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HomeMy WebLinkAbout10 DEVELOPMENT AGREEMENT 2020-0002, DESIGN REVIEW 2020-0011 (1941 ECR) (1)DocuSign Envelope ID: E73BD1 31 -133E7-41 C2-8131 0-02CC97182709 �1PY O� AGENDA REPORT '_6_10P MEETING DATE TO: FROM: SUBJECT: SUMMARY: MARCH 2, 2021 MATTHEW S. WEST, CITY MANAGER Agenda Item 10 Reviewed: DS City Manager Finance Director N/A JUSTINA L. WILLKOM, COMMUNITY DEVELOPMENT DIRECTOR DEVELOPMENT AGREEMENT 2020-0002 , DESIGN REVIEW 2020- 0011, AND DENSITY BONUS ALONG WITH CONCESSIONS FOR THE DEVELOPMENT OF A SEVEN (7) UNIT MULTI -FAMILY BUILDING FOR SHORT-TERM TRANSITIONAL HOUSING FOR FAMILIES AND CHILDREN FOR A DEVELOPMENT LOCATED AT 1941 EL CAMINO REAL (APN 500-071-12) The project includes the disposition of an approximate 16,790 square -foot lot (0.385 acre) for the development of a 7,681 square -foot multi -family residential project consisting of seven (7) residential units for short-term transitional housing and services for families with children experiencing homelessness or at -risk of homelessness. The proposed project requires approval of a Development Agreement to facilitate the development and conveyance of the site, Design Review for the building design and layout, a density bonus to authorize two (2) additional units on the site and two (2) development concessions to reduce the front yard setback and a waiver of covered parking for a project located at 1941 EI Camino Real (APN 500-071-12). DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 2 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 RECOMMENDATION: That the City Council: Introduce and have first reading by title only of Ordinance No. 1512, approving Development Agreement (DA) 2020-0002 between the City of Tustin and Family Promise of Orange County, to facilitate the disposition of the property and for the development of a seven (7) unit multi -family building for short-term transitional housing for families with children experiencing or at -risk of homelessness on an approximate 16,790 square foot (0.385 acre) site, and authorize the City Manager to execute DA 2020-0002. 2. Adopt Resolution No. 21-17 approving Design Review (DR) 2020-0011 for building design and site layout; a Density Bonus to authorize two (2) additional units; and two (2) development concessions for a reduced front yard setback and a waiver of covered parking 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. FISCAL IMPACT: Upon fulfillment of terms in the Disposition and Development Agreement executed on February 18, 2020, between the City and Family Promise, the City will be conveying the property to Family Promise through a 30 -year forgivable Promissory Note. While 1941 EI Camino Real carries a value of $320,000 on the City's financial statements, the City will order an appraisal three months prior to conveyance to obtain an opinion of value for the property. The value of the Promissory Note will be based on the appraisal. CORRELATION TO THE STRATEGIC PLAN: The proposed project furthers the objectives of the following Strategic Plan goals: • Goal A: Economic and Neighborhood Development —The proposed project would address homelessness by providing short-term transitional housing for families with children experiencing homelessness or at risk of homelessness. DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 3 Goal D: Strong Community and Regional Relationships — The proposed project is a collaboration with private entities, non-profit organizations and other public agencies to advance issues or services of mutual interest. APPROVAL AUTHORITY: • 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. 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 City Council approval, DR 2020-0011 is forwarded to the City Council for consideration. BACKGROUND AND DISCUSSION: The City owns an approximately 16,700 square feet parcel at 1941 EI Camino Real. In 2018, Family Promise proposed to purchase the property and build an apartment project with seven units and a family resource center for the purposes of providing short-term transitional housing for homeless families. Family Promise was established in February of 2012 with a mission to help families experiencing homelessness achieve housing stability. They support families in emergency and short-term housing programs and continue their support for two additional years in the graduate support services program through partnerships with over twenty (20) Orange County congregations, including Tustin -area congregations: Aldersgate United Methodist Church; Church of the Foothills; Trinity United Presbyterian; Tustin Presbyterian Church; and Congregation B' Nai Israel. Through their housing programs, meals, and case management, they support 35-40 families a year by providing over 2,000 emergency shelter nights and serving over 7, 000 meals. DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 4 On November 6, 2018, the City entered into an Exclusive Negotiation Agreement with Family Promise of Orange County (FPOC) for the disposition of City property to develop transitional housing for homeless families. During the negotiations, Family Promise secured a commitment from HomeAid Orange County to partner in fundraising and building the transitional housing. On February 18, 2020, the City entered into a Disposition and Development Agreement (DDA) with Family Promise to secure the site pending the entitlement approval and the terms included in the DDA. Since then, the project has been named "House of Ruth." The project will be operated by Family Promise and constructed by HomeAid Orange County in partnership with Builder Captain Brookfield Residential. Brookfield, as the Development Builder Captain are brought into the development process with a primary role to bring resources, in terms of materials and labor at a discount rate. These resources include staff's time, subcontractors and trades work, as well as physical materials such as lumber, metals, etc. Many of the labor and materials are either donated or provided at a reduced cost to the development. This allows HomeAid to save thirty (30) percent of market rate cost or more on each HomeAid housing development. 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. s f Project C� r r 4j� site • `h pw ` A Figure 1 — Project Site Aerial DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 5 General Plan Conformity 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. 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. On February 9, 2021, the Planning Commission approved Resolution No. 4417 (Attachment B), determining that the location, purpose, and extent of the proposed disposition of the project site to FPOC, consisting of 16,790 square feet (0.385 acres), 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 (GPC 2021-0001). DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 6 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 Density Bonus provision and the Disposition and Development Agreement (DDA) between the City and the Developer. The proposed seven (7) unit, apartment -style building is a 7,681 square -feet and has the following unit and bedroom breakdown: Unit Type No. Units Three -bedrooms Two 2 Two -bedrooms Four 4 One -bedroom 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 DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 7 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. Cou Buil( Figure 2 Density Bonus and Development Standard Concessions )it Lot larking I 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: ize/ Min. Lot Area Allowable Units 7,200 sq. ft./3000 sq. ft. 9 Proposed Project16,790 sq. ft./3,000 sq. ft. 5.60 units With Density Bonus 16,790 sq. ft./2,398 sq. ft. I 7 units Table 1 DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 8 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 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. For market rate housing, the TCC requires two (2) covered parking spaces per unit and one (1) guest space for every four (4) units. However, State Density Bonus Law and the TCC provide reduced parking requirements for affordable housing developments. Therefore, the required number of parking spaces for this affordable housing project is ten (10) covered parking spaces as shown in Table 2 below. No additional guest parking spaces are required for this affordable housing development per state law and the TCC. DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 9 Three -bedrooms 1.5 spaces per unit 1.5 x 2 = 3 Two -bedrooms 1.5 spaces per unit 1.5 x 4 = 6 One -bedroom 1 space per unit 1 x 1= 1 Table 2 10 spaces required The applicant proposes fourteen (14) open parking spaces. Although the required number of parking spaces will be provided and exceeded, as a second concession, the applicant has requested a waiver of the covered parking requirement. The applicant indicates that: (1) the provision of covered parking (versus uncovered parking) is an added cost, (2) that most of the residents would have no more than one (1) vehicle, and (3) 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. 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. DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 10 maL Street View r,. Rear View PF P Entry View Proposed Materials Entry View Proposed Materials DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 11 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 C). 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). E_ CANINO REAL Figure 3 DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 12 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. The Development Agreement for Short Term Transitional Housing (DA 2020-0002), included herewith as Exhibit A within Attachment D, 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. 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 in this report. • 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. DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 13 Pursuant to TCC Section 9607, the Planning Commission considered the DA and adopted Resolution No. 4418 (Attachment D), recommending that the City Council approve the DA. In considering whether to approve the DA, the City Council shall consider the DA and determine whether the DA: (a) is consistent with the objectives, policies, general land uses and programs specified in the General Plan; (b) is compatible with the uses authorized in the district in which the real property is located; (c) is 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. Public Outreach and Comments On January 28, 2021, a public hearing notice was published in the Tustin News, and the Community Development Department mailed a Notice of Public Hearing to a total of thirty (30) property owners within a 300 foot radius of the project site. On the same date, notification was also posted at two (2) locations on the project site. On February 2, 2021, the applicant held a virtual neighborhood meeting via Zoom and responded to concerns regarding traffic, noise, safety and security, business hours, onsite staffing, trash enclosure location, and potential construction impacts. In response to these concerns, the applicant has indicated that a security camera will be installed at the front entrance, the proposed trash enclosure location will be revised during plan check to relocate it further away from adjacent residences, the Tustin Police will be provided with a twenty four (24) hour emergency contact telephone number, and onsite staff will be present for a minimum of eight (8) to ten (10) hours per day to address any immediate concerns. DocuSign Envelope ID: 2CB05756-FBF6-42EC-98C1 -D4C747EE81 El City Council Report March 2, 2021 Family Promise of Orange County Page 14 Planning Commission Action On February 9, 2021, the Planning Commission considered the project and adopted Resolution 4418 recommending the City Council approve the proposed project and adopted Resolution No. 4417 determining that the project is in conformance with the City's General Plan. A copy of the draft Planning Commission meeting minutes, which include Commissioner comments and reference the approved resolutions, are provided in Attachment E. The Planning Commission also considered correspondence received from the public, which included seven (7) letters of support and one (1) e -comment (Attachment F). CONCLUSION: The proposed project, including 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 City Council adopt Ordinance No. 1512 for the Development Agreement (DA) 2020-0002 (Attachment G) and Resolution No. 21-17 for DR 2020-0011 (Attachment H) for the building design and site layout along with a Density Bonus and the two (2) requested concessions. Docu Signed by: DocuSigned by: C�u�nt, Nvu, u�}inu Ch l�iQQJcena 15DF594829AC4A0... ED45DA2623654A5... Elaine Dove, AICP, RLA Justina L. Willkom Senior Planner Community Development Director Attachments: A. Radius Map & Land Use Application Fact Sheet B. Planning Commission Resolution No. 4417 (General Plan Conformity 2021-0001) C. Submitted Plans D. Planning Commission Resolution No. 4418 (DA 2020-0002 and DR 2020-0011) • Exhibit A: Draft Ordinance No. 1512 and Development Agreement • Exhibit B: Proposed Conditions of Approval E. Planning Commission Minutes - February 9, 2021 F. Correspondence received G. Ordinance No. 1512 (Development Agreement) H. City Council Resolution No. 21-17 (Design Review) ATTACHMENT A RADIUS MAP & LAND USE APPLICATION FACTS 300 foot, 500 foot, and 1,000 foot Radius Map Location Map 1941 EI Camino Real Project # GPC-2021-0001/DR-2020-0011/DA 2020-0002 1,000 foot 500 foot 300 foot 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 B. GENERAL PLAN: HIGH DENSITY RESIDENTIAL C. ZONING: R4 DEVELOPMENT FACTS: 10. LOT AREA: 16,720 S.F. 11. BUILDING LOT COVERAGE: N/A REQUIRED 12. SITE LANDSCAPING: N/A REQUIRED PROPOSED: MULTI -FAMILY PROPOSED: SAME PROPOSED: SAME 0.385 ACRES 24% PROPOSED 20.8% PROPOSED 13. PARKING: 14 15. TOTAL: 14 REQUIRED (COVERED) BUILDING HEIGHT BUILDING SETBACKS: 2 STORIES OR 35 FEET FRONT: 20' REQUIRED 14 PROPOSED (CONCESSION REQUESTED FOR UNCOVERED PARKING) 27'-9" PROPOSED 10' PROPOSED (CONCESSION REQUESTED) 16. OTHER UNIQUE CONDITIONS ASSOCIATED TO THE PROPERTY (I.E. SPECIAL STUDY ZONES, EASEMENTS, ETC.) CITY OF TUSTIN IS CURRENT PROPERTY OWNER. ATTACHMENT B PLANNING COMMISSION RESOLUTION 4417 GENERAL PLAN CONFORMITY 2021-0001 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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: 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF Resolution No. 4417 Page 3 PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting held on the 9th day of February, 2021. tE by: ";Vj , d-. 00&&W, 45DA2623B54A5... JUSTINA L. WILLKOM Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) DocuSigned by: -11t D3273B6D898A43D... AMY MASON Chairperson 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: tE by: ";Vj , d. 00&&W, 45DA2623B54A5... JUSTINA L. WILLKOM Planning Commission Secretary Chu. Jha, Kozak. Mason (4) ATTACHMENT C SUBMITTED PLANS HOUSE TUSTIN, CA jy�• I Kevin L. Crook m % �� Homea�a Famil Brookfield �nn'/4J�p) IIS, Architect ti� r Promise Residential `�C„� li10M FUSCOE Inc T I I Orange County e a i x i i x s.E� of orange county a�n/o n120 0Ta aE° ,� i H'Tel Orange County -Family Promise f Orange County . -doom TABLE OF CONTENTS A-1 Rendering A-2 11 Floor Plan A-3 2nd Floor Plan A-4 Roof Plan A-5 Elevations - Front and Rear Elevation A-6 Elevations Right- Left - Courtyard Left - Courtyard Right & Courtyard Rear Elevations A-7 Details A-8 Exterior Colors & Color Board C-1 Existing Conditions Plan C-2 Preliminary Grading and Utility Plan C-3 Typical Cross Sections L-1 Conceptual Landscape Plan L-2 Tree Planting Plan L-3 Shrub Planting Plan and Irrigation Notes L-4 Landscape Structures Plan L-5 Landscape Lighting Plan XHO'U\56�27 OF Brookfield Residential TUSTIN, CA r�"�"���I� Iko i,'I!II�' FUSCOE Kevin L. Crook Architect Inc ° u v c11/04/2020 all Famiy Prom se 31 Broodwayove. Anaheim, CA92805 Homea doc.org Contact Cyntlee Aberlson HomeA'tl Orange County 24 Dcecutise Park, Suite 100 Irvine, CA 92614 Homeaidoc.org Contact: Daniel Battaglia BrookFleld Residential 3200 Park Center Dr. #1000 Costa Mesa, CA92626 www.brookfleldresidential.com Contact Cheryl Casanova Fuscoe Engineering, Inc. 16795 Von Korman Ave Irvine, CA 92606 Fuscoe.com Contact: Soqin Shim Kevin L. Crook Architect, Inc. 1360 Reynolds Ave. Suite 110 Irvine, CA 92614 ldcarch.com Contact: Jeff Addison Business: 949.660.1568 LandscapeArch ct MJS Landscape Architecture 5073d"A Newport Beach, Ca 92663 MJS-LAcom Contact Nick Lombardi Phone: 949.675.9964 RENDERING Hamily Brookfield THE HOUSE OF Kevin L. Crook „/04/2020 Architect Orange County Promise �tesiaentiai Inc ofo—g'e —Y TUSTIN, CA A-, LOT AREA 16,790 S.F. 17 FIRST FLOOR PLAN Hamily Brookfield THE HOUSE OF Kevin L. Crook „/04/2020 Architect Orange County Promise Ttesiaentiai Inc oforange County TUSTIN, CA A-2 45'a' 12'-z' J6' -1a' v.I.Cc irl , m M BEDRM GREAT RM BEDRM 2 _L� ` — IN' O PLAN 3 M BATH - ❑0'1-- ------ T� e-v a 0("' N KRCHE T EN __ BEDRM.3 COURTYARD ' (2 I Wol. ENTRY wo°sre BATH tto /Ul CORRIDOR FMILY RUOFRACECENTER resr��li - CU 11 1O UO _ — — W .C. e�av� _ CD M BATH I' yn ENTRY m ®: BATH 2 BATH 2 vb-c v_ awn scare a�ac. ENTRY gn W,I.C. le�csc. a 'II I M. BATH n KR�vHEN T __ KRCHEN �� e=van. O ` III a o.LC. e� va� n O M BEDRM PLAN 2 G2 -AT 2M. BEDRM 2 BEDRM 2 j PLAN 2 GREAT RM M. OFFICE 3EDRIA. p ------- ------------ M -T' 94-0 FIRST FLOOR PLAN Hamily Brookfield THE HOUSE OF Kevin L. Crook „/04/2020 Architect Orange County Promise Ttesiaentiai Inc oforange County TUSTIN, CA A-2 IA. BEDRIA. GREAiRM PLAN 3 �MBAiH O_ ____❑��I. ��" gT� 0 bh KRCHEN VeU s -o eye BATF WOL cic 111 UV 9—HEN PLAN 2 IA. BEDRIA. GREAiRM BEDRIA.I VU IIs o.Lc c. KRcHEN M. BATH( PLAN 2 :�ED.l11 GREAT RM MBEDRM SECOND FLOOR PLAN O O IH MBUD- 11. PLAN 1 GREAT RM KRCHEN Hamily Brookfield THE HOUSE OF Kevin L. Crook „/04/2020 Architect Orange County Promise �tesiaentiai Inc ofo—geC —Y TUSTIN, CA A-3 D.S. Ds. M ROOF PLAN D.S. Hamily Brookfield THE HOUSE OF Kevin L. Crook „/04/2020 Architect Orange County Promise �tesiaentiai Inc ofo—g'a —Y TUSTIN, CA A-4 ©=K— L. c,00cnKm -. m=. FRONT rvore. oow„:coon a�om �o:do:n a«a. REAR ELEVATION o s Hamily Brookfield THE HOUSE OF Kevin L. Crook „/04/2020 Architect Orange County Promise Residential Inc ofo—g'e —Y TUSTIN, CA A -s RIGHT COURTYARD RIGHT 11A 11 Lid +1 1111 F! 1111111111 LEFT H.j;Aid l- Family Brookfield Orange County Prom Se Residential ofo—ge County ELEVATION THE HOUSE OF R_ 1, TUSTIN, CA COURTYARD LEFT COURTYARD REAR 0 2 4 4 8 8 12 Kevin L. Crook 11/04/2020 Architect Inc ° A -s u JL DETAIL - 01 DETAIL - 05 DETAIL - 02 00 DETAIL -06 DETAILS Homi;A d l- 4mily Brookfield THE HOUSE OF RA Orange County Promise �(esiaentjai 'fo—g'o —Y TUSTIN, CA DETAIL - 07 DETAIL -04 DETAIL -08 Kevin L 11/04/2020 Architect C oo Inc A-7 0 COLOR BOARD �F p min min min C m U U O it x m DECORATIVE CERAMIC O~ x N O w C C TILE TILE wzO um�a Ox O x xxz x 30 ZC3 Z w�O � a F o O O m HOUSE OF RUTH TUSTIN, CA EXTE COLOR SCHEME STUCCO MAIN BODY 1572 STUCCO PAINT MATCH- SW7757 HIGH REF WT SHERWIN WILLIAMS STUCCO ALL WINDOW &DOOR TRIM 1572 FASCIA/ FRENCH DOORS/ SW9183 GUTTERS/DOWNSPOUTS DARK CLOVE FRONT DOOR/ SHUTTERS SW0018 TEAL STENCIL ROOF. (LOW PROFILE A") SMM8402 MALIBU SANTA CRUZ BLD DECORATIVE TILE. FD -159 MALIBU GLAZE CERAMIC TILE. CT -87 SATIN BULLNOSE TERRACOTTA PAVER. MEXICAN TILE SALTILLO ALL VINYL WINDOW FRAMES ALMOND PROJECT CREATED Planning Dept Rev 18098 4/15/2020 8/5/2020 STUCCO: OMEGA PAINT: SHERWIN WILLIAMS ROOF: EAGLE DECORATIVE TILE: ROCK MILL CERAMIC TILE: ROCK MILL TERRACOTTA CORONADO Hamily Brookfield THE HOUSE OF Kevin L. Crook „/04/2020 Architect Orange County Promise Tteslaentlal Inc oforange County TUSTIN, CA A -e EX. RESIDENTIAL BLDG. , EX. RESIDENTIAL BLDG. EX, RESIDENTIAL BLDG, EX. RESIDENTIAL RL- EX. RESDEMIAL BLDG. NOT A PART NOT A PART NOT A PART N07 A PART NOT A PART 1912 SIERRA VISTA D 1932 SIERRA VISTA DR. 1942 SIERRA VISTA DR, 1962 SIERRA VISTA DR. 1902 SIERRA VISTA DR. ARE: Soo—O]1-06,j ` Po APN: 5DD— 71—O7 APN: 5DD-071-08 APN: AD o-071—D9 �E„ APN:500—DI-05 woo1+ Exw rtrvce eo—re"cw�L ore p rz' a "„1„1 jw rz „w rz oa m o rz" _ --_---r---.---.------:-------____—o�--_-------- �� -----_ aoTc aRu �b 'z —_--��Ha Hk��e-�� Ef 11 Ex. 1111 "� APARTMENT BLDG. r} k "°F AS 1-1 LIS j NET APART PART 1881 EL CAMINO REAL wu j o EX. RESIDENTIAL BLDG. APN: 500-071-15 NOT A PART 8 1 1 C” 394 BROWNNG AVE. APN: 500—m1-11 El, —D IINIE g h Al,ET r 11 "1 r" " El —11 -- --- --- -- ISN „Poo[ D ro ma2R IT ElA"I IL �P EL CAMINO REAL 41.� I „"" INTERSTATEnags: . "l wA. s1, " a"N„A DT -NED 1N1El"111 *ALL UTILIES SERVING THE PROPERTY SHALL�—�NIP�E'EAI "L� _` „„ 11-Ipi1pry "E"Tr "„�",M�rz. ,„ ,-" u,„�<' oAE< M- P11-1 11T11E PROJECT 317E / r E uccn 41"1 u,iNia n"I BE INSTALLED UNDERGROUND a„"p „ 'ILI NI 1-1 EA11 A—E ,. -E„ 1111 1 P-1 P-1 AND P-1 ""E_ 1A ,o A- IN a aN,„R,Em, P yee EXISTING CONDITIONS PLAN „o ,p„,„,„<�EG 1-1,o„. HonXd 4milyPromise Brookfield THE HOUSE OF KA 11/03/2020 `I •_: FUSCOE Orange County oro- A—w Resider TUSTIN, CA o-7 1—F ---- ---- --- -------------- Lf I Lj I �12E �E I 11FF 1� 11 1 -1 11E Ll �E ESE FF=95.7iii 2 1121F III F FF t7t -r(t — - — - — - — - — - — - — - — - — - - — - — - — ELCAMINOREAL *ALL UTILIES SERVING THE PROPERTY SHALL BE INSTALLED UNDERGROUND PRELIMINARY GRADING AND UTILITY PLAN Hbm;��d 4milyPromise Brookfield THE HOUSE OF KA 11/03/2020 FUSCO E Orange County --g--y !,. Residential TUSTIN. CA C-2 SECTION A -A Ill 1� I—E Ell SECTION D4D 11— L Mt: 11 c� SECTION B -B SECTION C—C TYPICAL CROSS SECTIONS SECTION E -F Honi6 4mily!Promise Brookfield THE HOUSE OF KA 11/03/2020 rl*,,j FUSCOE Orange County ofo, c. -W Residential TUSTIN, CA C-3 VINES ON WALL HameA d -4mily Brookfield Orange County Promise Residential of Orange County [Separate Sd.ittall CONCEPTUAL LANDSCAPE PLAN oa e1e 2 THE HOUSE OF R -A 06'02/2020 RO IUSTIN, CA L oRCHITECT—E Home d T -4mily Brookfield Orange county Promise Residential .f Orange County EL CAMINO REAL is PROPOSED TREE LIST TREES • yaa.Rn:12 T'EE r_A Qa�mlas &e :12 —E=. iv irxantEss I:5 . myaaree xmEE :s • T:-1 —1— ma E • �s�ae. � aad � :IP • msEaSr. rvE :I • u 6,ma2 armor xunl a :5 • .== aad oix :2 I— a ora—E— -- TOTAL # of PROPOSED TREES: 41 (, TREE PLANTING PLAN 6 5 to 20 0 THE HOUSE OF USA 06'02/2020 RO TUSTIIV,CA L2 aRCH'TEcTu_ 4.. EL CAMINO REAL PROPOSED �hIII,� FM— �0 SYNTHETIC�� ^0 PErRN TO BE PERFORMED , CITY OF TUSTIN HANDMCAJP� STANDARDS FEATIoNG TOTAL LANDSCAPE AREA: 3,486 SF SYSTEM ALL SYSTEM ALL GR ES SHALL BE IRRIGATED _ . BE BUBBLER ANDIO _RIP 1... _. ,_.. WATER EFFICIENT LANDSCAPING NOTE: REAS SHALL IRRIGATED USING DRIP IRRIGATIONUTILITY SCREENING NOTE: THE FouavlNc MEASURES WILL BE INCORPORATED INTO THE PRaECT TocoNSERVE"LLY nun LocnnoranuD r�vlsE PUNS WATER. HEMCESSHALLEQIZEOATOTOC ROL IRRIGATION CYCLES ACCORDING 1. THE IRRIGAPON SYSTEM SHALL MEET IHE REQUIREMENTS OF THE CIIV6 SPECIFICIRRIGATIONREQUIRULLZEEMENTS N TO SONOMA GUIDELINES FORWATER EFFMIENTIANDSCAPES. OF ALL MAINLINE SHALL BE GusS BU Psc. ALL LITER PLANTING AREA DRAINAGE NOTE: LNESSFALLE urvaoAvxe.n e-.s� 2. THEESTIMATED APPLIED WATER USE ALLOWED FOR THE LAND—PE AREA SHALLVSHL RBEETA'SPLY.1, TH SCR ERIA OE CITY OE SONO �APLP -DDRnI—NA.T..Y.TEM.s N.U.D A.AY s PRE.-. PLA PARU-vcrvIANDT.ER. IN -AN NOT EXCEED THE DAWA CALCULATION SHRUB PLANTING PLAN AND IRRIGATION NOTES 0 5 to 20 30 HomeAid r Family Brookfield THE HOUSE OF RA 06'02'2020RO Orange Count, Promise ResidentialL-s &Or.Fg.C..Fr TU,— ' I CA ARCHITECTURE EL CAMINO REAL ®x®x®x�z®xa , WALL AND FENCE LEGEND: ®© ®®= Split Face Wall lip LANDSCAPE STRUCTURES PLAN �� 0 5 10 M 30 Home T family Brookfield THE HOUSE OF R -A 06'02'2020RO Orange County Promise Residential L -a oro—g.c—� TUSTIN, CA R'H1T,1 ,I ` �= # Homed -4 mily Brookfield Orange County Promise Residential .forange County EL CAMIND REAL do EXTERIOR LIGHTING LEGEND Tix"L111 E 111 I xxctor N.ETE .T En IT. ............. TEIT— V LIGHTING LEGEND NOTES —1— _T III N `11L I A111 LI11 NI I LL 1E IAR— — --u— IIEETT 1— 1E I IEIEI 11TIT T 1— NIT TAT -111E TIE AIEATEEE TIE— ..'EI.- - Ell 111A1 IIAI 1— IINTEI 11TIE11111 1E To, , PHOTOMETRICSTO BE PROVIDED BY ELECTRICAL ENGINEER CONSULTANT LANDSCAPE LIGHTING PLAN 6 5 lb 20 30 THE HOUSE OF KA 06/02/2020 LJ O TUSTIN, CA L-5 `a IN D S A P E —11ITFIC T111F ATTACHMENT D PLANNING COMMISSION RESOLUTION 4418 DA 2020-0002 AND DR 2020-0011 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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: 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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: 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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). 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. DocuSigned by: D3273B6D898A43D... AMY MASON Chairperson —DocuSigned by: 1 �u u Cly. I�Ji�.Q, 6w, ED45DA2623B54A5... 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. PLANNING COMMISSIONER AYES: PLANNING COMMISSIONER NOES: PLANNING COMMISSIONER ABSTAINED: PLANNING COMMISSIONER ABSENT: EDocuSigned by:1u u Cly. I�Ji�.Q, 6w� ED45DA2623654A5... JUSTINA L. WILLKOM Planning Commission Secretary Chu, Jha, Kozak, Mason (4) DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 92780 1473132.1 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 1485898.1 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF (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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 (3 0) 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 party challenging the validity or enforceability of any provision of this Agreement, the Existing Land Use Regulations, the DDA (including without limitation the Development Plan), or Entitlement Approvals for the Project ("Third Party Challenge"), 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 Party Challenge on terms that would constitute an amendment or modification of this Agreement, the Existing Regulations, or Development Plan unless such amendment or modification is approved by the City in accordance with applicable legal requirements, and City reserves its full legislative discretion with respect thereto. City shall not incur any costs or take any actions to defend such Third -Party Challenge without 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF (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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. ThLaw. 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 Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. 8.9. No Third -Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 8.10. 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF EXHIBIT A Legal Description 1941 El Camino Real, Tustin, CA 92780 THE LAND REFERRED TO IN THIS REPORT IS 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 IRV NLE'S SUBDIVISION, AS SHOWN ON A MAP RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORD MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. APN 500-071-12 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF EXHIBIT B 41 x 1941 El Camino Real 02 Ilk �y a^n = h r b ,. f t "k 4 ., 4 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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, DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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 DocuSign Envelope ID: 10EE7E12-BFEC-4ADF-853B-154084ED1ABF 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. ATTACHMENT E PLANNING COMMISSION MINUTES FEBRUARY 9, 2021 MINUTES VIDEO CONFERENCING TUSTIN PLANNING COMMISSION MEETING FEBRUARY 9, 2021 Mason "During the Statewide COVID-19 Emergency, the public is not permitted to convene in person for this public meeting. However, the public may still view and comment on the meeting as follows.": Mason To watch the meeting, the public may observe the meeting via the City's Granicus service at httl)s://www.tustinca.org/282/Meetings-Agendas or on local Cox Channel 851. Mason To comment on one or more items, you may send your comments to Plan ningCommission(o)_tustinca.org or by accessing the City's "SpeakUp" comment system as follows: 6:09 p.m Given by Mason. CALL TO ORDER: INVOCATION: All present. ROLL CALL: Commissioners Chu, Jha Chair Pro Tem Kozak— late due to technical difficulties. Chair Mason Distributed emails/ eComments to staff and Commission. PUBLIC CONCERNS: CONSENT CALENDAR: Approved the 1. APPROVAL OF MINUTES —DECEMBER 22, 2020 December 22, 2020 Minutes, as amended. RECOMMENDATION: That the Planning Commission approve the Minutes of the December 22, 2020 Planning Commission meeting, as amended. Motion: It was moved by Chu, seconded by Jha, to approve the Minutes of the December 22, 2020 Planning Commission meeting, as amended. Motion carried 3-0. Kozak was not present for this portion of the meeting, as he entered the virtual meeting late due to technical difficulties. Minutes — Planning Commission February 9, 2021 — Page 1 of 13 PUBLIC HEARINGS: Adopted Reso. 2. GENERAL PLAN CONFORMITY (GPC) 2021-0001; DEVELOPMENT Nos. 4417 & AGREEMENT (DA) 2020-0002; AND DESIGN REVIEW (DR) 2020-0011 4418. 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 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. REQUESTS: 1. GPC 2021-0001 to determine that the location, purpose, and extent of the proposed disposition of an approximate 16,790 square -foot (0.385 acre) lot 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. DA 2020-0002 to facilitate the development and conveyance of an approximate 16,790 square foot (0.385 acre) site. 3. 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. Minutes — Planning Commission February 9, 2021 — Page 2 of 13 RECOMMENDATION: That the Planning Commission adopt Resolution 4417, for GPC 2021- 0001, determining that the location, purpose, and extent of the proposed disposition of an approximately 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 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. Reekstin Presentation given. Jha Jha expressed concern with the area being poorly lit at night and asked staff if there would be lighting and security (i.e. cameras, fencing) added to the project site. He commented that he thought that this would also enhance the new building and overall look of Browning and Red Hill Avenues. Reekstin In response to Jha's concerns, Reekstin stated that lighting would be provided to ensure the site is safe and secure for both the residents and the employees at the project site. He added that there will be a wall on three (3) sides of the property and a point of contact to be provided in the event of an emergency (after hours). Reekstin was unsure if the applicant would be providing a security camera. Willkom Willkom addressed the comment on security. She commented that the facility is not an emergency homeless shelter, but more of an apartment complex. The on-site residents would be families with children who have been screened by Minutes — Planning Commission February 9, 2021 — Page 3 of 13 Family Promise. She did not anticipate security issues being a major concern knowing that staff members will be on-site for eight (8) to ten (10) hours per day and that the applicant would provide a point of contact that would be shared with the Tustin Police Department (TPD) should the need arise. Willkom also stated City staff will be working with the applicant to ensure the project site is always secure and safe. This project is a partnership with Family Promise, Home Aid, Brookfield Homes and the City, and many hours have been invested in bringing this project forward. Chu Chu expressed her concern with visitors, other than residents living on-site. She asked if the proposed project was consistent with zoning since the project is near a residential site and questioned if the facility is considered a non-profit business. Chu asked City staff if they could ensure a security camera be installed somewhere on the site because she felt it was a mixed-use project. Willkom In response to Chu's comments, Willkom stated there will be a resource center on the project site. City staff asked Family Promise to include a resource center. The idea was to connect the families with resources. Not only will the residents be utilizing the resource center but also the Tustin community (i.e. veterans, low-income families, elderly). Willkom added that it is more of a resource center versus a business, like Chu mentioned previously. The resource center will be staffed by a Family Promise Housing Navigator and other staff who will assist those who are in need. As for the security, City staff can discuss further with the applicant. Kozak Kozak added that the proposed project will be a great resource for the community and commented that the project is a compatible land use for the site and will provide much needed housing and services to families with children who are in need. He was in support of the recommended action. Mason Mason had various comments which, in general, included the following: she asked if the action tonight would be a recommendation to the City Council, if this is a resource center where people will be working; that the proposed project will not necessarily be a revolving door of folks in the community; and if the Commission agreed, and finally, could the Commission make a recommendation to the City Council as they consider the project, considering the additional information and conversation, along with the consideration that the proposal is a partnership between the City and Family Promise, in order to move the project forward. Willkom Willkom confirmed Mason's previous comments. She informed the Commission that the proposal includes a Development Agreement, which has to be approved by the City Council via Ordinance. The remaining entitlement applications would be reviewed concurrently by the City Council. Willkom reiterated that the item presented to the Commission would be a recommendation to the City Council, if the Commission approves the item. Minutes — Planning Commission February 9, 2021 — Page 4 of 13 6:51 p.m. Hurtado confirmed there were no additional comments received by the public. Motion: It was moved by Kozak, seconded by Chu, to adopt Resolution Nos. 4417 and 4418. Motion carried 4-0. Adopted Reso. 3. CONDITIONAL USE PERMIT 2020-0009 & DESIGN REVIEW 2020 - No. 4419, as 0008 amended. APPLICANT: CHRISTIAN DE ANDA 1029 E. 4TH STREET SANTA ANA, CA 92701 PROPERTY OWNER: CHRISTIAN DE ANDA 1029 E. 4TH STREET SANTA ANA, CA 92701 LOCATION: 14232 NEWPORT AVENUE ENVIRONMENTAL: This project is Categorically Exempt pursuant to section 15303 (Class 3) of the California Environmental Quality Act (CEQA). REQUEST: A request to construct and operate a 1,390 square foot restaurant (Taqueria Hoy) with a drive-thru facility and outdoor seating. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4419 approving Conditional Use Permit (CUP) 2020-0009, authorizing the establishment of a drive-thru facility and associated drive-thru signage, and Design Review (DR) 2020-0008, approving the site planning and design proposed for a new 1,390 square foot restaurant (Taqueria Hoy) and associated outdoor seating located at 14232 Newport Avenue. Daudt Daudt informed the Commission that Jha recused himself from the item due to the proximity of his business and the project site. Salman Presentation given. Mason Mason referred to the drive-thru depiction in the site plan, specifically, the menu board location. She also referred to the wall height being fairly low and wanted confirmation that the height would be elevated, which Salman stated it would Minutes — Planning Commission February 9, 2021 — Page 5 of 13 be elevated to six (6) feet eight (8) inches and will be a benefit to the nearby residents. Mason also asked her fellow Commissioners to consider keeping the drive-thru hours to 24 (on a trial basis) in order to ensure the applicant's business succeeds. Willkom Per Willkom, the Tustin City Code (TCC) limits the outdoor seating hours to 11:00 p.m., however, the drive-thru hours can be amended, if it is the desire of the Commission to allow the 24-hour operation. Willkom advised the Chair to receive input from the other Commissioners; then if they agree, amend the Conditions of Approval within Resolution No. 4419. Chu Chu echoed Mason's suggestion on the 24-hour drive-thru operation due to this being the applicant's main source of income. She suggested limiting the indoor/outdoor dining to 11:00 p.m. in order to avoid any possible noise -level issues with the nearby residents. Chu was also concerned with cars blocking the parking spaces along Newport Avenue during busy hours. She asked staff if four (4) of the parking spaces could be relocated in order to avoid them from being blocked. Willkom In response to Chu's concerns, Willkom stated City staff has worked with the applicant with several versions of the layout. There are many requirements the City imposed, including the number of cars that need to be able to be stacked, which is seven (7) cars. In addition, there is a ten (10) foot dedication that eventually, when the City is ready, the applicant will need to provide. With the ten (10) foot dedication and parking requirement, it is difficult to relocate the parking spaces to the opposite side of the site. Willkom also mentioned that City staff had worked with the Public Works Traffic Engineer and the TPD to review the internal circulation. One of the project conditions is to have an employee working the drive-thru area, during high peak hours, in orderto speed up drive-thru process and keep the vehicles circulating within the site. With the Conditions of Approval, the TPD's Traffic Division and the Public Works Department are comfortable with the layout (i.e. parking and circulation) that the applicant has proposed. Mason Mason asked for further clarification with regards to the outdoor dining hours being limited to 11:00 p.m. and staff's recommendation to extend the indoor dining to 24 hours, and the indoor capacity. Willkom Willkom mentioned the three (3) requests made by the applicant: 1) Indoor dining hours to be open until 3:00 a.m.; 2) Outdoor dining hours, to be open until 11:00 p.m. - the TCC limits the outdoor dining when the business is adjacent to residential properties; and 3) Drive-thru hours - the TCC does not limit the hours of operation, however, due to the close proximity to the residential properties, staff is Minutes — Planning Commission February 9, 2021 — Page 6 of 13 recommending hours be limited to 11:00 p.m. to be consistent with the outdoor seating hours. She added that the applicant has indicated that their other restaurants are well known for their 24-hour drive-thru operation. During Covid-19, drive-thrus have become an asset to the City since people may not dine -in. She mentioned that after Covid-19, restaurants may change the way they operate their business. Willkom concluded, that if it is the desire of the Commission, the Commission can decide whether or not they want to allow extended hours for the indoor dining and drive-thru but the hours of outdoor seating must be 11:00 p.m., per the TCC. Kozak Kozak thanked the applicant for the proposed project in order to better the community. He supported staff's recommendations. The outdoor dining hours and indoor hours made sense. Kozak suggested a six (6) month monitoring period, if the Commission agreed on allowing the drive-thru hours to operate 24 hours, then to report back to City staff. Chu Chu thanked the applicant for returning to the City of Tustin for their project. She was also in support of the project. Mason Mason asked Willkom for direction on how to allow the applicant to operate their business, while allowing amended drive-thru hours, for a period of time. Willkom Willkom stated that if it is the desire of the Commission to allow the 24-hour drive-thru operation, they could do so on a trial basis for a period of six (6) months, as long as the City does not receive many complaints. She asked the Commission to clarify the hours of operation for the indoor dining since the applicant is requesting hours be extended to 3:00 a.m. Again, she reiterated the hours of operation for the outdoor seating would have to be 11:00 p.m., at the latest. Chu Chu requested the hours of operation for the indoor/outdoor dining be 11:00 p.m. in order to avoid any noise issues (i.e. cars, voice levels), but she was in support of the drive-thru hours being 24 hours. Kozak Kozak echoed comments from Chu with respect to the 11:00 p.m. indoor/outdoor dining and 24-hour drive-thru, but would be willing to do a "test period" during the summer months and monitor the project site with the applicant. He was in support of the project with the added conditions. Mason Mason thanked Chu for her comments on the 11:00 p.m. indoor/outdoor dining hours of operation; however, staff's recommendation for the indoor dining hours would be 3:00 a.m. She recommended allowing the 3:00 a.m. indoor dining and the 24-hour drive-thru operation and if there are complaints, City staff can address at that time. Or if the Commission would be in favor of allowing staff's Minutes — Planning Commission February 9, 2021 — Page 7 of 13 recommendation but allowing a contingency that after the project has been open for six (6) months, City staff review for complaints or issues. She also asked when the project would be complete. Salman Salman did not have a project completion date. The Commission collectively agreed to the Chair's final recommendation. 7:26 p.m. Hurtado stated she had received an email from Mr. Bryan Elenes at 7:26 p.m which she immediately emailed to City staff and the Commission. Willkom Willkom shared the email from Mr. Elenes. His concerns were as follows: what type of mitigation would be in place for spillover onto Newport Avenue when the drive-thru is full — City staff is proposing a condition which would require that an employee be at the drive-thru lane during peak hours; could the homeowners be part of the planning and design process of the project — following the Commission's consideration/approval of this project, there will be a plan check process and at that time there may be minor modifications City staff can provide or look into, and if the homeowners have any concerns, they can contact Mary Salman and if City staff can accommodate, they will try to facilitate in order to resolve the issue; his concern with the large trash trucks arriving early in the morning (i.e. noise) and if the trash pick-up could be arranged for later in the day — Willkom stated that Salman can discuss with the business owner to make arrangements and if it is the Commission's desire, another condition can be added to Resolution No. 4419 as well; lastly, he asked if the residents could be provided with the six (6) month monitoring period for public comments/input — Willkom mentioned that the Commission previously mentioned the trial period of six (6) months to see how the business is operating and if there are any problems, City staff can bring them back to the Commission. Mason Mason stated she assumed the applicant would be conducting community outreach, with regards to Mr. Elenes' email comments. She was also in favor of adding the trash pick-up time to the Conditions of Approval within Resolution No. 4419. Kozak Kozak was in support of Mason's added condition previously mentioned. Daudt Daudt did ask for one (1) clarification to Mason's suggested amendments. During the monitoring period, he suggested the Commission delegate the responsibility to the Community Development Director to determine within that time frame whether or not there have been issues with noise or nuisance conditions which would mean that the item would not be returned to the Commission for reconsideration. Or, the Commission could state, as an absolute requirement, that this matter will come back to the Commission six (6) months after commencement of business operation for a report from the Minutes — Planning Commission February 9, 2021 — Page 8 of 13 Director to allow the Commission to decide whether or not they want to modify that condition. Motion: It was moved by the Chair, to approve staff's recommendation with the following amendments: 1) allowing the operator a six (6) month trial period for the 24- hour drive-thru operation to be delegated to the Director; 2) indoor dining hours to remain 24 hours; and for the business owner to arrange a later trash pick-up time. Seconded by Kozak, to adopt Resolution No. 4419, as amended. Motion carried 3-0-1 with Jha recusing himself from the item. Adopted Reso. 4. GENERAL PLAN AMENDMENT (GPA) 2019-00001 AND DESIGN No. 4420, 4421, REVIEW (DR) 2019-00019 & 4422, as amended. APPLICANT: BARAY KARIM 7 DESIGN AND DEVELOPMENT 188 TECHNOLOGY DRIVE, SUITE N IRVINE, CA 92681 PROPERTY OWNERS: CHRISTOPHER KELLSTROM 1042 SAN JUAN STREET TUSTIN, CA 92780 RONALD C. WEBBER 17092 OLIVE GROVE LANE SILVERADO, CA 92676-92719 R0001 LOCATION: 1042 SAN JUAN STREET 1052 SAN JUAN STREET (GENERAL PLAN AMENDMENT ONLY) ENVIRONMENTAL: A Mitigated Negative Declaration has been prepared in accordance with the provisions of the California Environmental Quality Act (CEQA) Article 6 of California Code of Regulations, Title 14, Chapter 3. REQUESTS: 1. GPA 2019-00001 to amend the General Plan land use designation from Community Commercial (CC) to High Density Residential (HDR) at 1042 and 1052 San Juan Street. 1052 San Juan Street is included in this application for general plan consistency only. Minutes — Planning Commission February 9, 2021 — Page 9 of 13 2. DR 2019-00019 for the building design and layout for construction of two (2) duplexes and one (1) detached single-family structure and the preservation of an existing single-family residential historic resource at 1042 San Juan Street. RECOMMENDATION: 1. That the Planning Commission adopt Resolution No. 4420 recommending that the City Council find that the Mitigated Negative Declaration is adequate for GPA 2019-00001 for 1042 and 1052 San Juan Street and DR 2019-00019 for the proposed project at 1042 San Juan Street. 2. That the Planning Commission adopt Resolution No. 4421 recommending that the City Council approve GPA 2019-00001 to change the properties' General Plan Land Use Designation from Community Commercial (CC) to High Density Residential (HDR) at 1042 San Juan Street and 1052 San Juan Street. 3. That the Planning Commission adopt Resolution No. 4422 recommending that the City Council approve DR 2019-00019 for building design and site layout for two (2) duplexes and one (1) single family residence and the preservation of an existing single-family historic resource at 1042 San Juan Street. Reekstin Presentation given. Jha Jha suggested adding a condition requiring that residents renting or purchasing the units must use their carport/garage for parking and not storage being that there is already an issue with street parking. Chu Chu asked if City staff knew if the applicant was intending to sell or lease the units. Reekstin Per Reekstin, the proposed units would all be rental units. There is no subdivision being proposed. He was unsure if any units would be owner occupied. Mason Mason agreed with Jha's concerns previously mentioned and she asked if a condition could be added to Resolution No. 4422. Willkom Per Willkom, the TCC does require garages to be used for parking of vehicles; however, if it is the Commission's desire to add a condition it can be specified within the Conditions of Approval that the garage is to be used for parking of vehicles and limited storage, provided that cars can still be parked in the garage. Minutes — Planning Commission February 9, 2021 — Page 10 of 13 8:04 p.m. Hurtado confirmed there were no additional public comments. Chu Chu suggested parking permits be required in order to assist with the already current parking issue. Mason In response to Chu's previous comment, Mason stated that parking permits could be a requirement in the future, but that it is not a requirement now. Willkom Willkom provided further clarifications regarding carports and garages. The TCC requires covered spaces and in the case of this project, the nature of the proposal is a duplex. City staff encouraged the applicant to design the project with garages as staff felt that garages would be more appropriate than a carport. As far as parking and storage of materials inside a garage, the TCC states garages must be used for parking of vehicles and limited storage is acceptable provided vehicles can still be parked within the garage. If it is the desire of the Commission, City staff can add a condition that clearly identifies garages must be used for parking of vehicles. Motion: It was moved by Jha, with the suggested added condition requiring vehicle parking in the garage, seconded by Chu, to adopt Resolution Nos. 4420, 4421 and 4422, as amended. Motion carried 4-0. REGULAR BUSINESS: Adopted Reso. 5. 2021 HISTORIC AND CULTURAL RESOURCES ADVISOR WORK No. 4416. PROGRAM RECOMMENDATION: That the Planning Commission, acting as the Historic and Cultural Resources Advisor (HCRA) to the City Council, adopt a 2021 Work Program per Resolution No. 4416. Reekstin Presentation given. Chu Chu commended Reekstin for the presentation. She had no further comments. Jha Jha asked Mason why the Commission was appointed this role and inquired as to why there was a need for six (6) hours of training. He voiced his opinion regarding the webinars currently being offered not being related to Tustin. Jha would prefer having the training on Tustin's history. Reekstin In response to Jha's previous comments, Reekstin stated that the City Council appointed this role to the Commission because they felt the Commission was well versed in historic preservation issues and what happens in our city. The City Council wanted to consolidate some city functions and at one time there Minutes — Planning Commission February 9, 2021 — Page 11 of 13 was a separate committee that worked on historic preservation issues and the City Council made the decision to give the Planning Commission the opportunity to carry out these duties. As part of that, the City Council wanted the Commission to feel comfortable with historic preservation as a topic so they instituted the requirement of training. The City is also required to have the Commission trained pursuant to the requirements of the Certified Local Government (CLG) program, which is run by the State of California and City staff is required to encourage the Commission to provide training opportunities related to historic preservation if the City wants to remain in the CLG program. Reekstin further explained that the CLG program recognizes the cities throughout the State that value historic preservation. Tustin was the first city in Orange County to become certified, and City staff takes pride in knowing what the City has done with historic preservation in valuing the Old Town area. He added that there are some grants available to CLG members each year and the City has taken advantage of those types of grants in the past (i.e. surveys, access to expertise from the State Office of Historic Preservation). Reekstin concluded that the CLG program is more of a recognition program that recognizes cities that have adopted an ordinance for historic preservation and those that have completed a survey of a property, etc. Willkom Willkom added that with this new role, City staff plans on bringing the Commission to the Historic District to educate the Commission directly about the City's resources. Due to Covid-19, a lot of the programs are not taking place. City staff is hoping, in the near future, they can provide some training and workshops that relates more to the Tustin community. Kozak Kozak thanked Reekstin for the presentation and for his knowledge and passion for historic preservation. Mason Mason asked for the total cost of a bust and also about the status of the survey and the firm the City is working with. She also mentioned the great opportunity to be a part of the HRC and she commended Reekstin and Dove for their part with the entire historic preservation process. Willkom Per Willkom, the total cost for the bust is $10,000 with donations from individuals for the base of the bust, which is somewhat costly. Last year, the bust program did not carry out due to lack of donations. In addition, she stated that due to Covid-19, the survey was delayed, but the firm (ARG) is completing all of the necessary work — ARG has visited all of the resources that may or may not be eligible in the inclusion of the survey. Right now, ARG is writing the narrative and context statement and they should be complete in the near future which will be shared with the Commission. 8:28 p.m. Hurtado confirmed that there was no public input received. Minutes — Planning Commission February 9, 2021 — Page 12 of 13 Motion: It was moved by Chu seconded by Kozak, to adopt Resolution No. 4416. Motion carried 4-0. Received & filed. 6. CITY OF TUSTIN COMMUNITY DEVELOPMENT 2020 YEAR IN REVIEW RECOMMENDATION: That the Planning Commission receive and file the report. DiLeva Presentation given. STAFF CONCERNS: Willkom City staff is continuing to work on the Housing Element (HE) Update as well as in the process of working on community outreach (i.e. email, dedicated HE web page) and currently, there is an on-line survey for residents to complete. This will assist City staff in obtaining input on what is important to the community (i.e. vision, goals to be included in the HE). Willkom encouraged the viewers and audience members to visit the City's website and complete the survey. COMMISSION CONCERNS: Chu Chu commended DiLeva for the Year in Review presentation and to staff for all of their hard work. Jha Jha had no concerns. Kozak Kozak thanked staff for the meeting presentations and reports. On January 19, 2021, he participated in the OCTA Citizens Advisory Committee meeting and Supervisor Wagner's Third District meeting. Mason Welcome Irma Huitron! 8.48 p.m. ADJOURNMENT: The next regular meeting of the Planning Commission is scheduled for Tuesday, February 23, 2021. Minutes — Planning Commission February 9, 2021 — Page 13 of 13 ATTACHMENT F CORRESPONDENCE RECEIVED Hurtado, Vera From: noreply@granicusideas.com Sent: Sunday, February 7, 2021 2:24 PM To: Hurtado, Vera; Dil-eva, Adrianne; Reekstin, Scott; Salman, Mary; Dove, Elaine; E -Comments Subject: New eComment for Planning Commission Meeting New eComment for Planning Commission Meeting Guest User submitted a new eComment. Meeting: Planning Commission Meeting Item: PUBLIC CONCERNS: eComment: Concerns: amount of activity generated by operating a 5 to 7 unit shelter and the impact to the immediate area. Traffic cars/pedestrians, noise, general safety of the area. Lack of studies View and Analyze eComments This email was sent from https://granicusideas.com Unsubscribe from future mailings 12-1 From: Megan Clunes To: Plannina Commission Subject: Resolution 4417 Date: Tuesday, February 9, 2021 11:34:11 AM I am a Tustin resident and live on Red Hill, less than one full mile from the proposed transitional housing for families experiencing or at risk of homelessness. According to the Regional Housing Needs Assessment 2021-29 Tustin is in need of a decent amount of housing for very low to low income residents. When people experiencing homelessness are moved into housing there is a 100% reduction in arrests, 78% reduction in ambulance rides, and 43% reduction in ER visits. By adopting Resolution 4417 the city will not only be reducing the costs associated with having people unsheltered on the streets but will also be providing these families in need with the ability to succeed and eventually move into permanent housing. Please adopt this resolution which will give Tustin families in need a hand up (not a hand out) to reach self- sufficiency. Thanks so much. Megan Clynes Douthit William G. Steiner Public Affairs/Governmental Relations 8143 E. Cheshire Road Orange, CA 92867 714-287-9604 westeiner1937@email.com July 27, 2020 OC Health Care Agency 183 - HCA/CONTRACT SERVICES 405 W 5TH ST. ROOM 600 SANTA ANA CA 92701 Re: Family Promise of Orange County Grant Application Bid 042-CO29320-BD I am pleased to write this letter of support for Family Promise of Orange County (FPOC). I have been involved in Orange County social services for over 40 years in terms of my role with Orangewood Children's Home and as a member of the OC Board of Supervisors. I have known of Family Promise for many years and have been impressed by the multiplicity and unique way this organization serves families experiencing homelessness in Orange County. As a member of the Family Promise OC Advisory Counsel and through my congregation's involvement, I have learned about the effort to create additional transitional housing and a state - of -art Navigation Center for families who apply for shelter and housing. Through its House of Ruth project, Family Promise of Orange County has partnerships with the City of Tustin, HomeAid Orange County and Brookfield Homes as the builder of the 7 -unit complex. The timeline of the House of Ruth project perfectly matches that described in the RFP. If approved, this grant application will provide funds to build a multifaceted Navigation Center, that will serve as a point of entry into all resources needed to access emergency housing and create stability for many families with children who are homeless. This Navigation Center is a one stop opportunity to stabilizing the family's future and provide the tools and assistance to access housing options. It is a pleasure for me to recommend without reservation this fine organization as a recipient of the Bid 042-CO29320-BD for Capital Funding for Homeless Service Programs. I want to personally thank you for your thoughtful consideration. Sincerely, w-, G-� , William G. Steiner August 10, 2020 To whom it may concern: Tustin Presbyterian Church has been working with Family Promise since its inception in our area. We continue to host families each year for three to five weeks. We have bought and maintain equipment to provide comfort and privacy for the families and volunteers who stay with us. We partner with a local synagogue to provide meals. Four years ago, one of our members, a long-time supporter of Family Promise, approached our mission committee with the dream of raising money to buy/build transitional housing in our area. Our congregation raised over $54,000 in less than a year and we applied for, and received, a matching grant of $50,000 from the Presbytery of Los Ranchos for the project, which we named the House of Ruth. With the help of the leadership of Family Promise, we approached the City Council of Tustin and we were able to get them to partner with us on this project, by providing land on which we can build the transitional housing. All of this from a congregation of 224 members. This is just a glimpse of our support for the work of Family Promise. The work that this organization does is well worth our time and resources. The lives they touch by giving families a safe place to land as they fall into homelessness goes a long way toward helping them not get swept into the terrible cycle of despair and loss that envelopes families that get broken up in the shelters or through life on the street. I can think of no better program that allows families the chance to stay together, kids to stay in their schools, and support that allows them to get back into a home and back to a sense of normalcy. Of all the organizations that we support, Family Promise is at the top of our list in effectiveness. Please know that they have our strongest support and we invite others to join in this good work. If you would like to hear this from me personally, please call me at 636-484-0544. This is my personal cell number. Sincerely, The Reverend Dr. Steven Ranney Pastor, Tustin Presbyterian Church (714-544-7070) 225 West Main Street, Tustin, CA 92780-4319.714/544-7070 • FAX 714/544-1948 • www.tustinpresbyterian.org HomeAid Orange County 1130 North Citrus Street, Orange, CA 92867 949.220.1136 EIN:33-0568079 August 12, 2020 County of Orange/Health Care Agency Contract Services Division 405 W. 5th Street, Suite 600 Santa Ana, CA 92701-4637 Dear HCA, HomeAid Orange County is writing this letter of support for the Family Promise, House of Ruth development in the City of Tustin. HomeAid Orange County is thrilled to partner with Family Promise to provide critically needed housing for families experiencing homelessness. Our organization has already recruited Brookfield Residential to be our lead builder on the development, working with us currently on the pre -development of the project. HomeAid's mission is to end homelessness by building new lives for homeless families and individuals through housing and community outreach. For the past 30 years, HomeAid has been the leader in developing the basic need of shelter in partnership with other nonprofits. HomeAid's role as the developer is to work directly with nonprofit partner agencies to develop the housing needed to end homelessness for families or individuals. HomeAid recruits a homebuilder to take the lead as builder captain to work alongside the team as the project moves forward. This involves each phase of development from land acquisition, funding, exterior design, entitlements, construction, interior design and landscaping. By utilizing the model of partnerships, volunteerism, and in-kind donations, HomeAid is able to reduce the overall cost. On February 18, 2020, the Tustin City Council unanimously approved the Disposition and Development Agreement or 'DDA' with Family Promise. By the terms of the agreement, the City of Tustin will convey the vacant 18,800 sq. ft. lot to Family Promise under a 30 -year forgivable Promissory Note. Family Promise has 18 months to raise the funds to build the project and then 24 months for the construction. The development timeline is as follows: DEVELOPMENT PHASE Design Entitlements & Permits Construction Fundraising Campaign Dedication and Grand Opening BEGIN COMPLETE January 2020 June 2020 June 2020 May 2021 May 2021 April 2022 June 2020 April 2022 April 2022 May 2022 Thank you in advance for your consideration. With Sincere Gratitude, Gina R. Scott, Executive Director HomeAid Orange County Office of the City Council August 12, 2020 Cyndee Albertson, Executive Director Family Promise of Orange County PO Box 6225 Orange, CA 92863 RE: HOUSE OF RUTH LETTER OF SUPPORT Dear Ms. Albertson: I am pleased to write a "Letter of Support" for the Family Promise House of Ruth project, a seven - unit Transitional Housing Project. I am also delighted to know Family Promise is partnering with HomeAid Orange County, bringing over 30 years of experience and a record of accomplishment building homeless housing. Homelessness is an epidemic across our country, and it requires strong partnerships such as this one and support from all of us to address this issue. I am proud to represent a city that has consistently supported and addressed the needs of the homeless in our community. In the last 20 years, we have facilitated the development of the 262 -bed Village of Hope (2008), the 26 -bed Tustin Veterans Outpost (2016), and more recently the 57 -bed Tustin Temporary Emergency Shelter (2019). And now in 2020, the City Council has taken another step towards serving homeless families by entering into a Disposition and Development Agreement with Family Promise for the House of Ruth project. The House of Ruth project will not only provide transitional housing for seven families, but the proposed Navigation Center for Families will serve as additional support and outreach to other families in our community experiencing homelessness. The needs are great and Family Promise has recognized that by committing to operate a center with case managers on-site seven days a week. Your proposal, which includes access to a shower and free use of washers and dryers for those unhoused families who have not transitioned to shelter, offers much needed additional services. Thank you for your concern for caring for those who find themselves homeless and your creative approach to offering solutions through the House of Ruth project. I look forward to hearing about your successful application for funds request to the County of Orange. Please feel free to reach out to me for any other support I can provide. Sincerely, Letitia Clark Mayor Pro Tem Mayor Dr. Allan Bernstein • Mayor Pro Tem Letitia Clark • Charles E. "Chuck" Puckett • Barry W. Cooper • Austin Lumbard 300 Centennial Way • Tustin, California 92780 • www.tustinca.org Office of the City Manager August 12, 2020 County of Orange Health Care Agency Contract Services Division 405 W. 5th Street, Suite 600 Santa Ana, CA 92701-4637 Re: Bid Number: 042-CO29320-BD This letter shall serve as documentation that the City of Tustin has full knowledge and approves of Family Promise of Orange County's plans to build a seven -unit Transitional Housing Project, known as the House of Ruth within Tustin City limits. This project includes a Community Navigation Center to provide additional outreach and support for families experiencing homelessness. The City of Tustin, along with HomeAid Orange County and their Builder Captain, Brookfield Homes, are Family Promise's partners in the project. The Tustin City Council unanimously approved the Disposition and Development Agreement (DDA) with Family Promise on February 18, 2020. Under the terms of the DDA, the City of Tustin will execute a 30 -year forgivable Promissory Note with Family Promise and convey a vacant 16,790 square foot parcel for the project. Prior to the property being conveyed, Family Promise has 18 months to raise the necessary funds and 24 months after conveyance to complete construction. Family Promise is providing quarterly reports to the City on the progress of their capital campaign. To date, Family Promise has met its obligations under the DDA, including the submission of their Development Application. Brookfield Homes will be the builder of this facility. The City has previous experience with this builder, and we have confidence in their expertise and ability to bring this project to fruition. The inclusion of the Community Navigation Center, which is the main component of the Family Promise application to OCHCA is a critical part of this entire project proposal as it will be a fundamental front line of support and assistance for those families experiencing homelessness from Tustin and surrounding communities. Should you have any questions about this project, please contact Jerry Craig at 714.573.3121 or jcrai e,tustinca.org. Sincerely, *run >. {1"qtr Matthew S. West City Manager 300 Centennial Way • Tustin, California 92780 • www.tustmca.orQ • 7I4 -573-30I2 FOR YOUTH DEVELOPMENT FOR HEALTHY LIVING FOR SOCIAL RESPONSIBILITY City of Tustin, Planning Commission 300 Centennial Way Tustin, CA 92780 February 9, 2021 RE: HomeAid Orange County in Partnership with Family Promise House of Ruth Project Dear Planning Committee, The YMCA of Orange County is writing today in support of HomeAid Orange County in their partnership with Family Promise and the House of Ruth Project proposed in the city of Tustin. As a business that has operated in the city of Tustin for nearly 30 years, we believe in the mission of HomeAid Orange County and their well-planned and structured solution to a county -wide epidemic, homelessness. As a family -centered organization we, more than most, understand the need for families to have an opportunity to live in a safe and stable environment. A place where they can focus on regaining their health, strengthening their finances and transitioning into permanent housing. We have partnered with HomeAid Orange County for 10 years on outreach efforts to support community residents in their time of need. Some of those efforts include, but are not limited to, diaper drives for families who cannot afford diapers for their babies, sending homeless children to camp, and more. Through all our collaborative efforts HomeAid Orange County remains hyper -focused on delivering the most effective solutions to provide help to those most in need. Sincerely, & A N;'� Jeff McBride President and CEO YMCA of ORANGE COUNTY 13821 Newport Ave., Suite 200, Tustin CA 92780 (714) 508-7647 1 ymcaoc.org ATTACHMENT G ORDINANCE NO 1512 DEVELOPMENT AGREEMENT 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: 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 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 92780 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 (SCAG), 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 Proj ect; 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: 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. 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 I 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. 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 (3 0) 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 party challenging the validity or enforceability of any provision of this Agreement, the Existing Land Use Regulations, the DDA (including without limitation the Development Plan), or Entitlement Approvals for the Project ("Third Party Challenge"), 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 Party Challenge on terms that would constitute an amendment or modification of this Agreement, the Existing Regulations, or Development Plan unless such amendment or modification is approved by the City in accordance with applicable legal requirements, and City reserves its full legislative discretion with respect thereto. City shall not incur any costs or take any actions to defend such Third -Party Challenge without 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. NIISCELLANEOUS 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 Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. 8.9. No Third -Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 8.10. 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 Parry") 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 ATTACHMENT H CITY COUNCIL RESOLUTION NO. 21-17 DESIGN REVIEW RESOLUTION NO. 21-17 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING 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 City Council of the City of Tustin does hereby resolve as follows: SECTION I. The City Council 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. Resolution No. 21-18 Page 2 D. 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. E. Pursuant to Section 9272 of the TCC, the City Council finds that the location, size, architectural features, and general appearance of the proposed development will not impair the orderly and harmonious development of the Resolution No. 21-18 Page 3 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. F. That a public hearing was duly called, noticed, and held on said application on February 9, 2021, by the Planning Commission. G. 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). The City Council hereby approves DR 2020-0011, subject to the conditions attached hereto as Exhibit B. Resolution No. 21-18 Page 4 PASSED AND ADOPTED by the City Council of the City of Tustin at a regular meeting on the 2nd day of March, 2021. LETITIA CLARK Mayor ERICA N. YASUDA City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, ERICA N. YASUDA, the undersigned, hereby certify that I am the City Clerk of the City of Tustin, California; that Resolution No. 21-18 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 2nd day of March, 2021. CITY COUNCIL AYES: CITY COUNCIL NOES: CITY COUNCIL ABSTAINED: CITY COUNCIL ABSENT: ERICA N. YASUDA City Clerk EXHIBIT B RESOLUTION NO. 21-18 CONDITIONS OF APPROVAL 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. (1) 1.5 As a condition of approval of DR 2020-0011 / DA 2020-0002, the applicant 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. 21-18 Page 2 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. 21-18 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. 21-18 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. *** 3.12 Security camera(s) shall be installed at the entrance of the building. Such camera(s) shall remain in place and in good working order at all times to the satisfaction of the Chief of Police. Exhibit B Resolution No. 21-18 Page 5 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 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. Exhibit B Resolution No. 21-18 Page 6 (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 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 Exhibit B Resolution No. 21-18 Page 7 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, 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 Exhibit B Resolution No. 21-18 Page 8 (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. (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 Exhibit B Resolution No. 21-18 Page 9 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 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. Exhibit B Resolution No. 21-18 Page 10 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. (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. 21-18 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. 21-18 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. 21-18 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. 21-18 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.