubs and ground cover would be water efficient and provide color, texture and screening for the trash enclosure and above-ground utilities. Outdoor lighting is proposed in the parking lot, at building entries, in the courtyard with festival lighting, and with pathway lighting throughout the site. The outdoor lighting concept is designed to provide levels of lighting sufficient to meet safety and orientation needs. Parking lot lighting consists of four (4) twelve (12)-foot poles and will be warm colored and unobtrusive with L.E.D. bulbs and automatic cutoff. Forty-two (42) inch bollard lighting is proposed on the community walkways and will be concealed and not visible from public view. Building entrances will also be lit by fixtures attached to the entries. All lighting will be complementary to the architectural theme. At plan check, the applicant will be required to submit a photometric plan to ensure that lighting remains within the property lines (Figure 3). DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 Planning Commission Report February 9, 2021 Family Promise of Orange County Page 10 a EL CAMINO REAL Figure 3 Development Agreement 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 in 1979 (Gov. Code Section 65864 et seq.). Pursuant to the Statute, the City may enter into an agreement with any person having a legal or equitable interest in real property to provide for the development of such property and to establish certain development rights therein. DA 2020-0002, included herewith as Attachment C, will provide for the orderly implementation of the General Plan, the transfer of the site to the operator, project development and completion in accordance with the Disposition and Development Agreement for Short-Term Transitional Housing (DDA), and certain assurances to the Developer and the City. These assurances require the cooperation and participation of the City and Developer and could not be secured without mutual cooperation in, and commitment to, the comprehensive planning effort that has resulted in the DA. The DA will include, but not be limited to, the following provisions: • The term of the DA. • Public benefits. • The timing of development as set forth in the DDA. • Construction of infrastructure and public facilities. • Annual review of Developer's performance, etc. DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 Planning Commission Report February 9, 2021 Family Promise of Orange County Page 11 Public benefits specifically identified in the DA include the following: • Providing a safe and stable housing environment for short-term transitional housing for those experiencing homelessness or at risk of homelessness by building a new 7,681 square foot apartment-style multi-unit housing complex as described above. • The project would only be accessible to certain qualified families, which shall exclude the project from being used as an emergency shelter for those experiencing homelessness. • Preference for residing at the project would be given to families with children and defined ties and connections to the City of Tustin. • Affordability and other restrictions, qualifications and operations are imposed by the DDA and Housing Incentive Agreement for at least 55-years starting from the date of issuance of the Certificate of Occupancy. Pursuant to TCC Section 9607, the Planning Commission shall consider the DA and make a recommendation thereon to the City Council. The Planning Commission shall forward its recommendation to the City Council within thirty (30) days of the time specified for the public hearing. In considering whether to recommend approval, the Planning Commission should consider whether the DA is: (a) consistent with the objectives, policies, general land uses and programs specified in the General Plan; (b) compatible with the uses authorized in the district in which the real property is located; (c) in conformity with the public necessity, public convenience, general welfare and good land us practices and is in the vital and best interests of the City and its residents; (d) will be detrimental to the health, safety and general welfare; (e) will adversely affect the orderly development of property; and (f) will have a positive fiscal impact on the City. Environmental Review This project is categorically exempt pursuant to Section 15332 (Class 32) of the California Environmental Quality Act in that the subject project is consistent with the General Plan and Zoning designations and applicable General Plan policies; the development occurs within city limits on a project site of no more than five (5) acres substantially surrounded by urban uses; the project site has no value as habitat for endangered, rare or threatened species; the project would not result in any significant effects relating to traffic, noise, air quality, or water quality; and the site can be adequately served by all utilities and public services. CONCLUSION The proposed GPC 2021-0001, DA 2020-0002 and DR 2020-0011, and the Density Bonus are consistent with the objectives, policies, and general land uses of the General Plan and the TCC, will provide public benefits as identified in the DA, and will not impair the orderly and harmonious development of the area, the present or future development therein, or the occupancy as a whole. Accordingly, staff recommends that the Planning Commission approve GPC 2021-0001 and recommend to the City Council approval of DA 2020-0002 and DR 2020-0011. DocuSign Envelope ID: DA85D14E-444A-41 FA-A334-365031795FE3 Planning Commission Report February 9, 2021 Family Promise of Orange County Page 12 EDocu Signed by: DocuSigned by: aiin t, No- � a Ch ln�i Q Q Jc e w� 15DF594829AC4A0... ED45DA2623B54A5... Elaine Dove, AICP, RLA Justina L. Willkom Senior Planner Community Development Director Attachments: A. Radius Map & Land Use Application Fact Sheet B. Submitted Plans C. Planning Commission Resolution No. 4417— General Plan Conformity D. Planning Commission Resolution No. 4418— DA 2020-0002 and DR 2020-0011 • Exhibit A: Draft Ordinance 1512 and Development Agreement • Exhibit B: Proposed Conditions of Approval ATTACHMENT A RADIUS MAP & LAND USE APPLICATION FACT SHEET 300 foot, 500 foot, and 1,000 foot Radius Map i x, s 1,000 foot 500 foot 300 foot ,I. 7 l v� 3 f4 , .4J l c ?]II l` r Location Map 1941 EI Camino Real Project # GPC-2021-0001/DR-2020-0011/DA 2020-0002 LAND USE APPLICATION FACT SHEET 1. LAND USE APPLICATION NUMBER(S): DESIGN REVIEW (DR) 2020-0011; DEVELOPMENT AGREEMENT (DA) 2020-0002 2. LOCATION: EL CAMINO REAL BETWEEN BROWNING AVENUE AND TUSTIN EAST DRIVE. 3. ADDRESS: 1941 EL CAMINO REAL 4. APN: 500-071-12 5. PREVIOUS OR CONCURRENT APPLICATIONS RELATING TO THIS PROPERTY: DISPOSITION AND DEVELOPMENT AGREEMENT WITH FAMILY PROMISE OF ORANGE COUNTY 6. SURROUNDING LAND USES: NORTHWEST: RESIDENTIAL SOUTHEAST: RESIDENTIAL NORTHEAST: RESIDENTIAL SOUTHWEST: 1-5 FREEWAY 7. SURROUNDING ZONING DESIGNATION: NORTHWEST: SUBURBAN RESIDENTIAL (R4) SOUTHEAST: SUBURBAN RESIDENTIAL (R4) NORTHEAST: SINGLE-FAMILY RESIDENTIAL SOUTHWEST: N/A (1-5 FREEWAY) 8. SURROUNDING GENERAL PLAN DESIGNATION: NORTHWEST: HIGH DENSITY RESIDENTIAL SOUTHWEST: N/A (FREEWAY) NORTHEAST: HIGH DENSITY RESIDENTIAL SOUTHEAST: HIGH DENSITY RESIDENTIAL 9.SITE LAND USE: A. EXISTING: VACANT LAND PROPOSED: MULTI-FAMILY B. GENERAL PLAN: HIGH DENSITY RESIDENTIAL PROPOSED: SAME C. ZONING: R4 PROPOSED: SAME DEVELOPMENT FACTS: 10. LOT AREA: 16,720 S.F. 0.385 ACRES 11. BUILDING LOT COVERAGE: N/A REQUIRED 24% PROPOSED 12. SITE LANDSCAPING: N/A REQUIRED 20.8% PROPOSED 13. PARKING: TOTAL: 14 REQUIRED (COVERED) 14 PROPOSED (CONCESSION REQUESTED FOR UNCOVERED PARKING) 14. BUILDING HEIGHT: 2 STORIES OR 27'-9" PROPOSED 35 FEET 15. 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(n_5 / E) n . . �a2 �z ATTACHMENT C PLANNING COMMISSION RESOLUTION NO. 4417 GENERAL PLAN CONFORMITY RESOLUTION NO. 4417 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN DETERMINING THAT THE LOCATION, PURPOSE, AND EXTENT OF THE PROPOSED DISPOSITION OF 1941 EL CAMINO REAL, DESIGNATED AS ASSESSOR'S PARCEL NUMBER 500-071-12, CONSISTING OF 16,790 SQUARE FEET (0.385 ACRES) FOR THE DEVELOPMENT OF A SEVEN (7)-UNIT MULTI-FAMILY BUILDING FOR SHORT-TERM TRANSITIONAL HOUSING AND SERVICES FOR QUALIFIED FAMILIES WITH CHILDREN EXPERIENCING HOMELESSNESS OR AT RISK OF HOMELESSNESS, IS IN CONFORMANCE WITH THE APPROVED GENERAL PLAN. The Planning Commission does hereby resolve as follows: I. The Planning Commission finds and determines as follows: A. That a proper application has been submitted by Family Promise of Orange County for the development of a seven (7) unit multi-family building for short-term transitional housing and services for qualified families with children experiencing homelessness or at risk of homelessness on an approximately 0.385 acre site currently owned by the City of Tustin. B. That Section 65402(a) of the Government Code provides that no real property shall be disposed until the location, purpose, and extent of the project has been reported upon by the local planning agency as to the conformity with the adopted general plan. C. That the City wishes to dispose of the lot to accommodate the development of seven (7) residential units, a community resource room, office, common areas and other amenities. D. The proposed disposition supports several General Plan Land Use Element goals, including the following: 1 . Land Use Element Goal 1 : Provide for a well-balanced land use pattern that accommodates existing and future needs for housing, commercial, and industrial land, open space and community facilities and services, while maintaining a healthy, diversified economy adequate to provide future City services. 2. Housing Element (HE) Policy 1 .1 : Promote the construction of additional dwelling units to accommodate Tustin's share of regional housing needs identified by the Southern California Association of Governments (SCAG), in accordance with adopted land use policies. Resolution No. 4417 Page 2 3. HE Policy 1 .2: Pursue smart growth principles by supporting the construction of higher density housing, affordable, and mixed-use development (the vertical and horizontal integration of commercial and residential uses) in proximity to transit, services, shopping, schools, and senior centers and recreational facilities, where possible. 4. HE Policy 1 .3: Continue to implement best practices for developer selection, project underwriting and due diligence for affordable housing developments that receive financial and other assistance to ensure long-term viability of affordable housing and to ensure the maximized leverage of local resources. 5. HE Policy 1 .7: Utilize various resources, where feasible, to assist in creating opportunities which will expand opportunities for development of affordable housing in the community. 6. HE Policy 1 .11 : Encourage the availability of affordable housing for special needs households, including large, low-income families. Special needs households include elderly, large families, female- headed households with children, households with a disabled person, and the homeless. E. That Section 65402 (a) of the Government Code authorizes the Planning Commission to determine whether the location, purpose, and extent of the proposed disposition of real property is consistent with the General Plan. F. That the general plan conformity determinations required by Government Code Section 65402(a) are not "projects" requiring environmental review pursuant to the California Environmental Quality Act. II. The Planning Commission hereby determines that the location, purpose, and extent of the disposition of 1941 EI Camino Real (APN 500-071-12) for the development of a seven (7) unit multi-family building for short-term transitional housing and services for qualified families with children experiencing homelessness or at risk of homelessness is in conformance with the approved General Plan. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting held on the 9th day of February, 2021. AMY MASON Chairperson JUSTINA L. WILLKOM Planning Commission Secretary Resolution No. 4417 Page 3 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, JUSTINA L. WILLKOM, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4417 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 9th day of February, 2021. PLANNING COMMISSIONER AYES: PLANNING COMMISSIONER NOES: PLANNING COMMISSIONER ABSTAINED: PLANNING COMMISSIONER ABSENT: JUSTINA L. WILLKOM Planning Commission Secretary ATTACHMENT D PLANNING COMMISSION RESOLUTION NO. 4418 DA 2020-0002 & DR 2020-0011 • EXHIBIT A: DRAFT ORDINANCE 1512 & DEVELOPMENT AGREEMENT • EXHIBIT B: PROPOSED CONDITIONS OF APPROVAL RESOLUTION NO. 4418 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE TUSTIN CITY COUNCIL APPROVE DEVELOPMENT AGREEMENT 2020- 0002,DESIGN REVIEW 2020-0011, AND DENSITY BONUS ALONG WITH ITS CONCESSIONS FOR THE DEVELOPMENT OF A SEVEN (7) UNIT MULTI-FAMILY BUILDING FOR SHORT TERM TRANSITIONAL HOUSING AND SERVICES FOR QUALIFIED FAMILIES WITH CHILDREN EXPERIENCING HOMELESSNESS OR AT RISK OF HOMELESSNESS LOCATED AT 1941 EL CAMINO REAL (APN 500-071-12) The Planning Commission of the City of Tustin does hereby resolve as follows: I. The Planning Commission finds and determines as follows: A. That a proper application has been submitted by Family Promise of Orange County (FPOC) for the development of a seven (7) unit multi-family building for short term transitional housing for qualified families with children and conveyance of an approximate 0.385-acre site located at 1941 EI Camino Real that is currently owned by the City of Tustin (the City). B. That the development application includes the following requests: 1. Development Agreement (DA) 2020-0002 to facilitate the development and conveyance of an approximate 0.385-acre site within the boundaries of the City of Tustin. 2. Design Review (DR) 2020-0011 for the building design and site layout of multi-family apartment style building including seven (7) units within a single building, community resource room, office, common areas and amenities. 3. Density bonus to authorize two (2) additional units for a total of seven (7) units in the R4 Zoning District. 4. Two (2) development concessions for a reduced front yard setback and waiver to allow uncovered parking. C. That the site is zoned as Suburban Residential District (R4); and designated as High Density Residential (HDR) by the Tustin General Plan. In addition, the project has been reviewed for consistency with the Air Quality goals and objectives described in the General Plan. D. That a DA is required to identify the terms of development, affordability, required services, and amenities in accordance with Section 65864 et seq. of Resolution No. 4418 Page 2 the Government Code and Sections 9600 to 9619 of the Tustin City Code (TCC). In compliance with TCC Section 9611, the City's Planning Commission must make a recommendation on the proposed DA to the City Council. The DA can be supported by the following findings: 1. The project is consistent with the objectives, policies, land uses and programs specified in the General Plan and the Zoning Code in that multi- family residential uses are permitted uses within the High Density Residential land use designation and the project promotes citywide goals and policies of addressing homelessness and creating affordable and workforce housing options 2. The project is in conformity with the public necessity, public convenience, general welfare, and good land use practices in that the project would provide a seven (7) unit residential building for short-term transitional housing and services for qualified families with children with preference given to those with ties to Tustin. The City will contribute the site for development under the terms of the Disposition and Development Agreement. 3. That homelessness in Orange County is on the rise which is often due to the high cost of housing in the County. Residents in the community have been and will continue to be directly impacted by issues created by a growing homeless population. For the health, safety and welfare of the community, the City continually seeks solutions to mitigate the many and varied issued raised by homeless families and the high cost of housing in Tustin. 4. The project will not be used as an emergency shelter for the homeless. Residents are required to have regular and ongoing employment or be actively seeking employment. 5. Each family will pay into a program fee and will be required to place disposable income into a savings account. 6. The operator will provide case management, computer and internet services, counseling, financial literacy, educational assessment, and life skills classes to participant families. 7. The project is in the vital and bests interests of the City and the health, safety and welfare of its residents. 8. The project will not adversely affect the orderly development of property in that the proposed project is orderly, well designed, and equipped with necessary infrastructure and amenities to support future residents. Resolution No. 4418 Page 3 9. The project will have a positive impact on the City in that the provisions of the proposed DA and conditions of approval will ensure such positive impact. E. Density Bonus and Concessions 1. That Government Code Section 65925 mandates that local governments provide a density bonus when a developer agrees to construct ten (10) percent of the total units within the project for lower income households, five (5) percent of the total units for very low income households, or ten (10) percent for moderate income families. 2. That the applicant proposes to construct seven (7) one hundred percent (100%) affordable units. 3. That the density bonus will increase the number of families served and contribute to the City's goal of reducing the number of families experiencing homelessness or at risk of homelessness by providing two additional units at the project 4. The concessions and/or waivers are required in order to improve the project by reducing overall costs of the project and providing amenities and resources to families experiencing homeless or at risk of homelessness: • Front Yard Setback: Authorization to reduce the front yard setback from twenty (20) feet to ten (10) feet to allow the expansion of the building footprint to provide adequate space for seven residential units, a community resource center, courtyard and tot lot. • Waiver of Covered Parking: Authorization to remove the requirement for covered parking to reduce the cost of the project, allow greater visibility into the site contributing to improved safety measures, and provide parking for larger vehicles used by service providers. 5. That pursuant to TCC 9124(m), the City may, in its discretion, reduce or eliminate a parking requirement for developments of any type in any location. 6. The applicant has shown that the waiver of modification of development standards is necessary to make the housing units economically feasible. 7. The density bonus, concession or incentive would not have an adverse impact upon public health and safety or the physical environment. Resolution No. 4418 Page 4 F. Pursuant to Section 9272 of the TCC, the Planning Commission finds that the location, size, architectural features, and general appearance of the proposed development will not impair the orderly and harmonious development of the area, the present or future development therein, or the occupancy as a whole. In making such findings, the Commission has considered at least the following items: 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. Roof structures, 7. Location, height, and standards of exterior illumination. 8. Landscaping, parking area design, and traffic circulation. 9. Location and appearance of equipment located outside 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. Development Guidelines and criteria as adopted by the City Council. G. That a public hearing was duly called, noticed, and held on said application on February 9, 2021, by the Planning Commission. H. That the project is Categorically Exempt pursuant to Section 15332 (Class 32) of the California Code of Regulations (Guidelines for the California Environmental Quality Act). II. The Planning Commission hereby recommends that the City Council approve DA 2020-0002 attached hereto as Exhibit A and DR 2020-0011, subject to the conditions attached hereto as Exhibit B. Resolution No. 4418 Page 5 PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 9th day of February, 2021. AMY MASON Chairperson JUSTINA L. WILLKOM Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, Justina L. Willkom the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4418 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 9th day of February, 2021. JUSTINA L. WILLKOM Planning Commission Secretary Exhibit A Draft Ordinance 1512 and Development Agreement i ORDINANCE NO. 1512 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING DEVELOPMENT AGREEMENT (DA) 2020- 0002 BETWEEN THE CITY OF TUSTIN AND FAMILY PROMISE OF ORANGE COUNTY, INC., TO FACILITATE THE DISPOSITION OF PROPERTY AND FOR THE DEVELOPMENT OF A SEVEN (7) UNIT MULTI-FAMLY BUILDING FOR SHORT-TERM TRANSITIONAL HOUSING FOR QUALIFIED FAMILIES WITH CHILDREN EXPERIENCING HOMELESSNESS OR AT RISK OF HOMELESSNESS ON AN APPROXIMATE 16,790 SQUARE FOOT (0.385 ACRE) SITE LOCATED AT 1941 EL CAMINO REAL (APN 500-071-12) The City Council of the City of Tustin does hereby ordain as follows: SECTION 1. The City Council finds and determines as follows: A. That proper application has been submitted by Family Promise of Orange County to facilitate the disposition of property located at 1941 EI Camino Real for the development of a seven (7) unit multi-family building for short- term transitional housing for qualified families with children experiencing homelessness or at risk of homelessness on an approximately 16,790 square foot (0.385 acre) site located at 1941 EI Camino Real (APN 500-071-12). B. That Section 65864 et seq. of the Government Code and Sections 9600 to 9619 of the Tustin City Code authorize the Tustin City Council to enter into a Development Agreement. 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. C. That a public hearing was duly called, noticed, and held on said application on February 9, 2021, by the Planning Commission. The Planning Commission adopted Resolution No. 4418 recommending that the City Council approve the Development Agreement. D. That the project is Categorically Exempt pursuant to Section 15332 (Class 32) of the California Code of Regulations (Guidelines for the California Environmental Quality Act). E. That the Development Agreement is supported by the following findings: 1. The project is consistent with the objectives, policies, land uses and programs specified in the General Plan and the Zoning Code in that multi- family residential uses are permitted uses within the High Density Residential land use designation and the project promotes citywide goals Ordinance 1512 Page 2 of 4 and policies of addressing homelessness and creating affordable and workforce housing options. 2. That homelessness in Orange County is on the rise which is often due to the high cost of housing in the County. Residents in the community have been and will continue to be directly impacted by issues created by a growing homeless population. For the health, safety and welfare of the community, Tustin continually seeks solutions to mitigate the many and varied issues raised by homeless families and the high cost of housing in Tustin. 3. The project will not be used as an emergency shelter for the homeless. Residents are required to have regular and ongoing employment or be actively seeking employment. 4. Each family will pay into a program fee and will be required to place disposable income into a savings account. 5. The operator will provide case management, computer and internet services, counseling, financial literacy, educational assessment, and life skills classes to participant families. 6. The project is in the vital and bests interests of the City and the health, safety and welfare of its residents. 7. The project will not adversely affect the orderly development of property in that the proposed project is orderly, well designed, and equipped with the necessary infrastructure and amenities to support future residents. 8. The project will have a positive impact on the City in that the provisions of the proposed DA and conditions of approval will ensure such positive impact. 9. That the approval of the DA will provide for an orderly development and provide public benefits. SECTION 2. The City Council hereby approves Development Agreement 2020-0002 attached hereto as Exhibit A and subject to final approval of the City Attorney. SECTION 3. 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 DA and other documents as necessary. SECTION 4. Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by Ordinance 1512 Page 3 of 4 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 declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this 2nd day of March, 2021. LETITIA CLARK Mayor ERICA N. YASUDA City Clerk APPROVED AS TO FORM: DAVID E. KENDIG City Attorney Ordinance 1512 Page 4 of 4 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) I, Erica N. Yasuda, 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 5; that the above and foregoing Ordinance No. 1512 was duly and regularly introduced at a regular meeting of the Tustin City Council, held on the 2nd day of March, 2021, and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the 16th day of March, 2021, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: ERICA N. YASUDA City Clerk Published: DEVELOPMENT AGREEMENT FOR SHORT-TERM TRANSITIONAL HOUSING BY AND BETWEEN City of Tustin / Tustin Housing Authority AND Family Promise of Orange County, Inc. Site: 1941 El Camino Real, Tustin, CA 927801 1473132.1 This DEVELOPMENT AGREEMENT FOR SHORT-TERM TRANSITIONAL HOUSING ("Agreement") is entered effective as of , 2020, by and between the CITY OF TUSTIN, a municipal corporation ("Tustin"), the TUSTIN HOUSING AUTHORITY, a local housing authority ("Authority"), and FAMILY PROMISE OF ORANGE COUNTY, INC., a California non-profit corporation ("Operator"). Tustin and Authority are collectively and individually hereinafter referred to as the "City" and the City and Operator, together, 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 Statutes," Government Code Sections 65864, et seq. The Development Agreement Statutes authorize 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. Pursuant to the authorization set forth in the Development Agreement Statutes, City has enacted procedures for entering into development agreements which are contained in Tustin City Code Sections 9600 to 9619. B. City and Operator entered into that certain Disposition and Development Agreement for Short-Term Transitional Housing as of February 18, 2020 (the "DDA")pursuant to which City agreed to sell, and Operator agreed to buy and develop, certain real property, all as more specifically set forth in the DDA. C. Pursuant to the DDA, Operator has an equitable and legal interest in the Site (as defined below)in that it has the contractual right to purchase the Site from City for development. D. Pursuant to Government Code Section 65864, the Legislature has found and determined, among other things, 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." 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 2 1485898.1 development and completion of the Project as defined by and in accordance with the DDA. This Agreement will further comprehensive planning objectives contained within the City's General Plan, which are: 1. "Provide an adequate supply of housing to meet the need for a variety of housing types and the diverse socio-economic needs of all community residents." (Housing Element("HE") Goal 1) 2. "Promote the construction of additional dwelling units to accommodate Tustin's share of regional housing needs identified by the Southern California Association of Governments (SLAG), in accordance with adopted land use policies." (HE Policy 1.1) 3. "Pursue smart growth principles by supporting the construction of higher density housing, affordable housing, and mixed-use development(the vertical and horizontal integration of commercial and residential uses) in proximity to transit, services, shopping, schools, and senior centers and recreational facilities, where possible." (HE Policy 1.2) 4. "Continue to implement best practices for developer selection, project underwriting and due diligence for affordable housing developments that receive financial and other assistance to ensure long-term viability of affordable housing and to ensure the maximized leverage of local resources." (HE Policy 1.3) 5. "Utilize various resources, where feasible, to assist in creating opportunities which will expand opportunities for development of affordable housing in the community." (HE Policy 1.7) 6. "Encourage the availability of affordable housing for special needs households, including large, low-income families. Special needs households include the elderly, large families, female-headed households with children, households with a disabled person, and the homeless." (HE Policy 1.11) E. The DDA and the development of the Project under the DDA require a substantial early investment of money and planning and design effort by Operator. 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 Operator's participation in the development of short-term housing as provided in the DDA. Operator's participation in the implementation of the DDA will result in a number of public benefits. These benefits require the cooperation and participation of City and Operator and could not be secured without cooperation in and commitment to the comprehensive planning effort that has resulted in the DDA. F. Operator wishes to avoid certain development risks and uncertainties that would, in the absence of this Agreement, deter and discourage Operator from making a commitment to implement the DDA. These are as follows: 3 1485898.1 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 public improvements as part of any project or in early comprehensive planning and design studies. 2. Development under the DDA requires a substantial early investment of money and planning and design effort by Operator. 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 Operator to offset or remove the disincentives and uncertainties set forth in Paragraph F above: 1. Assurance to Operator that, in return for Operator's commitment to the development of the Site that is contained in the DDA, any approved entitlements, City will in turn remain committed to the DDA; 2. Assurances to Operator that as Operator becomes obligated for the costs of designing and constructing any public and private improvements included in the DDA, Operator will become entitled to complete the Project; and 3. Assurances to Operator that in City's administration of the DDA, Operator will be allowed, consistent with the DDA, to develop the housing identified in the DDA. These assurances provide for cooperation and participation of City and Operator and could not be secured without mutual cooperation in and commitment to the comprehensive planning effort that has resulted in the DDA. 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 Operator to secure the Public Benefits as described in Section 3.1, and Operator wishes to enter into a development agreement with City to avoid the development risks and uncertainties and to obtain the assurances for the development of the Project under the DDA. I. This Agreement is intended to be, and shall be construed as, a development agreement within the meaning of the Development Agreement Statutes. This Agreement is intended to augment and further the purposes and intent of the parties in the implementation of the DDA. This Agreement, as a device for the implementation of the DDA, 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 facilities 4 1485898.1 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 Statutes. In exchange for these benefits to City, Operator desires to receive the assurance that it may proceed with development of the Project in accordance with the terms and conditions of this Agreement,the DDA and Existing Land Use Regulations, 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 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: 1. Is consistent with the objectives, policies, general land uses and programs specified in the General Plan. 2. Is compatible with the uses authorized in the district in which the real property is located. 3. Is in conformity with the public necessity, public convenience, general welfare, and good land use practices. 4. Will not be detrimental to the health, safety, and general welfare. 5. Will not adversely affect the orderly development of subject property. 6. Will not have a negative fiscal impact on the City. K. On , 2020, 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. 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. 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. 5 1485898.1 1.1.2 "Applications" is defined in Section 3.11.1. 1.1.3 "City" is defined in the introductory paragraph. 1.1.4 "DDA"is defined in the Recital B. 1.1.5 "Operator"is defined in the introductory paragraph. 1.1.6 "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. 1.1.7 "Development Plan" means any 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. 1.1.8 "Effective Date" means the date the City's ordinance approving this Agreement becomes effective. 1.1.9 "Entitlement Approvals" means all land use approvals and entitlements. including all conditions of approvals, legally required by City or any other governmental authority as a condition for development of the Property, and construction of the improvements in accordance with this Agreement, the DDA and applicable Land Use Regulations, including, without limitation, Design Review and Density Bonus approvals as may be applicable for proposed specific uses(s) in connection with development of the Property. 1.1.10 "Existing Entitlement Approvals" means all Development Permits and Entitlement Approvals approved or issued prior to the Effective Date. 1.1.11 "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, and all other ordinances, resolutions, rules, and regulations of City governing development and use of the Site in effect as of the Effective Date, including without limitation the permitted uses of the Site, 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 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. 1.1.12 "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 Site, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of proposed buildings, the provisions for 6 1485898.1 reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Site. 1.1.13 "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. 1.1.14 "New City Laws" is defined in Section 3.10.1. 1.1.15 "Party" and"Parties" are defined in the introductory paragraph. 1.1.16 "Project" means the Site and all associated Improvements built upon the Site that are required by this Agreement so that Operator may operate the Site in conformity with this Agreement, Deed of Trust, and Declaration of Covenants, including, but not limited to, any related offsite improvements, all recreational and common area improvements, any resource center, residential units, landscaping, parking and related improvements, as the same may from time to time exist on the Site. 1.1.17 "Reservations of Authority" means the rights and authority excepted from the assurances and rights provided to Operator under this Agreement and reserved to City under Section 3.10 of this Agreement. 1.1.18 "Site"means the real property legally described on Exhibit"A"and shown on Exhibit"B"to this Agreement. 1.1.19 "Subsequent Entitlement Approvals" means all Entitlement Approvals required subsequent to the Effective Date in connection with development of the Site. 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 or 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. 1.1.20 "Successor-In-Interest" means any person having a legal or equitable interest in the whole of the Site, or any portion thereof as to which such person wishes to amend or cancel this Agreement. 1.1.21 "Vested Right" means the vested rights granted to Operator pursuant to this Agreement, including,without limitation,the vested right to develop the Property 7 1485898.1 in accordance with,and to the extent of the DDA and the provisions of this Agreement. Any Vested Right 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 Rights included 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, Land Use Regulations, and the Applicable Zoning Ordinance, the "Applicable Rules"); and (4) the Entitlement Approvals,as they may be amended from time to time upon Operator's consent (such consent to be granted at the sole discretion of Operator) 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 Site is hereby made subject to this Agreement. Development of the Site 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, Operator anticipates acquiring the Site. City and Operator agree that Operator's right to acquire the Site pursuant to the DDA creates a sufficient legal and/or equitable interest to enter into this Agreement. If Operator fails to acquire the Site,then this Agreement shall automatically become ineffective as of the date upon which Operator's rights to acquire the Site expires. 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 to allow Operator to obtain the Certificate of Completion referred to in the DDA and Section 2.5 of this Agreement, unless otherwise terminated, modified, or extended by circumstances set forth in this Agreement or by mutual written consent of the Parties. Notwithstanding the foregoing, the performance of any condition or act may be extended for the period that development is prevented or delayed, in whole or in part, due to an event of Force Majeure Delay as provided for in Section 8.11,but in no event shall the expiration of the Term (5 years)under this Agreement be extended by a Force Majeure Delay. 2.4. Assignment/Transfer. 2.4.1 Assignment and Notification. The rights, interests and obligations conveyed and provided herein to Operator benefit and are appurtenant to the Site. Operator 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 8 1485898.1 not be transferred or assigned except in strict compliance with the provisions of Section 7 of the DDA, and the following conditions: (a) Operator secures the written consent of City if required pursuant to Section 7 of the DDA; (b) Prior to assignment or transfer pursuant to this Section 7 of the DDA, Operator shall notify City in writing of such assignment or transfer, the name and address (for purposes of notices hereunder) of the transferee or assignee, and Operator and the assignee or transferee shall notify City whether the assignee or transferee will assume any of Operator's obligations under this Agreement and which of Operator's obligations will be assumed; and (c) 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 and the DDA 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 Operator set forth in this Agreement in accordance with Section 2.4.1, the assignee's exercise, use, and enjoyment of the Site shall be subject to the terms of this Agreement to the same extent as if the assignee, or transferee were Operator. 2.4.3 Release of Operator Upon Assignment/Transfer. Notwithstanding the assignment or transfer of the Site or rights or interests under this Agreement, Operator shall continue to be obligated under this Agreement unless released, or partially released,by City with respect to Operator's obligations and the other duties and obligations of Operator under this Agreement,pursuant to this paragraph, which release or partial release shall be provided by City upon the full satisfaction by Operator of the following conditions: (a) Operator is not then in default under this Agreement; (b) City has consented to the assignment or transfer if required under Section 2.4.1; (c) An assignee or transferee has assumed such duties and obligations as to which Operator 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. Therefore, in the absence of specific written agreement by City,pursuant to which City expressly releases the Operator under the applicable provisions of the DDA or this Agreement, no transfer or assignment shall constitute a release of Operator from any of its obligations under this Agreement and the Operator shall retain such obligations and remain jointly and severally liable for such obligations. 9 1485898.1 2.5. Site Subject to this Agreement Upon Assignment/Transfer. Until recordation of the Certificate of Completion (Attachment 6 to the DDA) as provided for in Section 4.16 of the DDA, the Site shall continue to be subject to this Agreement. 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 Operator as provided by this Agreement. Either Party or a 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 Successor-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 that does not relate to the Term of this Agreement; permitted uses of the Project; the conditions, terms, restrictions and requirements relating to subsequent discretionary approvals of City; or monetary exactions of Operator, 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 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 or Site. Any amendment of City land use regulations including, but not limited to, the General 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. 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. 10 1485898.1 (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 Completion. (e) Due to a default hereunder, as set forth in Article 5 below. (f) Upon mutual written agreement of City and Operator. Termination of this Agreement shall not constitute termination of any other land use entitlements approved,if any, for the Site.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 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: To City: Tustin Housing Authority 300 Centennial Way Tustin, California 92780 Attention: Executive Director Phone: (714) 573-3117 Fax No.: (714) 669-0976 with copies to: The City of Tustin 300 Centennial Way Tustin, California 92780 Attention: City Manager Phone: (714) 573-3010 Fax No.: (714) 838-1602 City Attorney, City of Tustin Woodruff Spradlin & Smart 555 Anton Blvd., Suite 1200 11 1485898.1 Costa Mesa, CA 92626 Attention: David E. Kendig, Esq. To Operator: Family Promise of Orange County, Inc. 310 West Broadway Anaheim, California 92805 Attention: President/CEO Phone: (714) 353-0428 Fax No.: (714) 787-3489 with a copy to: Managing Partner Cummins & White 2424 South East Bristol, Suite 300 Newport Beach, CA. 92660 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 PROJECT SITE. 3.1. Public Benefits. This Agreement provides assurances that local and regional "Public Benefits"will be achieved and developed in accordance with the Entitlement Approvals and the terms of the DDA and this Agreement, subject to the City's Reservation of Authority (Section 3.10). The Project's Public Benefits, include without limitation, providing a safe and stable housing environment for short-term transitional housing for homeless families by building a new, approximately 8,098 square-foot apartment-style multi-unit housing complex [i.e.,2 three- bedroom,4 two-bedroom and 1 one-bedroom units] expecting to serve 30 families each year with transitional housing and via an on-site resource center, serve an additional 20 families each month with a wide range of support services and programs, including career development, case management, education, budgeting and credit repair, all intended to mitigate long-term homelessness in the City and reduce stress on other City and community resources. Additional Public Benefits shall accrue to the City as the Project shall be only accessible to certain qualified families, which shall exclude the Project from being used as an emergency shelter for the homeless, and wherein preference for residing at the Project shall be given to families with defined ties and connections to the City of Tustin Such affordability and other restrictions, qualifications and operations of the Project are imposed by the DDA and Declaration of Covenants for at least 55-years starting from the date of when a Certificate of Occupancy by the City is issued for the Project. 3.2. Operator Objectives. In accordance with the legislative findings set forth in Government Code Section 65864, the Operator 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. As part of the Project's development, and as provided by Section 3.5, Operator 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, Operator 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 12 1485898.1 Agreement and the Existing Entitlement Approvals. This Agreement, therefore, is necessary to assure Operator 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. 3.3. Mutual Objectives. Development of the Project in accordance with this Agreement will provide for the orderly development of the Site 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 Site, 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. 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 Operator 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 Operator regarding the Site after the Effective Date of this Agreement; (3) guarantee that Operator will receive any profits from the Project; or(4) amend the DDA or the City's General Plan. 3.5. Agreement and Assurances on the Part of the Operator. In consideration for the City entering into this Agreement, and as an inducement for the City being obligated to carry out the covenants and conditions set forth in this Agreement, and to effectuate the promises,purposes, and intentions set forth in this Agreement, Operator hereby agrees that it will use commercially reasonable efforts, in accordance with its own business judgment and considering 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. In addition to the forgoing obligations and the development assurances provided by this Agreement, the Project will result in Operator's performance of and providing as consideration to the City the following: (a) Construction of a 7-unit residential apartment building for use as transitional housing for homeless families with direct ties to the City and provision of 13 1485898.1 associated social services consistent with the DDA, this Agreement, and Project approvals; (b) Construction of all vertical, horizontal, and other improvements identified in the DDA; (c) Compliance with the DDA, Tustin City Code, state and federal law, required mitigation measures, and all conditions of approval; and (d) Payment of all required development related fees. 3.6. Agreement and Assurances on the Part of the City. In consideration for Operator entering into this Agreement, and as an inducement for Operator to obligate itself to carry out the covenants and conditions set forth in this Agreement, and to effectuate the purpose of this Agreement, the City hereby agrees as follows: 3.6.1. Vested Right to Development. To the maximum extent permitted bylaw, Operator has the Vested Right to develop the Project subject to the terms and conditions of the DDA, this Agreement, 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 Site, including but not limited to, the permitted uses of the Site, the density and intensity of use, maximum height and size of any proposed buildings, the design, improvement and construction standards and specifications applicable to the development of the Site, including any changes authorized pursuant to this Section 3.6.1, 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, Operator shall have the Vested Right to: (1) carry out and develop the Site in accordance with the DDA, 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, 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, Existing Land Use Regulations, Entitlement Approvals or this Agreement. 3.6.2. Future Rules Impacting Development. 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 of its officers or employees thereof, or by the electorate) (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 3.6.2, the word "conflict" means Future Rules that would (i) alter the Vested Right, or (ii) frustrate in a more than insignificant way the intent or purpose of the Vested Right 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, 14 1485898.1 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 any Vested Right,they shall not apply to the Project and the Vested Right shall apply to the Project. 3.6.3. Availability of Public Services. To the maximum extent permitted by law and consistent with its authority, City shall assist Operator in reserving such capacity for sewer and water services as may be necessary to serve the Project. 3.7 DDA and Existing Land Use Regulations Control Development. 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 Site,the density and intensity of use of the Site, 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 Sections 3.6.1 and 3.6.2, 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 act on all applications for Subsequent Entitlement Approvals as provided in Section 3.9 below. 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 Operator will adhere to the terms of the DDA regarding the timing of development. 3.9. Changes and Amendments to Entitlements. The Parties acknowledge that refinement and further development of the Project will require Subsequent Entitlement Approvals and may also demonstrate that changes are appropriate and mutually desirable in the Existing Entitlement Approvals. 3.9.1 Subsequent Entitlement Approvals. 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. 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. 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 design review, conditional use permits, and subdivision maps, for the 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 15 1485898.1 implement those final policy decisions and shall be issued by City so long as they comply with this Agreement and any Applicable Rules and are not inconsistent with the Entitlement Approvals as set forth above. 3.9.2 Existing Entitlement Approval Amendment. In the event Operator finds that a change in the Existing Entitlement Approvals is necessary or appropriate, Operator 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 Existing Entitlement Approval for all purposes of this Agreement and may be further changed from time to time as provided in this Section 3.9. 3.9.3 Minor Changes and Amendments. Unless otherwise required by law, a change to the Existing Entitlement Approvals requested by Operator, or an approved assignee, may be determined to be "minor" in the exercise of City's reasonable discretion and therefore, 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 Operator shall cooperate to ensure the preparation of any environmental analysis deemed appropriate and necessary pursuant to CEQA. 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 Site 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 Site and Project,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 Site, 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 Site 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 Site 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 Operator's Vested Rights as set forth in this Agreement,provided however, that(i)Operator 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 16 1485898.1 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. 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 Site 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 Operator'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 Site. 3.10.5 Police Power. The Parties acknowledge and agree that City cannot 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 Site. 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 Operator's right to issuance of such permit or approval. 3.11. Processing. 3.11.1 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, design review, 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 17 1485898.1 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 Rules and are not 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 Rules 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 Operator 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 Operator of such additional expense, including the cost of overtime and private consultants and other third- parties. If acceptable to Operator, Operator 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 Operator, City shall inform Operator 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. 3.11.2 Filings. Operator 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. 3.11.3 Cooperation. City and Operator 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 Operator'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. 3.11.4 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 Operator 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. If so required for the Project, construction of infrastructure and public facilities will be as set forth in the DDA, inclusive of the Entitlement Approvals (i.e.,public sidewalk). 3.13. Dedications. Operator and City acknowledge Operator will not be required to dedicate any land to City or other public agencies. 18 1485898.1 3.14. Regulation by Other Public Agencies._ It is acknowledged by the Parties that other public agencies not within the control of City may possess authority to regulate aspects of the Project and development of the Site 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 Operator 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. 4. ANNUAL REVIEW. 4.1 Timing and Annual Review. The Tustin City Council shall review Operator's performance under this Agreement at least every twelve(12)months from the Effective Date until expiration of the Agreement. In connection with the review,both the City and Operator 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. 4.2. Review Procedure. City shall provide notice to Operator and deliver to Operator, or its Successor-in-Interest, a copy of all public staff reports, documents and related exhibits concerning City's review of Operator's performance hereunder at least thirty (30) days prior to any date proposed for City Council review of performance under the Agreement. 4.2.1 Operator 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; (b) conformance with conditions of approvals of Design Review and Density Bonus applications; and (c) conformance with provisions of this Agreement identified by the City. 4.2.2 Operator or its Successor-in-Interest shall have the opportunity to respond to City's evaluation of Operator's performance, either orally or in a written statement, at Operator's election. 4.2.3 The City Council may refer the matter to the Planning Commission for further proceedings or for a report and recommendation. 4.3. 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 19 1485898.1 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 Operator, the City may commence proceedings on termination or modification of the Agreement pursuant to the Tustin City Code and this Agreement, including Section 4.4. 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 4.4 of this Agreement. 4.4. 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 4.3 of this Agreement, the City Council shall give notice to Operator or Successor-in-Interest thereto of its intention to do so. The notice of modification or termination shall contain all the 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 Operator'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). 4.5. Certificate of Agreement Compliance. If, at the conclusion of a periodic review, Operator is found to be in compliance with this Agreement, City shall, upon request of the Operator, issue a Certificate of Review Compliance to Operator stating that after the most recent periodic review and based upon the information known or made known to the City Council that: (1)this Agreement remains in effect, and(2) Operator is not in default. The Certificate of Review Compliance 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. Operator may record the Certificate of Review Compliance with the County Recorder. 5. DEFAULT,REMEDIES,AND TERMINATION. 5.1. Default Procedure. In addition to procedures identified in Section 4.3 and/or 4.4 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 20 1485898.1 obligation of Defaulting Party in accordance with the terms of this Agreement and provided the Notice of Non-Compliance procedures in Section 4.3 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, so 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) notices 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 on 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, enjoin 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, or as an alternative, to exercising the remedies in this Section 5.2, in the event of a material default by Operator, may give notice of its intent to terminate or modify this Agreement pursuant to Section 4.4, 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 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. Operator's Remedies. In the event that the City is in material default under this Agreement, the Operator 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 (Attorney's Fees)below, the Operator agrees and covenants on behalf of itself and it successors and assigns, not to sue City for damages or monetary relief (i) for any breach of this Agreement, (ii) arising out of or connected with any dispute, controversy, or issue regarding the application or effect of this 21 1485898.1 Agreement, (iii) 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. Operator 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 Operator has adequate remedies other than general, special, or compensatory damages,to secure the City's compliance with its obligations under this Agreement. Therefore, Operator 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 Operator. 5.4. Third Party Legal Challenges. In the event of any legal action instituted by a third parry 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 Parry Challenge"), Operator shall have the right but not the obligation to defend any Third-Party Challenge, at its expense. Operator, in defending any Third Party Challenge shall further have the right to settle such Third Party Challenge, provided that nothing herein shall authorize Operator to settle such Third Parry 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 Operator's approval. Operator 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 OPERATOR. Operator 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 Operator or Operator'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 appointed officials, boards, commissions, officers, agents, contractors, and employees. Operator shall select and retain counsel reasonably acceptable to the City to defend any action or actions and Operator shall pay the cost thereof. The indemnity provisions set forth in this Agreement shall survive termination of the Agreement. 7. MORTGAGEE PROTECTION. Subject to any terms and provisions of the DDA, including any necessary approval(s) by the City, relating to the encumbrance of the Project by any mortgage, deed of trust or other security device, the Parties hereto agree that any Mortgagee of the Project shall be entitled to the following rights and privileges: 22 1485898.1 (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 Project 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 Project, 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 Project, 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 Project, 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 Operator in the performance of Operator's obligations under this Agreement. (c) In addition to the City's obligations under Section 4.18(b) of the DDA, if City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Operator under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee. 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 Project and cure the default). (d) Any Mortgagee who comes into possession of the Project, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Project,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 Operator's obligations or other affirmative covenants of Operator hereunder, or to guarantee such performance; except that (i) the Mortgagee shall have no right to develop the Project 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 Operator 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. Notwithstanding anything to the contrary contained above in this Section 7, any Mortgagee shall be subject to all of the terms of the DDA, to the extent applicable pursuant to the DDA to such Mortgagee. 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 Successor-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 Operator 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. 23 1485898.1 8.2. Entire Agreement. This Agreement and the DDA set 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 any 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. Any decision of the City Council provided for herein or the DDA 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 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 Parry'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. Attorney's 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' 24 1485898.1 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 Delay as defined in section 8.11.4, except that in no event, shall the Term set forth in Section 2.3 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's Schedule of Performance, or the ability of the Operator 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 Operator). 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 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. 8.11.4 For purposes of this Section 8, "Force Majeure Delay" shall mean a delay caused by an actual impossibility to perform due to war, insurrection, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, acts or omissions of another party, or acts or failures to act by any other public or governmental authority or entity (except acts or failures to act of the City). Unless causing an actual impossibility of performance by a Party, governmental orders and actions, including business closure or shelter in-place orders, regarding COVID-19, disease, or pandemic shall not constitute a Force Majeure Delay. 8.12. Successor-in-Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, any Successor-in-Interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and 25 1485898.1 constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Project: (a)is for the benefit of and is a burden upon every portion of the Project; (b)runs with the Project and each portion thereof, and, (c)is binding upon each Party and each Successor-in-Interest during ownership of the Project, 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 effect as if all of the parties had executed the same instrument. 8.14. Jurisdiction and Venue. Subject to the provisions of Section 5 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 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 Operator is that of a government entity regulating the development of private property and Operator 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: (a)this Agreement is in full force and effect and a binding obligation of the Party; (b) 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. Operator shall pay to City all costs incurred by City in connection with the issuance of estoppel certificates. 26 1485898.1 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. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth. FAMILY PROMISE OF ORANGE COUNTY, INC., a California non-profit corporation By: Bernd Steinebrunner, President By: Susan Currie, Secretary CITY OF TUSTIN, a municipal corporation, By: Matthew S. West, City Manager ATTEST: By: Erica N. Yasuda, City Clerk TUSTIN HOUSING AUTHORITY, a local housing authority, By: Matthew S. West, Executive Director ATTEST: By: Erica N. Yasuda, Clerk of the Board APPROVED AS TO FORM: By: David E. Kendig, City Attorney Housing Authority General Counsel 27 1485898.1 EXHIBIT A Leal Description 1941 El Camino Real,Tustin,CA 92780 THE LAND REFERRED TO IN THIS REPORT 1S SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, City OF TUSTIN, AS DESCRIBED AS FOLLOWS: THE NORTHWESTERLY 230 FEET OF THE SOUTHEASTERLY 386 FEET OF THE NORTHEASTERLY 210 FEET OF THE SOUTHWESTERLY 240 FEET OF THE SOUTH (QUARTER OF LOT 29 IN BLOCK 12 OF IRVINE'S SUBDIVISION, AS SHOWN ON A MAP RECORDED IN BOOK 1, PAGE 8.8 OF MISCELLANEOUS RECORD MAPS,RECORDS OF ORANGE COUNTY,CALIFORN[A. APN 500-071-12 EXHIBIT B Site Map T - w i a 1941 EI Camino Ideal �. .y W r x yi t n I fikt'dl y r d. u Exhibit B Proposed Conditions of Approval EXHIBIT B RESOLUTION NO. 4418 CONDITIONS OF APPROVAL DEVELOPMENT AGREEMENT 2020-0002 DESIGN REVIEW 2020-0011 GENERAL (1) 1.1 The proposed project shall substantially conform with the submitted plans for the project date stamped February 9, 2021, on file with the Community Development Department, as herein modified, or as modified by the Community Development Director in accordance with this Exhibit. The Community Development Director may also approve subsequent minor modifications to plans during plan check if such modifications are consistent with provisions of the Tustin City Code (TCC). Any changes in the approved project shall be subject to the review and approval of the Community Development Department. The Community Development Director may approve subsequent minor modifications to plans during plan check if such modifications are consistent with provisions of the TCC. (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 substantial construction is underway within twelve (12) months of the date the Development Agreement becomes effective. Time extensions may be granted if a written request and associated fee are received by the Community Development Department and Economic Development Department within thirty (30) days prior to expiration. (1) 1.4 Approval of Design Review (DR) 2020-0011 and Development Agreement (DA) 2020-0002 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 Community Development Director, and evidence of recordation shall be provided to the Community Development Department. SOURCE CODES (1) STANDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREMENT (2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES (3) UNIFORM BUILDING CODE/S (7) PC/CC POLICY (4) DESIGN REVIEW *** EXCEPTION Exhibit B Resolution No. 4418 Page 2 (1) 1.5 As a condition of approval of DR 2020-0011 / DA 2020-0002, 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) 1.6 DR 2020-0011 / DA 2020-0002 may be reviewed annually or more often, if deemed necessary by the Community Development Department, to ensure compatibility with the area and compliance with the conditions contained herein. If the use is not operated in accordance with the conditions of approval or is found to be a nuisance or negative impacts are affecting the surrounding tenants or neighborhood, the Community Development Director may impose additional conditions to eliminate the nuisance or negative impacts. (1) 1.7 Any violation of any of the conditions imposed is subject to the issuance of an Administrative Citation pursuant to Tustin City Code (TCC) Section 1162(a). (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 Applicant shall comply with the executed Development Agreement (DA) 2020-0002,associated Disposition and Development Agreement (DDA), and the Housing Agreement. (1) 1.10 This approval shall become null and void if the DA for the project is not approved and executed. USE RESTRICTIONS (1), 2.1 The use shall consist of a 7,681 square foot multi-family building to (5) provide short-term transitional housing and services for qualified families with children who are experiencing homelessness or at risk of experiencing homelessness. The facility shall consist of seven (7) residential units, a multi-purpose room with on-site laundry facility, family resource center, and an outdoor play area and exterior courtyard, and fourteen (14) parking stalls. Exhibit B Resolution No. 4418 Page 3 (1), 2.2 The project shall not be used as an emergency shelter for those (5) experiencing homelessness and shall not operate as such. (1), 2.3 The project shall include a resource center to provide a wide range of (5) support services and programs, including career development, case management, education, budgeting and credit repair, computer and internet services, and life skill classes to onsite residents and to an additional twenty (20) families each month consistent with the approved DA for Short-Term Transitional Housing. (1), 2.4 Selection criteria for family placement in the project shall be such that (5) families with ties to the City of Tustin receive preferential placement, and the applicant shall use its best efforts to have all units occupied by families with direct ties and connections to the City of Tustin. (1), 2.5 The project shall ensure continued affordable rent for very-low income (5) families for at least fifty-five (55) years. (1), 2.6 Within thirty(30) days of approval of the applicant's request for the density (5) bonus and/or concession, the applicant shall submit a Housing Incentive Agreement to the City in compliance with TCC Section 9142. (1), 2.7 All parking spaces shall be maintained as shown on the approved Site Plan. (5) Any changes to the number, location, or size of parking spaces shall be reviewed and approved by the Community Development Director. SITE AND BUILDING DESIGN (1,4) 3.1 Project materials shall substantially comply with those identified in the approved plans (as such plans may be modified pursuant to the Conditions of Approval). Additional color and material samples may be requested by City staff at the time of plan check. Substitutions to the approved materials may occur subject to the approval of the Community Development Director. Enhancements to the architectural detailing may be required at the time of plan check based on the proposed materials. (1,4) 3.2 Applicant shall submit a complete set of plans prepared by a California registered architect or civil engineer to the Building Division to obtain a permit for the new tenancy. Plans shall include site plan, existing floor plans, proposed floor plans, mechanical, electrical and plumbing plans. (1,4) 3.3 At plan check, the applicant shall submit plans for solar array to the Building Division for issuance of a permit. The solar panel shall be located in such a way to minimize the visual impact to the building. Exhibit B Resolution No. 4418 Page 4 (1,4) 3.4 The applicant and owner are responsible for ensuring that information contained in construction drawings is consistent among architectural, structural, grading, electrical, mechanical, plumbing, fire, utility and public improvement plans as well as other construction drawings. (1,4) 3.5 All exterior stucco shall be applied in 20/30 mix. (1,4) 3.6 In accordance with the submitted noise analysis, all units shall be constructed with appropriate sound attenuation to achieve the minimum noise level standards pursuant to the City's Noise standards. Prior to issuance of Certificate of Occupancy, the units shall be analyzed and certified for compliance with the City's Noise standards. (1,4) 3.7 All rooftop mounted equipment shall be installed so as not to be visible from the public right-of-way and parking lot areas and in accordance with the approved plans. No rooftop mounted equipment shall be visible from public view. Compliance with this condition shall be verified at plan check and at field inspection. (1,4) 3.8 All utilities shall be installed underground. (1), 3.9 Utility meters located outside of the building shall be screened with (5) landscaping to the greatest extent possible. Electrical transformers shall be located in areas with room for landscape screening to be planted outside the required access space. *** 3.10 Backflow devices and double detector checks shall be painted to match surrounding landscaping when in planters or painted to match the building when located adjacent to the building. Landscaping shall be utilized to screen the devices where possible. (1), 3.11 Prior to the issuance of building permits, the applicant shall submit for (5) review and approval a photometric lighting plan showing compliance with the Tustin Security Code, which is: a. A maintained minimum one (1) foot-candle of light on the parking surfaces. b. A maintained minimum of one-quarter (0.25) foot-candle of light on the walking surfaces. LANDSCAPING (1), 4.1 At plan check, submit detailed landscaping and irrigation plans for all (6) landscaping areas. Landscape plans shall comply with the City's Water Efficient Landscape Ordinance and Ordinance No. 1457, regarding the Exhibit B Resolution No. 4418 Page 5 water conservation requirements stipulated in the Governor's Executive Order B-29-15 and the City's Water Management Plan. (1), 4.2 All landscaping shown on plans shall be installed and maintained by the (6) property owner and shall include screening of any proposed detector check valve water systems and electrical transformers. In addition to shrubs and ground cover, vines shall be planted in the planter area adjacent to the trash enclosure. All vine planting shall include support ties to establish the vines on the walls. Landscaping shall be installed prior to final inspection of the project. (1), 4.3 The Community Development Department may request minor (6) substitutions of plant materials or request additional sizing or quantity of materials during plan check. (1), 4.4 The landscape plans shall note that coverage of landscaping and (6) irrigation materials is subject to inspection at project completion by the Community Development Department. (1), 4.5 All plant materials shall be installed in a healthy vigorous condition typical (6) to the species and shall be maintained in a neat and healthy condition. Maintenance includes, but is not limited to, trimming, weeding, removal of litter, fertilizing, regular watering, and replacement of diseased or dead plants. (6) 4.6 Root barriers shall be installed as needed in areas where trees are planted in close proximity to hardscape and/or structures. SIGNAGE (1,4) 5.1 All signs shall comply with the TCC and shall be compatible with the building design. Sign plans shall be submitted to the Community Development Department for approval prior to issuance of sign permit. All signage must have a valid sign permit, if applicable. (1,4) 5.2 A sign permit shall be applied for and obtained from the Community Development Department prior to constructing, erecting, altering, replacing, moving, or painting any sign, except for signs exempt from a permit according to the Tustin Sign Code. Permit applications shall be accompanied by information as required for a standard sign plan or master sign plan, pursuant to the Tustin Sign Code. (1,4) 5.3 All signs shall be structurally safe and maintained in good condition at all times. The Community Development Director shall have the authority to order repair, replacement, or removal of any signs which constitute a hazard or nuisance to the safety, health, or public welfare by reason of Exhibit B Resolution No. 4418 Page 6 inadequate maintenance, dilapidation, or obsolescence. (1,4) 5.4 All signs shall be constructed of a non-corrosive, rust-resistant finish so as not to degrade in adverse weather conditions. (1,4) 5.5 The locations for any signs shall comply with the City of Tustin Guidelines for Determining Sign Location Visual Clearance and Public Safety Areas. Signs shall not be placed in a manner that will obstruct or inhibit sight distance or visibility for the motorist. At plan check submittal, all signs shall be clearly identified on plans as to the exact locations. Any signs in proximity to the public right-of-way that could impact driver sight shall be shown at a larger scale that will be adequate for plan check purposes. BUILDING PLAN SUBMITTAL (1), 6.1 All construction shall comply with 2019 California Building Code, (3) California Mechanical Code, California Electrical Code, California Plumbing Code, California Green Code, California Energy Codes and City Ordinances, State and Federal laws, and other regulations as adopted by the City Council of the City of Tustin. (1), 6.2 The applicant shall apply for and obtain building permits for construction (3) of the proposed project. Architectural plans, egress plans, plumbing, mechanical, electrical and structural plans along with elevator plans shall be submitted with the permit application (1), 6.3 Plans submitted for plan check shall include: (3) Definition: PUBLIC HOUSING. [DSA-AC & HCD 1-AC] Housing facilities owned, operated, or constructed by, for or on behalf of a public entity including but not limited to the following: • Publicly owned and/or operated one- or two-family dwelling units or congregate residences; • Publicly owned and/or operated buildings or complexes with three or more residential dwelling units; • Public housing as defined in Chapter 2 of California Building Code is subject to provisions of the Division of the State Architect (DSA- AC) in Chapter 11B. Newly constructed covered multifamily dwellings, which can also be defined as public housing, shall be subject to the requirements of Chapter 11A and Chapter 11 B. Note: A public entity's program to provide housing may include but is not limited to: the allocation of local, state, or federal financial assistance, Exhibit B Resolution No. 4418 Page 7 Community Development Block Grants, Low Income Housing Tax Credits, the California Multifamily Housing Program, loan agreements and housing bonds. Examples that are not considered a public entity's program to provide housing may include but are not limited to: density bonuses, the receipt of public funds for the installation of energy efficiency features, seismic strengthening, water conservation and fire safety features. For additional information see "Guide to Public Housing Regulated in Chapter 11B of the California Building Code "and the "California Access Compliance Advisory Reference Manual "available on the Division of the State Architect's website. (1), 6.4 CBC 1104A.1: All ground-floor dwelling units in nonelevator buildings (3) shall be adaptable and on an accessible route. (1), 6.5 Accessible parking spaces shall be provided at a minimum rate of two (3) percent (2%) of the covered multi family dwelling units. (2% x7 units= 1). (1), 6.6 When parking is provided for covered multi-family dwellings and is not (3) assigned to a resident or a group of residents, at least five percent (5%) of the parking spaces shall be accessible and provide access to grade- level entrances of covered multifamily dwellings and facilities (e.g., swimming pools, club houses, recreation areas, and laundry rooms) that serve covered multifamily dwellings. Accessible parking spaces shall be provided with signage as required by Section 1109A.8.8. Such signage shall not be blocked from view by a vehicle parked in the space. CBC 2016, section 1109A.5. (5% x 15 spaces=1). When assigned parking is provided, designated accessible parking for the dwelling unit shall be provided on requests of residents with disabilities with the same terms and with the full range of choices (e.g. carport or garage) that are available to other residents. CBC 2016, Section 1109A.6. (1), 6.7 When practical, the accessible route shall not cross lanes for vehicular (3) traffic. When crossing vehicle traffic lanes is necessary, the accessible route shall be designated and marked as a crosswalk. (CBC 1109A.7) (1), 6.8 Accessible parking spaces shall be located so that persons with (3) disabilities are not compelled to wheel or walk behind parked cars other than their own. (CBC 1109A.7) (1), 6.9 Accessible van parking spaces shall have access isle located on the (3) passenger side of the vehicle with the vehicle parked in the forward position. The width of parking space shall be nine (9) feet and access isle shall be eight (8) feet wide. Exhibit B Resolution No. 4418 Page 8 (1), 6.10 The ground immediately adjacent to the foundation shall be sloped away (3) from the building at a slope of not less than one (1) unit vertical in 20 units horizontal (five percent (5%) slope) for a minimum distance of ten (10) feet measured perpendicular to the face of the wall. If physical obstructions or lot lines prohibit ten (10) feet of horizontal distance, a five percent (5%) slope shall be provided to an approved alternative method of diverting water away from the foundation. Swales used for this purpose shall be sloped not less than two percent (2%) where located within ten (10) feet of the building foundation. Impervious surfaces within ten (10) feet of the building foundation shall be sloped not less than two percent (2%) away from the building. (CBC 1804.4) (1), 6.11 Comply with California Green Building, Section 4.106.4.2 to facilitate (3) future installation and use of EV chargers. Ten percent (10%) of the total number of parking spaces on a building site shall be EV charging spaces capable of supporting future EVSE. Calculation for the required number of EV spaces shall be rounded up to the nearest whole number. Construction Documents are intended to demonstrate the project's capacity for facilitating future EV charging. (1), 6.12 Comply with California Energy Code, Section 110.10 mandatory (3) requirements for solar ready buildings. Low-rise multifamily buildings that do not have a photovoltaic system installed shall comply with the requirements of section 110.10(b)through 110.10(d). The solar zone shall be located on the roof or overhang of the building or on the roof or overhang of another structure located within 250 feet of the building and shall have a total area not less than fifteen percent (15%) of the total area of the building excluding any skylight area. (1), 6.13 Common use facilities for public use facilities shall be designed per CBC (3) Chapter 11 B. (1), 6.14 Recycling areas shall have a solid roof or awning and shall be enclosed (3) by masonry wall with access which effectively obscures the contents placed within the enclosure. Trash enclosures with only enough space for dumpsters used as point of waste disposal only are not employee workplaces; however, they are part of the facility on the site and as such, must have an accessible route to it, similar to common area facilities such as storage rooms. The accessible route may terminate at a complying door with strike edge clearance and complying hardware, but entry to the enclosure itself is not required. The dumpsters themselves are not regulated by CBC Chapter 11 B. (1), 6.15 Trash enclosures shall have a solid roof or awning and shall be enclosed (3) by masonry wall with access which effectively obscures the contents placed within the enclosure. Trash enclosures with only enough space for Exhibit B Resolution No. 4418 Page 9 dumpsters used as point of waste disposal only are not employee workplaces; however, they are part of the facility on the site and as such, must have an accessible route to it, similar to common area facilities such as storage rooms. The accessible route may terminate at a complying door with strike edge clearance and complying hardware, but entry to the enclosure itself is not required. The dumpsters themselves are not regulated by CBC Chapter 11 B. (1), 6.16 Public housing facilities with residential dwelling units shall comply with (3) Section 11 B-233. (1), 6.17 All direct service overhead powerlines serving the property shall be (3) relocated underground. PUBLIC WORKS DEPARTMENT WQMP CONDITIONS (1) 7.1 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). The Priority WQMP, it shall identify Low Impact Development (LID) principles and Best Management Practices (BMPs) that will be used on-site to retain storm water and treat predictable pollutant run-off. 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) 7.2 Prior to submittal of a 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) 7.3 Prior to issuance of any permits, the applicant shall record a Covenant and Agreement Regarding O & 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 specified in the approved Priority WQMP. STREET IMPROVEMENT CONDITIONS (1) 7.4 Prior to any work in the public right-of-way, an Encroachment Permit shall be obtained from and applicable fees paid to the Public Works Department. Exhibit B Resolution No. 4418 Page 10 (1) 7.5 The applicant shall complete street improvements on EI Camino Real along the project frontage consisting of: a. Design and construct full width concrete sidewalk, curb and gutter along property frontage on EI Camino Real. b. Proposed driveway apron shall be designed and constructed per the most current City of Tustin commercial driveway apron standard with a minimum width of 27 ft. c. Current Federal Americans with Disabilities Act (ADA) requirements shall be met at all driveways and sidewalks adjacent to the site. City of Tustin standards shall apply, unless otherwise approved by the City Engineer. d. These public improvements shall be designed prior to issuance of any City of Tustin Building Permit. The public improvements shall be completed prior to release of occupancy. (1) 7.6 The applicant shall submit to the Public Works Department 24" x 36" reproducible street improvement plans, as prepared by a California Registered Civil Engineer, for approval. The plans shall clearly show existing and proposed surface and underground improvements, including construction and/or replacement of any missing or damaged public improvements adjacent to this development. (1) 7.7 Prior to issuance of an Encroachment Permit for construction within the public right-of-way, a 24" x 36" construction area traffic control plan, as prepared by a California Registered Traffic Engineer, or Civil Engineer experienced in this type of plan preparation, shall be prepared and submitted to the Public Works Department for approval. (1) 7.8 Any water improvement plans must follow the latest City of Tustin Water Standards and the American Water Works Association (AWWA) guidelines. In case of a conflict, the City of Tustin Water Standards shall prevail. Exhibit B Resolution No. 4418 Page 11 (1) 7.9 A backflow prevention device may be required to protect the public water system from cross connections. A. If a double check detector assembly (DCDA) is required, an easement for public utility access purposes must be dedicated to the City of Tustin. The easement shall start from the public right-of-way up to the DCDA with a minimum distance of five (5) feet all around the DCDA to allow for unobstructed access, inspection, testing, and maintenance. B. If a building sprinkler system is required by the Orange County Fire Authority (OCFA), the applicant shall be required to provide a backflow prevention device at his or her expense to prevent cross contamination with the public water system. C. If the applicant proposes to use an irrigation system, then a separate water meter will be required. If this is the case, a reduced pressure principle assembly (RPPA) shall be required to prevent cross-connection with the public water system. (1) 7.10 Any easements for construction and maintenance of public water facilities within private property shall be reviewed and approved by the Public Works Department prior to recordation with the Orange County Clerk- Recorder. The applicant shall submit a legal description and sketch of the area to the Public Works Department for review and approval, as prepared by a California Registered Civil Engineer or California Licensed Land Surveyor. (1) 7.11 The applicant is responsible for all costs related to the installation, upgrade, alteration, relocation or abandonment of all existing City of Tustin public water facilities affected by the proposed project. (1) 7.12 The applicant's project is within the East Orange County Water District (EOCWD) service area. Prior to issuance of any permit, the applicant shall provide written approval from the EOCWD sewer and water service approval. The applicant shall submit a sewer and water permit application to EOCWD, and is responsible for all application, connection and other EOCWD fees. (1) 7.13 The adequacy of a proposed water system plan for a proposed development project, including the number, size and distribution of fire hydrants, must be reviewed by the Orange County Fire Authority (OCFA). Plans meeting OCFA fire protection requirements must be stamped and approved by that agency. Exhibit B Resolution No. 4418 Page 12 7.14 The proposed domestic water system plans must conform to all applicable regulations enforced by the Orange County Health Department. SOLID WASTE RECYCLING CONDITIONS (1) 7.15 Facility Solid Waste Collection and Recycling Plan. A. The applicant, property owner, and/or tenant(s) are required to participate in the City's recycling programs. B. Waste and Recycling collection facilities shall be equally and readily accessible by the property owner(s) or tenant(s). C. Waste and Recycling collection facilities must be placed in a location that can be easily and safely accessed by the solid waste hauler while utilizing either front loader or side loading equipment. D. Adequate collection capacity shall be provided to ensure that collection frequency shall not exceed four times per week for commercial customers. E. All trash enclosures shall be designed with roof and be able to accommodate at least two (2) 4-yard bins, with at least one (1) bin reserved for recyclable materials. Space for a container for organics is also required as described in Section 15G below. F. Prior to the approval of a site plan or the issuance of a building permit, the Public Works Department shall review and approve the number of trash enclosures required to service the project site. G. All developments are required to provide space for the collection of organic materials. Organics are collected in 35-gallon and 65- gallon wheeled carts, and 2-yard bins. The size of the organics container will be dependent upon the use and size of the building. Organics can be collected six (6) days per week to minimize the space required for a container. (1) 7.16 Any damage done to existing public street improvements and/or utilities shall be repaired to the satisfaction of the City Engineer before issuance of a Certificate of Occupancy. Exhibit B Resolution No. 4418 Page 13 ORANGE COUNTY FIRE AUTHORITY (1), 8.1 Plan Submittal: The applicant or responsible party shall submit the plan(s) (5) listed below to the OCFA for review. Approval shall be obtained on each plan prior to the event specified. Prior to OCFA clearance of a final map or issuance of a precise grading permit or a building permit, if a grading permit is not required: • Fire Master Plan (PR145) • Prior to concealing interior construction: • Fire alarm system (service code PR500-PR520) • Fire sprinkler system (service code PR420-PR440) Specific submittal requirements may vary from those listed above depending on actual project conditions identified or present during design development, review, construction, inspection, or occupancy. Portions of the project that are deferred shall be subject to the codes, standards, and other applicable requirements in force on the date that the deferred plan is submitted to OCFA. Standard notes, guidelines, informational bulletins, submittal instructions, and other information related to plans reviewed by the OCFA may be found by visiting ocfa.org and clicking on "Business, Planning & Development Services" in the menu bar at the top of the screen. (5) 8.2 Temporary/Final Occupancy Inspections: Prior to issuance of temporary or final certificate of occupancy, all OCFA inspections shall be completed to the satisfaction of the OCFA inspector and be in substantial compliance with codes and standards applicable to the project and commensurate with the type of occupancy (temporary or final) requested. Inspections shall be scheduled at least five days in advance by calling OCFA Inspection Scheduling at 714-573-6150. (5) 8.3 Lumber-drop Inspection: After installation of required fire access roadways and hydrants, the applicant shall receive clearance from the OCFA prior to bringing combustible building materials on-site. Call OCFA Inspection Scheduling at 714-573-6150 with the Service Request number of the approved fire master plan at least five days in advance to schedule the lumber drop inspection. (5) 8.4 Emergency Responder Digital Radio System: Evidence of compliance with emergency responder digital radio system Exhibit B Resolution No. 4418 Page 14 performance criteria shall be provided prior to occupancy. Refer to OCFA Guideline E-03 or the local jurisdiction's emergency responder radio ordinance, as applicable, for requirements. FEES (1) 9.1 Prior to issuance of each building permit, 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 plan check and permit fees to the Community Development Department based on the most current schedule at the time of permit issuance. B. Engineering plan check and permit fees to the Public Works Department based on the most current schedule at the time of permit issuance. C. OCFA plan check and inspection fees to the Community Development Department based upon the most current schedule at the time of permit issuance. D. Payment of Major Thoroughfare and Bridge Fees to the Tustin Public Works Department are required at the time a building permit is issued. E. Water and sewer connection fees to the Irvine Ranch Water District. F. New residential construction fees in the amount of three-hundred-and- fifty dollars ($350.00) per unit plus one-hundred dollars ($100.00) for each bedroom over one (1) in each unit. G. School facilities fee in the amount as required by Tustin Unified School District. (1) 9.2 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 the 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.