HomeMy WebLinkAboutPC RES 4436 DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
RESOLUTION NO. 4436
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF TUSTIN RECOMMENDING THAT THE CITY
COUNCIL APPROVE DESIGN REVIEW 2021-0002,
DEVELOPMENT AGREEMENT 2021-0001 , SUBDIVISION
2021-0001/VESTING TENTATIVE TRACT MAP NO.
17822, AND A DENSITY BONUS AND VOLUNTARY
WORKFORCE HOUSING AGREEMENT INCLUDING A
CONCESSION/INCENTIVE FOR A REDUCTION IN
PRIVATE AND COMMON OPEN SPACE AND A WAIVER
OF PARK FEES FOR AFFORDABLE UNITS, FOR A
MIXED-USE PROJECT CONTAINING 137 RESIDENTIAL
UNITS AND 7,000 SQUARE FEET OF RETAIL
COMMERCIAL SPACE AT 13751 AND 13841 RED HILL
AVENUE WITHIN THE RED HILL AVENUE SPECIFIC
PLAN
The Planning Commission of the City of Tustin does hereby resolve as follows:
I. The Planning Commission finds and determines as follows:
A. That a proper application has been submitted by Craig
Swanson, on behalf of Irvine Asset Group, LLC
("Applicant"), for a Residential Allocation Reservation
(RAR) application to the City, requesting an allocation of
114 base residential units (does not include density bonus
units) for the development of a mixed-use project
containing 137 residential units, including a twenty (20)
percent density bonus based upon the provision of 6 very-
low income rental units, and 7,000 square feet of retail
commercial space at 13751 and 13841 Red Hill Avenue,
consisting of two lots containing approximately 3.39 acres
("Project").
B. On November 12, 2020, the Community Development
Director conducted a preliminary review and, in accordance
with the RHASP, approved the 114 RAR, pending timely
submittal of an application for the Project Entitlements.
C. In January 2021 , Applicant submitted an application for
Project Entitlements, which includes the following requests:
1 . Design Review (DR) 2021-0002 for the design and
site layout of a mixed-use development consisting of
137 residential units, including six (6) very-low
income rental units, 7,000 square feet of retail
commercial space, at-grade parking containing 227
parking spaces, and associated improvements.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 2
2. Development Agreement (DA) 2021-001 to facilitate
the development of the Project site, and to govern
the allocation of the 114 RAR units and the provision
of public benefits to the City.
3. Subdivision (SUB) 2021-0001/ Vesting Tentative
Tract Map (TTM) No. 17822 for commercial
condominium, merger, and re-subdivision purposes.
4. Density Bonus and Voluntary Workforce Housing
Agreement to memorialize compliance with and the
granting of concessions/waivers under the density
bonus law, and the implementation of the City's
Voluntary Workforce Housing Ordinance, including:
(a) the provision of six residential units (five percent
of the 114 base residential units) restricted to rental
and occupancy by very low-income households; (b)
a twenty percent density bonus (i.e., 23 additional
units); (c) a state-mandated reduction in parking
ratios; (d) the reduction of RHASP private and
common open space requirements; and (e) the
payment to City of a Workforce Housing Incentive
Program In-Lieu Fee totaling $737,922.00 (Seven
Hundred Thirty-Seven Thousand Nine Hundred
Twenty Two Dollars).
D. That the Project site is zoned as and has a General Plan
land use designation of Red Hill Avenue Specific Plan
(RHASP).
E. Design Review. Pursuant to the RHASP and Section 9272
of the Tustin City Code (TCC), Sections 6.7.1 A, B and
Section 4.4.3 (16) of the RHASP 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, the
occupancy thereof, or the community as a whole. In making
such findings, the Planning Commission has considered at
least the following items:
Findings Per Tustin City Code Section 9272:
1 . Height, bulk, and area of buildings. The height and bulk
of the proposed project is appropriate in size and scale
with surrounding buildings in that the proposed height for
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 3
Buildings A, B and C along Red Hill Avenue will be four
stories and 50-feet overall with the exception of three
elevator towers and respective roof parapets that
surrounds the top of each building. With these projections
the buildings will range in height from 53'-4" to 59'0".
Buildings D1, D2 and D3 located at the rear of the project
site will be 36-feet in height inclusive of architectural
projections. The project is appropriately scaled,
consistent with the RHASP and relates to and respects
adjacent development in the surrounding area.
2. Setbacks and site planning. The proposed project
balances both retail commercial and residential uses
through quality site design, visually interesting facades
and will include public improvements that are
complimentary to the project and will serve as an
enhancement to the surrounding area. The project
meets or exceeds the required setbacks in the front,
side, street side and rear as stated in the RHASP and
provides pedestrian accessible amenities adjacent to
the street that allow for additional pedestrian activities.
Step-backs on the upper levels of the project provide
additional articulation to the building fagade and add
visual interest while breaking up the overall bulk and
massing of the building as viewed from the street.
Associated project features such as at-grade, on-site
parking, interior courtyards, enhanced pedestrian
plazas, landscaping, and expanded pedestrian
walkways and other amenities serve to enhance the
overall appearance and experience of the project.
3. Exterior materials and colors. The use of related
colors, architectural details and varying but
complimentary materials such as porcelain tile, stucco,
smooth lap siding, board & batten siding, aluminum
storefronts, metal awnings with translucent panels, and
frameless glass and metal railings further enhance the
design and provides a sense of place.
4. Type and pitch of roofs. The project incorporates
varying roof forms and has a relatively flat pitch which
contributes to the contemporary architectural style. All
of the project roofs contain parapet screening for roof
top equipment and will allow for future photovoltaic
installations. The roof area of Building B will contain a
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 4
well-integrated 1,817 square foot roof deck amenity
area for the project.
5. Size and spacing of windows, doors, and other
openings. The project design is both cohesive and
varying with respect to architectural style, architectural
details, windows, doors, colors, and materials which is
consistent with the main design objectives within the
RHASP. The proposed spacing of windows, doors and
other openings are appropriate and scaled and placed
within the front, side and rear elevations of the building.
6. Towers, chimneys, roof structures, flagpoles, radio
and television antennae. Three (3) proposed towers
within the project will contain elevator equipment within
each of the four (4) story main buildings fronting along
Red Hill Avenue (i.e. Buildings A, B and C). Each tower
will measure 59'-0" at the highest point which is allowed
subject to design review. The towers add a
complimentary, but dramatic architectural element to the
design and identity of the project.
7. Location, height, and standards of exterior
illumination. As conditioned, the project will comply with
site illumination standards and confine lighting to the
property.
8. Landscaping, parking area design, and traffic
circulation. The project incorporates a combination of
drought-tolerant landscaping that is complimentary to the
overall architecture, site layout and courtyards and plazas
amongst all of the buildings within the project.
Landscaping proposed along Red Hill Avenue and San
Juan Street will act as a buffer between pedestrian activity
and the adjacent streets and provide screening for
required ground-mounted equipment.
9. Location and appearance of equipment located
outside an enclosed structure. As proposed and
conditioned, roof mounted and/or ground mounted
equipment shall be screened with either roof parapets
that are integral and compatible with the buildings'
architecture and/or designated landscaping.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 5
10. Location and method of refuse storage. As
conditioned, the project will comply with refuse storage
and other waste requirements and standards.
11. Physical relationship of proposed structures to
existing structures in the neighborhood. Refer to
finding #12.
12.Appearance and design relationship of proposed
structures to existing structures and possible future
structures in the neighborhood and public
thoroughfares. The project implements the overall
vision of the RHASP in that it provides enhanced
streetscape improvements and incorporates public
plaza areas with pedestrian amenities fronting Red Hill
Avenue and San Juan Street. The project is comprised
of a total of six (6) buildings, each within the maximum
allowable height and each with articulation, undulations
and step-backs on the upper levels which reduces the
appearance of uniform massing. The project
incorporates a complimentary blend of high-quality
building materials and varying roof forms which adds to
the visual interest and identity of the project. The
surrounding area to the project site is a combination of
one-, two- and three-story buildings with single-family,
multiple-family and/or commercial uses. The three (3)
tallest buildings are situated along Red Hill Avenue,
while the three (3) shorter buildings are located at the
rear of the site and adjacent to the Tustin High School
which is reflective of the surrounding residential
neighborhood and future mixed use and/or commercial
use along Red Hill Avenue. As proposed, 6 of the 10
flexible format retail units (i.e. live-work units) are
situated closest to San Juan Street which will serve as
a buffer from the adjacent and existing single-family and
multiple-family residential uses and the commercial
components of the project.
13. Proposed signage. As conditioned, the project will
comply with signage requirements contained within the
Tustin City Code and RHASP.
14. Development Guidelines and criteria as adopted by
the City Council. The project complies with Design
Criteria contained within Chapter 5 of the adopted
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 6
RHASP as indicated in findings 1-6, 8 and 12.
Findings for All New Development Projects per RHASP
Sections 6.7.1 A:
15.The development is consistent with the overall
vision, goals, and intent of the RHASP. The proposed
project is a mix of residential and commercial retail uses
which is consistent with the goals of the Red Hill Avenue
Specific Plan (RHASP). The combination of uses will
foster economic development and support housing
opportunities within the area which has not experienced
any significant commercial or residential development
for some time. The 7,000 square feet of retail
commercial uses on the ground level, the flexible format
retail units and the 137 residential units above to
commercial component provides an extension of the
existing commercial uses to the south and east. Project
is also compatible and sensitive to existing residential to
the north and northeast of the project site.
16.The development is consistent with the policies and
intent of the Development Plan (RHASP Chapter 3),
including the Urban Design plan (RHASP Section
3.4). The project provides a complimentary mix of
commercial and retail uses in an integrated, pedestrian-
friendly environment. The mixed-use concept in the
RHASP is intended to expand and enhance commercial
opportunities to serve a primarily local customer base.
As proposed, the project furthers this intent and will
physically and functionally integrate land uses in a
manner that will be complimentary to existing uses in
the surrounding area. Proposed streetscape
improvements including expanded amenity areas,
landscaped medians and parkways along with a Class
II bike lane within the public right-of-way along Red Hill
Avenue will further the intent of the urban design plan
within the RHASP. Gateway signage proposed at San
Juan Street and Red Hill Avenue will facilitate to the
creation of a distinct sense of place which is lacking
within the area.
17.The Project, including the proposed uses and
requested entitlements, comply with the Permitted
Land Use and Activities Table (RHASP Table 4.1)
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 7
and complements and contributes to the project
area. The proposed project is a mix of residential and
commercial retail uses which is consistent with the goals
of the Red Hill Avenue Specific Plan (RHASP). Refer
also to findings 12, 15 and 16.
18.The development substantially complies with or has
obtained approval of a modification to conformance
with the Commercial and/or Mixed-Use
Development Standards (RHASP Chapter 4). The
vertical mixed-use project contains a combination of
retail commercial and residential and conforms to the
development standards contained within the mixed-use
section of the RHASP. No modifications are proposed.
The project includes ten (10)flexible format retail or live-
work units that provide for active commercial frontage at
the ground level and does not conflict with other uses in
the area. Refer also to findings 1-14.
19.The development substantially complies with or has
obtained approval of a modification to conformance
with the Commercial and/or Mixed-Use Design
Criteria (RHASP Chapter 5). The vertical mixed-use
project contains a combination of retail commercial and
residential and conforms to the design criteria contained
within the mixed-use section of the RHASP. No
modifications are proposed. Refer to findings 1-6, 8 and
12.
20.Compliance or modification thereto with applicable
Development Standards and Design Criteria is
demonstrated and ensured through Design Review
of the project site plan, building elevations, floor
plan, parking plan, landscaping plan, lighting plan,
access plans, refuse plans, and any other
applicable plan(s) or document(s). Through design
review during the Residential Allocation Reservation
(RAR-2020-0001) application/initial phase of the
project, the proposed project was analyzed and
reviewed and through this process has demonstrated
compliance with all applicable development standards
and design criteria. Refer also to findings 1-6, 8, 12 and
15 -18.
21. Required parking for the Project is provided entirely
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 8
on-site. The project provides a total of 227 on-site
parking spaces which exceeds that which is required
under the State Density Bonus Law for affordable
housing. The parking is located entirely within the
project boundaries and is situated behind the three (3)
taller buildings (i.e. Buildings A, B and C) along Red Hill
Avenue and San Juan Street which is consistent with
the RHASP.
22.The development demonstrates high-quality
architectural design and site planning and reflects
the nature of the site and the surrounding area
through the following:
a. Incorporating roof forms and facades that provide
building articulation, create visual interest, and
reduce the appearance of uniform building massing.
Refer to findings 1-22.
b. Creating a design that is both cohesive and varying
with respect to architectural style, architectural
details, windows, doors, colors, and materials. Refer
to findings 1-22.
c. Facilitating pedestrian orientation through building
placement, building scale, and architectural design.
Refer to findings 1-22.
d. Ensuring associated elements including parking,
service areas, landscaping, lighting and pedestrian
access, and amenities are functional and serve to
enhance the overall appearance and experience of
the Project. Refer to findings 1-22.
e. Siting and designing structures that relate to and
respect adjacent development and sensitive land
uses. Refer to findings 1-22.
23.The development is supported by existing
infrastructure or will be supported by infrastructure
improvements paid for by the Applicant. As
conditioned, the project will be supported by existing
infrastructure or required infrastructure improvements as
described in the Infrastructure Construction and
Reimbursement Agreement.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 9
24.The Applicant has agreed to enter into a mutually
agreeable Development Agreement. As conditioned,
the applicant has agreed and entered into a Development
Agreement with the City of Tustin for this project as
required in the RHASP.
25.The Project impacts are assessed through the
approved RHASP Program EIR or through
subsequent environmental documentation in
compliance with the CEQA guidelines. The project
was analyzed using both the Final Program EIR for the
RHASP and a supplemental Addendum, prepared by
the Lead Agency (City) in compliance with CEQA
Sections 15162 and 15168. The Addendum is
appropriate pursuant to State CEQA Guidelines Section
15164 because none of the conditions identified in
Section 15162 that would trigger the need to prepare a
subsequent or supplemental EIR have occurred and
because the proposed project is a later activity within
the scope of the RHASP Program EIR pursuant to
Section 15168.
Findings for Mixed Use Development per RHASP
Sections 6.7.1 B.-
26.
:26.The Project has complied with the RAR application
process as provided in RHASP Section 6.7.2
(Reservation Allocation Reservation Process and
Findings) and units are available within the
applicable area. In November 2020, City Staff made
the requisite findings and approved RAR-2020-0001 for
the allocation of 114 units, which was related to the
proposed project. The RHASP Plan allocated a total of
500 units within the area which identified 395 units north
of I-5 freeway and 105 units south of the I-5 freeway.
The Residential Allocation Reservation request of 114
base residential units for the proposed project is within
the established thresholds for the RHASP Program
Environmental Impact Report and supplemental
addendum prepared for the project.
27.The Project, including its proposed uses and
requested entitlements, comply with the Permitted
Land Use and Activities Table (RHASP Table 4.1)
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 10
and complements and contributes to the project
area. The City encourages the development of mixed-
use projects within the RHASP area to maximize
development and redevelopment potential for the area.
The proposed is a vertical mixed-use project with retail
commercial on the ground level and three (3) levels of
exclusively residential above and is consistent with the
overall purpose and intent and development regulations
contained within the Specific Plan. Refer also to findings
12, 15, 16, 17 and 20.
28.The development substantially complies with the
Mixed-Use Development Standards (RHASP
Chapter 4). The project adheres to the mixed-use
development standards contained within the RHASP.
The provision of less than the required private and
common open space per units within the project which
will be permitted by the City as a waiver/concession due
to the provision of six (6) affordable housing units
through the State of California Density Bonus Law. The
project includes a total of 137 residential units with a
variety of on-site amenities, including an open roof deck
on Building B and open courtyards and pedestrian
plazas along Red Hill Avenue and San Juan Street.
29.The development substantially complies with the
Mixed-Use Design Criteria (RHASP Chapter 5). The
vertical mixed-use project contains a combination of
retail commercial and residential and conforms to the
design criteria contained within the mixed-use section of
the RHASP. No modifications are proposed. Refer to
findings 1-6, 8 and 12.
30.The development provides a sufficient mix of uses,
allocated as follows:
a. Commercial space is sufficient and placed along
the principal street frontage of Red Hill Avenue.
The project includes 7,000 square feet of retail
commercial and two (2)flexible format retail units (i.e.
live-work) along Red Hill Avenue as well as an
additional six (6) flexible format retail units at the
corner of San Juan Street and Red Hill Avenue. The
combination of commercial space is sufficient and
appropriately placed within the project.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 11
b. Residential units are exclusively located on
upper floors in the case of vertical mixed-use or
on non-principal street frontages, such as San
Juan Avenue, Mitchell Avenue or Walnut Avenue,
or are internal to a development site. The project
is a vertical mixed-use project with six (6) buildings
that comply with the maximum allowable height of
four (4) stories and 50-feet in overall height with
allowable projections that extend up to a maximum
height of 59'-0" on Buildings A, B and C. The project
fronts along Red Hill Avenue and contains retail
commercial on the ground level with three (3) levels
of residential exclusively located above the
commercial. Additional residential are also
contained within Buildings D1, D2 and D3 located at
the rear of the site and are also exclusively located
on the upper level.
31.The development is consistent with the City's
affordable housing requirements. As conditioned, the
project will comply with the City's Voluntary Workforce
Housing Incentive Program as contained within TCC
Chapter 9B.
32.The development provides the following public
benefits:
a. Public Amenities. Installation of two pedestrian
plazas; one at the main entryway/drive aisle that
flanks either side of the main drive aisle and a
secondary plaza at the southwest corner of San
Juan Avenue and Red Hill Avenue.
b. Off-site Parking. Provision of twelve (12) on-street
vehicular parking spaces immediately adjacent to
Red Hill Avenue in front of the Project site.
c. Gateway Signage. Construction and installation of
gateway signage designating the corridor as the
beginning of the Red Hill Avenue Specific Plan area
at the southwest corner of San Juan Street and Red
Hill Avenue.
d. Public Art. Public art that may consist of a mural or
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 12
other type of art, subject to Community Development
Director review and approval.
33.The development facilitates multi-modal
transportation through building siting and design
that provides convenient access for transit users,
pedestrians, and bicyclists. Where a development is
adjacent to an existing or planned transit stop,
building siting and orientation provide convenient
access to transit users. The project includes
pedestrian amenities adjacent to Red Hill Avenue that
include bike racks and/or street furniture and
landscaping to interest pedestrian and/or alternative
transit activity. The project includes an 18-foot wide
pedestrian amenity setback along Red Hill Avenue that
provides a connection with the public realm and
encouraged and desired for the Specific Plan area.
34.The Applicant shall submit building plans to the
Building Division to fully construct the Project in a
timely manner within the period specified in the
proposed Development Agreement. As conditioned,
the project will comply with timing of construction of the
project as stipulated within the Development Agreement.
35.The Applicant has sufficiently demonstrated its
level of development experience to the City. Irvine
Asset Group has assembled a team of experts,
including but not limited architects, traffic
engineers, civil engineers, public engagement and
art consultants which collectively have the
experience to design project that meets the vision
and standards set forth by the RHASP.
Findings for Flexible Format Retail per RHASP Section
4.4.3 (16)
36.The establishment of Flexible Format Retail will not
conflict with not inhibit other uses in the area where
the project is proposed. The flexible format units will
provide opportunity for residents to utilize a space
located on the ground floor for commercial use, which
will integrate into the pedestrian mixed-use design of the
project.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 13
37.All commercial components of the Flexible Format
Retail shall be built to commercial standards. The
space will be constructed to commercial standards
which will be checked during the plan check process.
38.The use of Flexible Format Retail shall provide for
active commercial frontage at the ground level.
Refer to finding #36.
F. Development Agreement. Approval of the Development
Agreement is supported by the following findings:
1 . The Project is consistent with the objectives, policies,
general land uses and programs specified in the
General Plan and the RHASP in that mixed-use
developments that include a combination of commercial
retail and/or office on the ground floor and residential
uses on the upper floors in a vertical mixed-use format
are permitted uses within the RHASP area and promotes
citywide goals of encouraging economic development,
business attraction and development within the RHASP.
2. The Project is compatible with the uses authorized in
the RHASP in that mixed-use urban development is
envisioned in the area and similar and compatible uses
exist and are envisioned within close proximity of the
project site.
3. The Project is in conformity with the public necessity,
public convenience, general welfare, and good land
use practices in that the development agreement
incorporates public benefits in the form of two (2)
pedestrian plazas, off-site parking on Red Hill Avenue,
gateway signage at the southwest corner of San Juan
Street and Red Hill Avenue, public art, and payment of
park impact fees to fund park improvements within the
RHASP and will provide options for housing to the City's
housing stock..
4. The Project will not be detrimental to the health, safety,
and general welfare. The Project will comply with the
RHASP, the TCC, and other regulations to ensure that
the Project will not be detrimental in any way.
5. The project will not adversely affect the orderly
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 14
development of property in that the proposed project is
orderly, well designed, and equipped with the necessary
infrastructure and amenities to support future residents
and businesses in the RHASP.
6. The Project will have a positive fiscal impact on the City
in that the provisions of the proposed DA and conditions
of approval will ensure that the project will have a positive
fiscal impact on the City.
G. Tentative Tract Map. Approval of Vesting Tentative Tract
Map (TTM) No. 17822, as conditioned, is supported by the
following findings:
1 . The proposed map is consistent with the Tustin
General Plan, the RHASP, the Zoning Code, TCC
Chapter 3, the Subdivision Map Act, and other
applicable provisions of the TCC.
2. The design or improvement of the proposed
subdivision is consistent with the Tustin General Plan
and the RHASP, the Zoning Code and other applicable
provisions of the TCC.
3. The site is physically suitable for the proposed type and
density of development.
4. The design of the subdivision and the proposed
improvements will not cause substantial environmental
damage or substantially and avoidably injure fish or
wildlife or their habitat.
5. The design of the subdivision or the type of
improvements will not cause serious public health
problems.
6. The waste discharge from the proposed subdivision
into a community sewer system will not result in or add
to violations of existing requirements prescribed by the
Regional Water Quality Control Board.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 15
H. Density Bonus and Voluntary Workforce Housing.
1 . Chapter 9B of Article 9 of the TCC ("Voluntary
Workforce Housing Ordinance") requires the
development of housing affordable to households of
extremely low, very low, low, and moderate incomes
within new residential development, including mixed-
use residential development, when a developer makes
the voluntary election to request the benefit of
Residential Allocation Reservations (RARs) pursuant to
the RHASP.
2. All residential developments subject to the Voluntary
Workforce Housing Ordinance are eligible for density
bonuses and other incentives, and for waivers and
reductions in development standards identified by State
law as set forth in Government Code Section 65915 et
seq. and Chapter 1 of Article 9 of the TCC (collectively,
"Density Bonus Law").
3. The Density Bonus Incentive and Voluntary Workforce
Housing Agreement between Applicant and the City
includes the following obligations, density bonus,
concessions/incentives, and waivers.
a. Affordable Housing and Density Bonus. Applicant
will construct six residential units (five percent of the
114 base residential units) restricted to rental and
occupancy by very low-income households allowing
for an additional density of twenty (20) percent (or,
23 additional units), for a Project total of 137 total
residential units.
b. Parking. Pursuant to the Density Bonus Law, the
following parking requirements will apply to the
Project: one (1) onsite parking space for each studio
to one-bedroom unit, and one and one-half (1 .5)
onsite parking spaces for each two to three-bedroom
units.
c. Open Space. The Project will receive a reduction of
the RHASP private and common open space
requirements.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 16
d. Park Fees. The City shall waive the payment of park
impact fees for the six residential units restricted to
rental and occupancy by very low-income
households.
e. Payment of In-Lieu Fee. Applicant shall pay to City
a Voluntary Workforce Housing Incentive Program
In-Lieu Fee totaling $737,922.00 (Seven Hundred
Thirty-Seven Thousand Nine Hundred Twenty-Two
Dollars).
I. That a public hearing on the matter was duly called, noticed,
and held for said application on July 27, 2021, by the
Planning Commission.
J. On October 16, 2018, the Tustin City Council certified the
FPEIR for the RHASP. The FPEIR is a Program EIR under
the California Environmental Quality Act (CEQA). The FPEIR
considered the potential environmental impacts associated
with the development of the RHASP. The Project proposes
the development of a site with uses that are consistent with
the uses approved in the RHASP, General Plan, and zoning
designations for the site and are also within the density and
development assumptions that were evaluated in the
RHASP EIR for the site. As a result, the City of Tustin, as
the Lead Agency, has prepared an Addendum to the
RHASP Program EIR pursuant to the requirements of the
California Environmental Quality Act (CEQA, Public
Resources Code §§ 2100, et seq.) the regulations
promulgated thereunder (14 California Code of Regulations
§§ 15000, et seq., CEQA Guidelines).
K. The Planning Commission hereby recommends that the City
Council approve Design Review 2021-0002, Development
Agreement 2021-0001 , Subdivision 2021-0002, Subdivision
2021-0001/Vesting Tentative Tract Map No. 17822, and a
Density Bonus and Voluntary Workforce Housing
Agreement including a concession/incentive for a reduction
in private and common open space, for a mixed-use project
containing 137 residential and units and 7,000 square feet
of retail commercial space at 13751 and 13841 Red Hill
Avenue within the Red Hill Avenue Specific Plan, subject to
the recommended conditions contained in Exhibit A
attached hereto.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 17
PASSED AND ADOPTED at a regular meeting of the Tustin Planning
Commission held on the 27th day of July, 2021 .
DocuSigned/by,
�
D327386D898A43D...
AMY MASON
DocuSigned by: Chairperson
J( u� C_�. (n,i,Q,Q, 040
ED45DA2623854A5...
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 Planning Commission of the City of Tustin, California; that
Resolution No. 4436 duly passed and adopted at a regular meeting of the Tustin Planning
Commission, held on the 27th day of July, 2021 .
PLANNING COMMISSIONER AYES: Chu, Hiquchi, Kozak, Mason (4)
PLANNING COMMISSIONER NOES: Mello (1)
PLANNING COMMISSIONER ABSTAINED:
PLANNING COMMISSIONER ABSENT:
E3DocuSignedby:
3tk . C_�. OU&04
ED45DA2623854A5...
JUSTINA L. WILLKOM
Planning Commission Secretary
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
EXHIBIT A
CONDITIONS OF APPROVAL
DESIGN REVIEW 2021-0002, DEVELOPMENT AGREEMENT 2021-0001 AND
SUBDIVISION 2021-0001/TENTATIVE TRACT MAP 17822
13751 & 13851 RED HILL AVENUE
GENERAL
(1) 1.1 The proposed project shall substantially conform with the submitted plans
for the project date stamped ' 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).
(1) 1.2 Approval of Design Review (DR) 2021-0002 shall become null and void
unless permits for the proposed project are issued and substantial
construction isunderway within sixty (60) days of recordation of the Final
Map or within twelve (12)months of this approval, whichever comes first,
unless otherwise provided for by Development Agreement (DA) 2021-
0001 . Time extensions may be considered if a written request is received
by the Community Development Department within thirty (30) days prior to
expiration.
(1) 1.3 Unless otherwise specified, the conditions contained in this Exhibit shall be
complied with as specified, subject to review and approval by the
Community DevelopmentDepartment.
(1) 1.4 Approval of DA 2021-0002, SUB 2021-0001/TTM 17822 and DR 2021-
0002 are contingent upon the applicant and property owner signing and
returning to the Community Development Department a notarized
"Agreement to Conditions Imposed"form and the applicant and/or property
owner signing and recording with the County Clerk Recorder a notarized
"Notice of Discretionary Permit Approval and Conditions ofApproval" 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 Any violation of any of the conditions imposed is subject to the issuance
of an Administrative Citation pursuant to TCC Section 1162(a).
(1) 1.6 The applicant shall be responsible for costs associated with any necessary
code enforcement action, including attorney's fees, subject to the
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 19
applicable notice, hearing, and appeal process as established by the City
Council by ordinance.
(1) 1.7 As a condition of approval of DA 2021-0001 , SUB 2021-0001/TTM 17822
and DR2021-0002, the applicant shall agree, at its sole cost and expense,
to defend, indemnify, and hold harmless the City, its officers,
employees, agents, andconsultants, 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 otherdecision-
making body, including staff, concerning this project. The Cityagrees to
promptly notify the applicant of any such claim or action filed against theCity
and to fully cooperate in the defense of any such action. The City may, at
itssole cost and expense, elect to participate in the defense of any such
action underthis condition.
(1) 1.8 All activities shall comply with the City's Noise Ordinance.
(1) 1.9 The applicant shall comply with executed DA 2021-0001.
(1) 1.10 In the case of any conflict between these conditions of approval and the DA,
the DA between the City of Tustin and Developer shall govern.
PUBLIC BENEFITS/DEVELOPMENT AGREEMENT
(****) 2.1 Prior to the issuance of the final certificate of occupancy, the Developer
shall construct and install all project signage (i.e. Red Hill Avenue Specific
Plan (RHASP) gateway entry signage, monument and directional
signage) which shall be reviewed under separate permit and are not part
of the project approval.
(***) 2.3 The DA between the City of Tustin and the Developer shall be signed and
recorded once the DA becomes effective. Any future change in the
ownership structure of the project to individual condominium ownership
shall require an amendment to the DA, as determined by the City.
(***) 2.4 The Voluntary Workforce Housing Incentive Program Agreement (i.e.
Housing Agreement), in accordance with the City's Voluntary Workforce
Housing Incentive Program/Ordinance 1491 , shall be executed and
recorded between the City of Tustin and the Developer prior to the
issuance of building permits. Said agreement shall be recorded against
the entire property.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 20
(***) 2.5 Prior to the issuance of the demolition permit, the Developer shall submit
plans to the Community Development Director for fencing or other
temporary enclosureto shield the project site from pedestrian and vehicular
view on Red Hill Avenue, San Juan Street, and the alleyway along the
south property line for review and approval. Such fencing or enclosure
shall remain in place until the project is completed. Said fencing shall be
routinely inspected and repaired or replaced asnecessary to keep the site
clean, orderly and secured throughout the duration ofthe project.
VESTING TENTATIVE TRACT MAP 17822
(1) 3.1 Within twenty-four (24) months from tentative map approval, the applicant
shall record with appropriate agencies a Final Map prepared in accordance
withsubdivision requirements of the TCC, the State Subdivision Map Act, and
applicable conditions contained herein unless an extension is granted pursuant
to Section 9323of the TCC. The Final Map shall be submitted prior to the
expiration of the Tentative Map for review, processing, and recording prior
to the expiration of the Tentative Map. Time extensions shall be in
conformance with the provision of the TCC and State Subdivision Map Act.
(1) 3.2 The subdivider shall comply with all applicable requirements of the State
Subdivision Map Act, and the City's Subdivision Ordinance, the TCC,
applicable City guidelines and standards and applicable mitigation
measures, project design features and policies, plans and procedures
identified and other agreements withthe City unless otherwise modified by
this Resolution.
(1) 3.3 Prior to recordation of the final map, the applicant is required to execute a
subdivision and monumentation agreement and furnish improvement and
monumentation bonds, all on forms acceptable to the City.
(1) 3.4 At plan check, the applicant shall submit an 8 '/2" x 11" street address map
exhibit to the Public Works Department for review and approval. The address
map exhibit shall be in portable document format (PDF) and shall include the
site plan, foot print of building(s), and streets.
(1) 3.5 The applicant shall satisfy dedication and/or reservation requirements as
applicable, including, but not limited to, dedication in Fee Title of all required
street rights-of-way; dedication of all required flood control right-of-way
easements, anddedication of vehicular access rights, sewer easements, and
water easements defined and approved as to specific locations by the City
Engineer (at no cost to the City) and/or other agencies.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 21
(1) 3.6 CADD Requirements - In addition to the normal full-size map and plan
submittal, all Final Maps and plans including, but not limited to, tract maps,
parcel maps, right-of-way maps, records of survey, public works
improvements, private infrastructure improvements, final grading plans, and
site plans shall be submittedto the Public Works Department in computer
aided design and drafting (CADD) format to the satisfaction of the City
Engineer. The standard file format is AutoCAD Release 2009, or latest
version, having the extension "DWG". All layering and line type conventions
are AutoCAD-based (latest version available upon request from the Public
Works Department). The CADD files shall be submitted to the City at the time
plans are approved, and updated CADD files reflecting "as built" conditions
shall be submitted once all construction has been completed. No project
bonds will be released until acceptable "as built" CADD files have been
submitted to the City.
USE RESTRICTIONS
(***) 4.1 The project shall include one hundred thirty-seven (137) residential units
with common and private open space including two (2) pedestrian plazas,
private courtyards, co-working space, fitness center, leasing office,
swimming pool, clubroom, mail lounge, bistro/gaming garden/dog run and
roof deck (on Building B-only) on an approximately 3.38-acre site.
(4) 4.2 All parking spaces shall be maintained as shown on the approved "Site
Plan (Sheet A-1 .2)" Any changes to the number, location, or size of
parking spaces shall be reviewed and approved by the Community
Development Director.
(4) 4.3 During retail-commercial activities, the gates in front of the designated
parking area shall remain open to minimize any queueing issues in
accordance with the Revised Parking Study and Parking Management
Plan.
(4) 4.4 The parking spaces located along the alleyway shall be signed with
decals noting it for resident or guest parking in accordance with the
Revised Parking Study and Parking Management Plan. The alleyway
behind the parking stalls shall be signed and striped as a designated fire
lane.
(4) 4.5 The proposed twelve (12) temporary on-street public parking spaces shall
be time restricted and available to the public as stated in the Revised
Parking Study and Parking Management Plan. No overnight parking shall
be permitted within this area.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 22
(***) 4.7 All deliveries and loading shall take place on-site within the project and
not along Red Hill Avenue or San Juan Street. Said loading zone shall be
designated andstriped on private property.
(***) 4.8 The applicant shall install one (1)Automatic License Plate Reader(ALPR)
at the main project entrance off of Red Hill Avenue subject to the approval
of the City of Tustin Police Department.
(***) 4.9 Public art shall be provided by the applicant for the project in accordance
with the RHASP as specified in the DA.
(***) 4.10 A master sign program shall be submitted for the project and shall be
subject to review and approval by the Community Development
Department.
(***) 4.11 In accordance with Section 5.4.3 of the RHASP, landscaping shall be
placed so that it does not interfere or restrict emergency access.
(1, 6) 4.12 All landscaping must comply with the City's Water Efficient Landscape
Ordinance.
(1) 4.13 Per RHASP Section 4.4.3, a minimum ten (10) percent of the total
commercial gross lot size shall be permanently landscaped with a variety
of live landscape, hardscape materials and other design elements (i.e.
fountains, sculptures, planters, decorative rock, etc.) For purposes of the
water efficiency calculation, permanent landscaping shall consist of
landscaping at the ground level. Rooftop landscaping and landscaped
areas in parking lots can also be counted towards meeting the required
landscape coverage.
(1) 4.14 No outdoor storage shall be permitted during grading or building stages
except asapproved by the Community Development Director.
CONDITIONS. COVENANTS & RESTRICTIONS (CC&R'S)
(1) 5.0 The project may be subdivided into "Master Retail Condominium(s)" and
a "Master Residential Condominium". The Master Residential
Condominium may be further subdivided into separate individual
"Residential Sub-Condominiums". There may be one (1) Master
Residential Condominium, up to nine (9) Master Retail Condominiums,
and 137 Residential Sub-Condominiums.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 23
(1) 5.1 Prior to the transfer of title to the first Master Condominium, Master Covenants,
Conditions, and Restrictions ("MCC&Rs") shall be submitted to and
approved by the Community Development Department and City Attorney's
Office. Costs for such review shall be borne by the subdivider.
(1) 5.2 MCC&Rs submitted to the City for review shall contain a table itemizing
each of the requirements identified herein and the page/paragraph where
they are addressed in the MCC&Rs.
(1) 5.3 The approved MCC&Rs shall be recorded with County Recorder's Office
prior to the transfer of title to the first Master Condominium. A copy of
recorded MCC&Rs shall be submitted to the Community Development
Department after recordation.
(1) 5.4 No Master Condominium shall be transferred unless a master owner's
association has been legally formed with (i) the right to assess all Master
Condominiums and (ii) the obligation to operate and maintain all mutually
available features of the development including, but not limited to,
common area, amenities, landscaping and utilities.
(1) 5.5 The MCC&Rs shall include, but not be limited to, the following
provisions:
a. The City shall be included as a party to the MCC&Rs for
enforcement purposes of those MCC&R provisions in which the City
has interest as reflected in the following provisions. However, the
City shall not be obligated to enforce the MCC&Rs.
b. The requirement that master association bylaws be established.
C. Provisions for effective establishment, operation, management,
use, repair, and maintenance of all common areas and facilities
including common area, landscaped areas, walls and fences, (i.e.,
walkways, sidewalks, courtyards, driveways), lighting, recreation
building and swimming pool facilities and furnishings, awnings,
trash enclosures, water quality management plan BMPs and private
utilities, if any, shall be established inthe MCC&Rs.
d. Private areas within the common area shall be illustrated on an
'Exclusive Use Area Exhibit" and shall be made part of the MCC&Rs
and shall specify those portions of the common area that are
allocated for the exclusive use of one owner. The MCC&Rs shall
include provisions for authorized uses and structures, access,
maintenance, and restrictions in the exclusive use areas.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 24
Provisions for maintenance of the exclusive use areas and the
remainder of the common area shall be set forth in the MCC&Rs.
e. Membership in the master association shall be inseparable from
ownership in individual Master Condominiums.
f. Architectural controls shall be provided and may include, but not be
limited to, provisions regulating architectural features, exterior
finishes, roof materials, fences and walls, balconies, accessory
structures such aspatios, sunshades, trellises, gazebos, awnings,
exterior mechanical equipment, television and radio antenna,
consistent with the Tustin City Code.
g. Maintenance standards shall be provided for applicable items listed
in Section C above in the MCC&Rs. Examples of maintenance
standards are shown below.
1. All common area landscaping and private areas visible from
any public way shall be properly maintained such that they are
evenly cut, evenly edged, and free of debris and weeds. All
trees and shrubs shall be trimmed so they do not impede
vehicular or pedestrian traffic. Trees shall be pruned so they do
not intrude into neighboring properties and shall be maintained
so they do not have droppings or create other nuisances to
neighboring properties. All trees shall also be root pruned to
eliminate exposed surface roots and damage to sidewalks,
driveways, and structures.
2. All private drive aisles, sidewalks, and other common areas
shall be maintained so that they are safe for users. Significant
pavement cracks, pavement distress, excessive slab
settlement, abrupt vertical variations, and debris on travel ways
shall be removed or repaired promptly.
3. Common areas shall be maintained in such a manner as to
avoid the reasonable determination of a duly authorized official
of the City that a public nuisance has been created by the
absence of adequate maintenance such as to be detrimental to
public health, safety, or general welfare.
i. The master owner's association approval of exterior improvements
requiring a building permit shall be obtained prior to requesting a
building permit from the City of Tustin Community Development
Department. All plans for exterior improvements shall conform to
requirements set forth by the City and the MCC&Rs.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 25
j. A "Parking and Circulation Exhibit" shall be made part of the
MCC&Rs and shall be enforced by the master owner's association.
In addition to the exhibit, provisions regarding parking shall be
included in the MCC&Rs including the following (it being understood
that the defined terms used in the MCC&Rs will vary from those used
below):
1 . A total of 227 parking spaces shall be available onsite for
theproject and shall be made available and be permanently
maintained. A total of 167 parking spaces shall be provided
for the Master Residential Condominium at a ratio of 1 .22
spaces per Residential Sub-Condominium based upon the
California State Housing Bonus Density Law. A total of 32
parking spaces shall be available for the Master Retail
Condominium(s). Any changes to the number of parking
spaces provided shall be subject to the review and approval
by the Community Development Department. All parking
spaces shall comply with Tustin City Code standards.
2. Residents shall not store or park any non-motorized
vehicles,trailers or motorized vehicles that exceed 7 feet
high, 7 feet wide, and 19 feet long in any parking space,
driveway or driveaisle except for the purpose of loading,
unloading, making deliveries or emergency repairs except
that the master owner's association may adopt rules and
regulations to authorize exceptions.
3. Residents shall park vehicles in designated spaces. Storage
of personal items may occur in the garages only to the
extent that vehicles may still be parked within the required
garage spaces. Storage is also permitted within designated
residential storage areas.
4. The master owner's association shall be responsible
for enforcing all parking regulations in the project. The
proposed MCC&Rs shall include provisions requiring
the master owner's association to develop and adopt
an enforcement program for parking regulations within
the development which may include measures for fire
access and enforcement by a private security
company.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 26
5. The alleyway adjacent to the project shall be marked
and signed as a designated fire lane behind the
proposed parking spaces.
k. Maintenance of all common areas, drive aisles, etc., shall be by the
master owner's association.
I. Television and radio antennas shall be installed in accordance with
the requirements of the Tustin City Code.
m. All utility services serving the site shall be installed and maintained
underground.
n. The master owner's association shall be required to file the names,
addresses, and telephone numbers of at least one member of the
master owner's association Board and, where applicable, a manager
of the project before January 1st of each year with the Community
Development Department for the purpose of contacting the
association in the case of emergency or in those cases where the City
has an interest in MCC&R violations.
o. The master owner's association shall be responsible for establishing
and following procedures for providing access to public utilities for
maintenance of their facilities within the project area, subject to those
agencies' approval.
p. No amendment to alter, modify, terminate, or change the master
owner's association's obligation to maintain the common areas and
the project perimeter wall or other MCC&R provisions in which the
City has an interest, as noted above, or to alter, modify, terminate, or
change the City's right to enforce maintenance of the common areas
and maintenance of the project sound wall, shall be permitted without
the prior written approval of the Community Development
Department.
HOMEBUYER NOTIFICATION
(1) 6.1 Prior to the first conveyance of a Residential Sub-Condominium, the
subdivider shall submit to the Community Development Department for
review and approval a homebuyer notification document that includes, but
is not limited to, the notifications listed below. The notification document
shall be signed by each Residential Sub-Condominium homebuyer prior to
the transfer of the applicable Residential Sub-Condominium, and a copy of
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 27
each signed notification shall be provided to the Community Development
Department.
A. A notice that the Orange County Transportation Authority (OCTA)
and the California Department of Transportation (Caltrans) have
released a Project Study Report (PSR) proposing to improve
Interstate 5 (1-5) between the EI Toro "Y" area near Interstate 405 (1-
405) and State Route 55 (SR-55), in the cities of Irvine and Tustin.
The proposed improvements include the addition of a general-
purpose lane in each direction on the mainline freeway through the
project limits, plus additional ramp lanes and auxiliary lanes at some
locations. A copy of the PSR shall be made available to potential
buyers for review
B. A notice identifying units that are adjacent to aboveground utilities or
structures (such as light standards and fire hydrants), and identifying
the type of structures and their locations.
C. A notice indicating that any use of a residence for a business shall
be subject to the City's Home Occupation Ordinance and will require
zoning clearance and a business license.
D. A notice indicating that the project is a mixed-use project. The notice
shall further indicate that the project contains 137 residential units,
7,000 square feet of commercial retail space and ten (10) flexible
format retail space units; two (2) flex units on the ground level facing
the main drive aisle off of Red Hill Avenue; two (2) flex units on the
ground level adjacent to Red Hill Avenue and six (6) flex units at the
corner of Red Hill Avenue and San Juan Street. Flexible format retail
units shall allow for commercial or residential uses at these locations
in accordance with the Red Hill Avenue Specific Plan.
E. A notice that all units include upgraded air filtration systems which
require regular maintenance in accordance with manufacturer's
specifications for optimal performance.
SITE AND BUILDING DESIGN
(4) 7.1 Project signage (gateway entry, wall, monument and directional signage)
shall be reviewed under separate permit and are not part of the project
approval.
(4) 7.2 Applicant and owner are responsible for ensuring that information
contained in construction drawings is consistent among architectural,
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 28
structural, grading, electrical, mechanical, plumbing, fire, utility and public
improvement plans as wellas other construction drawings.
(4) 7.3 Project materials shall comply with those identified in the approved plans
and are subject to field verification. 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 timeof plan check based on the proposed
materials.
(4) 7.4 All mechanical and electrical equipment shall be adequately and
decoratively screened. The screen shall be included as an element of
the overalldesign of the project and blend with architectural design of the
building. All telephone and electrical boxes shall be identified on the
construction plans. Electrical transformers located adjacent to Red Hill
Avenue and San Juan Streetshall be both painted to blend with the
adjacent building and be screened by adequate landscaping; together
paint and landscaping shall be provided to minimize visual impacts of the
equipment.
(4) 7.5 Balcony run-off shall be integrated into the building structure and storm
drain system. Balcony drain water shall not drain down the side of
balconies and/or building exterior.
(4) 7.6 Construction drawings shall specify use of anti-graffiti products for
treatment of both sides of the wall along the western most property line
which separates the bistro/gaming garden/dog run amenity area within
the project from the TustinHigh School ball fields.
LANDSCAPING
(1, 4) 8.1 At plan check, complete detailed landscaping and irrigation plans for all
landscaping areas are required, consistent with the approved landscape
plans, City Council Ordinance 1465, adopted Guidelines for
Implementation of Tustin's Water Efficient Landscape Ordinance and
Tustin City Code Section 9266e. The plans shall include the following:
A. Include a summary table identifying plan materials. The plant table
shall listbotanical and common names, sizes, spacing, location, and
quantity of the plant materials proposed.
B. Show planting and berming details, soil preparation, staking, etc. The
irrigation plan shall show location and control of backflow prevention
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 29
devices, pipe size, sprinkler type, spacing, and coverage. Details for
all equipment must be provided.
C. Show all property lines on the landscaping and irrigation plans, public
right- of-way areas, sidewalk widths, parkway areas, and wall
locations.
D. The Community Development Department may request minor
substitutionsof plant materials or request additional sizing or quantity
of materials duringplan check.
E. Add a note that coverage of landscaping and irrigation materials is
subject to inspection at project completion by the Community
Development Department
F. Turf is unacceptable for grades over 25 percent. A combination of
planting materials shall be used. On large areas, ground cover alone
is not acceptable.
G. Shrubs shall be a minimum of five (5) gallon size and shall be placed
a maximum of five (5) feet on center. Other sizes and spacing may be
permitted subject to approval of the Community Development
Department.
H. Ground cover shall be planted eight (8)to twelve (12) inches on center,
or as approved by the Community Development Department.
I. Fences, wall, and equipment areas shall be screened with walls,
vines, combination of planting materials and/or trees.
J. All plant materials shall be installed in a healthy vigorous condition
typical tothe 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.
K. Landscape adjacent to the right-of-way within the flexible amenity
setback area (i.e. 18-feet from the curb) shall be in compliance with the
requirements of the RHASP.
L. Landscaping at the project entry shall not limit sight distance of vehicles
and pedestrians entering and exiting the site.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 30
(1, 4) 8.2 The applicant shall install landscaping and irrigation in accordance with
the approved landscape plans, prior to issuance of a certificate of
occupancy for the building immediately adjacent to the landscape. The
property owner and Association shall be responsible for maintaining
landscaping in accordance with the approved landscape plans. Dead
plants shallbe replaced by the property owner or Association with the same
species type and size identified in the approved landscape plans.
(1, 4) 8.3 All trees adjacent to the property line with Tustin High School within the
fireworks display zone shall be trimmed annually at least seven (7) days
prior to the City's July 4th Fireworks event.
NOISE
(1) 9.1 At plan check, a noise analysis shall be provided to ensure compliance
with the Tustin Noise standards.
(1) 9.2 In accordance with the submitted exterior noise and exterior fagade
acoustical analysis (dated December 21 , 2020), the project shall be
constructed with appropriate sound attenuation to achieve the noise level
standards pursuant to the TCC.
ORANGE COUNTY FIRE AUTHORITY
(1, 5) 10.1 Prior to Final Map approval, the applicant shall submit a Fire Master Plan
and Final Tract Map for review and pay all fees associated therewith.
(1, 5) 10.2 Prior to issuance of building permits, the applicant shall submit plans for
residential fire sprinklers, sprinkler monitoring system and fire alarm
system. A detailed plan of the roof deck on Building B shall be included with
the plans to clarify the occupancy and alarm and/or sprinklers for the roof
deck.
(1, 5) 10.3 Prior to commencement of construction, applicant shall attend a pre-
construction meeting with an OCFA inspector.
WATER QUALITY/DRAINAGE
(1) 11.1 This development shall comply with all applicable provisions of the City of
Tustin Water Quality Ordinance and all Federal, State, and Regional Water
Quality ControlBoard rules and regulations.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 31
(1) 11.2 Prior to issuance of any grading permit, the applicant shall submit for
approval by the Community Development and Public Works Department,
a final Water Quality Management Plan (WQMP). The WQMP shall identify
Low Impact Development(LID) principles and Best Management Practices
(BMPs) that will be used on-siteto 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) ofstructural BMPs.
(1) 11.3 Prior to submittal of a Final Water Quality Management Plan (WQMP), the
applicant shall submit a deposit of $2,700.00 to the Public Works
Department for the estimated cost of reviewing the WQMP.
(1) 11.4 Prior to issuance of the first grading permit, 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. Thesedocuments 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 WQMP.
(1) 11.5 Prior to issuance of any grading permit, the applicant shall submit a copy
of the Notice of Intent (NOI) indicating that coverage has been obtained
under the National Pollutant Discharge Elimination System (NPDES) State
General Permitfor Storm Water Discharges Associated with Construction
Activity from the State Water Resources Quality Control Board.
(1) 11.6 Prior to approval of the final WQMP, the applicant shall perform percolation
testing at the location of the proposed BMPs, currently obstructed by
existing buildings. Revised BMP sizing calculations shall be provided using
the proven infiltration rate with an appropriate factor of safety applied, as
specified in the Technical Guidance Document (TGD). BMP selection and
design shall be revised, as necessary.
(1) 11.7 Final hydrology plans shall be submitted to the City for review based
upon the project's final design calculations and project elements.
STREET IMPROVEMENTS
(1) 12.1 Prior to issuance of the first permit, the applicant shall submit engineered
public improvement plans along the project frontage for review and
approval. These public improvements shall be completed prior to issuance
of occupancy release.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 32
a. The driveway approach on Red Hill Avenue shall be designed and
constructed per the City of Tustin Standard 210, modified to have
sufficient width to accommodate the required travel lanes and 35-
foot radius curd returns to be compatible with current or future traffic
signal installation.
b. The driveway approach on San Juan Street shall be designed and
constructed per the City of Tustin Commercial Driveway standards.
c. Red Hill Avenue shall be designed and constructed to its ultimate
Major Arterial half-width (60-feet from centerline to edge of public
right-of-way) adjacent to the site with curb & gutter, full width
sidewalk with tree wells, signal modification at the intersection of Red
Hill Avenue and San Juan Street including striping changes on San
Juan Street to show separate left-turn and shared through/right-turn
lanes, relocation of existing street light(s), and re-construct the
existing concrete curb ramp at the southwest corner of Red Hill
Avenue and San Juan Street to current Federal Americans with
Disabilities Act (ADA) requirements and City of Tustin Standard
Drawings. Gutter slope along Red Hill Avenue shall be designed and
constructed witha minimum of 0.2% slope.
d. The applicant shall design and construct the landscaped median on
Red HillAvenue between EI Camino Real and San Juan Street.
Based on the Red Hill Avenue Streetscape and Median Feasibility
Study from EI Camino Realto Bryan Avenue (CIP 70209) dated
September 10, 2012, the applicant shall be responsible for fair share
cost of the Red Hill Avenue landscape median(50%) as described in
the Infrastructure Construction and Reimbursement Agreement.
e. The street parking and the southbound right-turn lane along Red Hill
Avenueis temporary until such time the space is needed for roadway
widening. The applicant shall install signs (with TBD parking
restrictions and locations to bereviewed and approved by the City of
Tustin) adjacent to the provided streetparking.
f. The applicant shall design and construct parkway improvements
along the frontage on Red Hill Avenue and San Juan Street. The
applicant shall enterinto an Outdoor Revocable License agreement
with the City of Tustin for themaintenance of these improvements.
Any proposed outdoor furniture, planters, and improvements in the
parkway and decorative pavement in the public right-of-way shall be
reviewed and approved by the City of Tustin Public Works
Department. The applicant shall be responsible for preparing the
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 33
agreement exhibit(s) and theCity Attorney's costs for preparing the
agreement.
g. The applicant shall design and reconstruct the full width of the
existing public alley with Portland Cement Concrete (PCC).
Alternatively, the applicant may reconstruct the full width of the
existing public alley with a PCC ribbon gutter down centerline and
asphalt concrete paving, and enter into an agreement with the City
of Tustin for the maintenance of these improvements. The applicant
shall be responsible for preparing the agreement exhibit(s) and the
City Attorney's cost for preparing the agreement. The alley driveway
approach on Red Hill Avenue shall be reconstructed per City of
Tustin Commercial Driveway standards. The applicant is
responsible to coordinate, remove and relocate SCE power poles
and overhead utilities in the alley.
h. The applicant shall be responsible for the design and construction of
the undergrounding of all existing and proposed utility distribution
facilities within the public right-of-way along Red Hill Avenue along
the project frontage, and alley along the project frontage.
i. The applicant shall be responsible for relocating any existing utilities
from the curb return areas of the proposed driveways along San Juan
Street andRed Hill Avenue along the project frontage.
(1) 12.2 All proposed monument signs shall be designed and constructed on
private property and shall comply with the City of Tustin Guidelines for
Determining SignLocation Visual Clearance and Public Safety Areas.
(1) 12.3 Priorto 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) 12.5 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) 12.6 Current Federal Americans with Disabilities Act (ADA) requirements shall
be met at all driveways and sidewalks adjacent to the site. City of Tustin
standards shallapply, unless otherwise approved by the City Engineer.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 34
(1) 12.7 The power line serving Building C by the proposed transformer on San
Juan Street shall be designed and constructed onsite.
TRAFFIC CONDITIONS
(1) 13.1 A site-specific traffic analysis (TIA) has been performed which
identified the following mitigation improvements.
a. The applicant shall be responsible for design and construction of a
traffic signal at the intersection of Red Hill Avenue and the main project
entrance (project nameTBD). A 24" x 36" reproducible traffic signal
plan prepared by a California Registered Civil Engineer shall be
submitted prior to the issuance of any permits on the project.
Improvements shall be constructed prior to the issuance of a
Certificate of Occupancy for the first building adjacent to the traffic
signal. The applicant shall enter into an Infrastructure Construction
and Reim bursementAgreement with the City forthe cost of design and
construction of the signal. The applicant shall be responsible for fair
share cost of Red Hill Avenue and main project entrance (name TBD)
fifty (50) percent as described in the Infrastructure Construction and
Reimbursement Agreement.
b. The applicant shall be responsible for design and installation of traffic
signing and/or striping along Red Hill Avenue and San Juan Street,
including the additionof bike lanes on both sides of Red Hill Avenue
and a "KEEP CLEAR" legend and corresponding lines in front of the
project driveway off San Juan Street (exact limits of area to be
approved by the City). A 24" x 36" reproducible signing and striping
plan prepared by a California Registered Civil Engineer shall be
submittedand approved.
c. Due to traffic operational issues, the proposed crosswalk on the south
side of RedHill Avenue and San Juan Street shall be removed from
the plans prior to the issuance of building permits.
d. A traffic signal equipment and maintenance easement shall be
dedicated to the City of Tustin, at no cost to the City, for maintenance
of the traffic signal at the intersection of Red Hill Avenue and the
main project entrance (project name TBD).
e. The applicant shall submit project proportionate share of the traffic
signal modifications (i.e. left-turn phasing) at the intersection of Red
Hill Avenue and SanJuan Street in the amount of $9,000.00 to the
City of Tustin Public Works Department.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 35
WATER IMPROVEMENTS
(1) 14.1 The existing 6-inch water main in Red Hill Avenue is insufficient to provide
fire flows for the proposed facilities. Based on the OCFA fire flow
demands and requirements, the applicant shall design, construct and
complete water main improvements in Red Hill Avenue, including
construction of a new 12-inch diameter water main connecting to the
existing 12-inch main in EI Camino Real and the existing 8-inch main in
San Juan Street; abandonment of the existing 6-inch water main in Red
Hill Avenue between EI Camino Real and San Juan Street; and
abandonment of any existing water services connected to the 6-inch main
and replacement with new water services connected to the 12-inch main.
Per the Infrastructure Construction and Reimbursement Agreement, the
City will reimburse the difference in construction cost between a 10-inch
main, being the minimum pipe size required to serve the project, and a
12-inch main. Bids shall be obtained for both options. Water laterals
(domestic, irrigation, and fire) from the connection points in Red Hill
Avenue or San Juan Street to water meters on the Property are non-
reimbursable.
(1) 14.2 Prior to the issuance of an Encroachment Permit, the applicant shall
submit 24" x 26" reproducible water improvement plans to the Public
Works Department for review and approval. The plans shall be prepared
by a California Registered CivilEngineer and shall clearly show existing
and proposed water improvements, as well as other topographic features
and underground utilities. 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.
(1) 14.3 In accordance with the plans, 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. Theeasement 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
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 36
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) 14.4 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, 5) 14.5 Since the project is within the East Orange County Water District
(EOCWD) service area, a release/approval from the EOCWD shall be
obtained by the applicant prior to issuance of a grading permit from the
City of Tustin. The applicant shall submit a water permit application to
EOCWD, and is responsible for all application, connection and other
EOCWD fees.
(1, 5) 14.6 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 fireprotection requirements must be stamped and
approved by that agency.
(1, 5) 14.7 The proposed domestic water system plans must conform to all
applicable regulations enforced by the Orange County Health
Department.
(1) 14.8 Prior to issuance of a Building Permit(s), the applicant shall provide
written approval from the Orange County Sanitation District East Orange
County Water District (EOCWD) for sewer connections.
(1) 14.9 Any damage done to existing public street improvements and/or utilities
shall be repaired to the satisfaction of the City Engineer before
acceptance of the tract and/or issuance of a Certificate of Occupancy for
the development on any parcelwithin the subdivision.
SOLID WASTE RECYCLING
(1, 3) 15.1 Construction and Demolition Waste Recycling and Reduction Plan
(WRRP).
a. The applicant/contractor is required to submit a WRRP to the
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 37
Public Works Department. The WRRP must indicate how the
applicant will comply with the City's requirement(City Code Section
4351 , et al) to recycle at least sixty-five (65) percent of the project
waste material or the amount required by the California Green
Building Standards Code.
b. The applicant will be required to submit a $50.00 application fee
and a cashsecurity deposit. Based on the review of the submitted
Waste ManagementPlan, the cash security in the amount of five
(5) percent of the project's valuation as determined by the Building
Official, rounded to the nearest thousand. The deposit amount shall
be collected in accordance with the Tustin City Code.
c. Prior to the issuance of any permit, the applicant shall submit the
required security deposit in the form of cash, cashier's check,
personal check, or money order mad payable to the "City of Tustin".
(1) 15.2 Facility Solid Waste Collection and Recycling
a. The applicant, property owner, and/or tenant(s) are required to
participate inthe City's recycling program.
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 utilize the City's standard enclosure
designed withroof to accommodate at least sufficient bins for the
development, with at least one (1) bin reserved for recyclable
materials, and one (1) bin reserved for organic waste as part of the
State required organics diversion program.
f. 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 uponthe use and size of the building.
Organics can be collected six (6) days perweek to minimize the
space required for the container.
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 38
BUILDING PLAN SUBMITTAL
(1) 16.1 The final approved conditions of approval shall be reprinted on the first or
second page of the construction documents when submitting to the
Building Departmentfor the plan check process.
(1, 3) 16.2 At the time of building permit application, the plans shall comply with the
latest edition of the codes, City Ordinances, state and federal laws, and
regulations as adopted by the Tustin City Council.
(1) 16.3 Prior to the issuance of building permits, the applicant shall submit a
photometric lighting plan showing compliance with the Tustin Security
Code, which requires aminimum one foot-candle of light on the private
drives and parking surfaces and a minimum of one-quarter foot-candle of
light on the walking surfaces. The lighting plan is to be overlaid onto a
tree landscape plan.
(1) 16.4 A soils report is required for all new residential construction. A soils report
addressing foundation and seismic designs shall be provided for review
with the construction documents.
(1) 16.5 Fire sprinklers shall be required in all newly constructed buildings.
(1) 16.6 All direct service overhead powerlines serving the property shall be
relocated underground.
(1) 16.7 Prior to the issuance of a Grading Permit, a final grading plan, prepared
by a California Registered Civil Engineer, shall be submitted and
approved. The plan shall be consistent with the approved site and
landscaping plans.
(1) 16.8 Prior to issuance of grading permits, the project applicant shall
demonstrate there are no recognized environmental conditions (RECs)
and site soil testing results showing soils meet residential standards set
forth by the Department of Toxic Substances Control, Regional Water
Quality Control Board, or other applicable agency prior to initiation of
construction.
(1) 16.9 All new structures shall provide adequate radio coverage for City
emergency service workers operating on the 800 MHz Countywide
Coordinated Communication System. Further, the applicant/owners or
tenants shall maintain a reasonable standard of reliable radio
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 39
communication within their buildings and structures once a certificate of
occupancy is issued or a final inspection is conducted. For the purposes
of this section, adequate radio coverage shall include those specifications
in the City of Tustin Public Safety Radio System Coverage Specifications
set forth in Chapter 10, Section 8958 of the TCC, even if the project is
exempt from Section 8958. (City of Tustin Public Safety Radio System
Coverage Specifications).
(1) 16.10 Prior to issuance of a grading permit, the applicant or developer shall
provide "will-serve" letters from all utility providers.
FEE
(1, 5) 17.1 Prior to issuance of a Certificate of Occupancy for a residential unit of the
project, Developer shall pay a per unit park in-lieu fee, as each certificate
of occupancy is issued by the City. The amount of the per-unit park fee
shall be computed based upon multiplying the number of proposed
dwelling units by the Parkland Acres perDwelling Unit in accordance with
the Mitigation Monitoring and Reporting Program for the Red Hill Avenue
Specific Plan. The total park in-lieu fee, with the waiver applied to the six
(6) affordable units, is Two MillionTwo Hundred Thousand Eight Hundred
Dollars ($2,200,800.00)
(1, 5) 17.2 Prior to issuance of any building permit (s), payment of the most current
Major Thoroughfare and Bridge Fees (for the Foothill/Eastern
Transportation Corridor Agency (TCA)) to the City of Tustin (through the
Public Works Department) shall be required. The fee rate schedule
automatically increases on July 1st of each year.
(1, 5) 17.3 Developer shall pay an affordable housing in-lieu fee in the amount of
$12,946 per unit (or the annually adjusted amount), to a maximum
aggregate total of Seven Hundred Twenty-Seven Thousand Thirty-Five
Dollars ($737,922), or to the adjusted total amount, to be utilized by the
City for development of affordable housing. The affordable housing fee
shall be paid at the time of issuance of the Certificate of Occupancy for
the last Affordable unit.
(1) 17.4 Within forty-eight(48)hours of final approval of the project,the applicant shall
deliver to the Community Development Department, a CASHIER'S CHECK
payable to theCounty Clerk in the amount of fifty dollars ($50.00) to
enable the City to file the appropriate environmental documentation forthe
project. If within such forty-eight (48) hour period that applicant has not
delivered to the Community Development Department the above-noted
check, the statute of limitations for any interested party to challenge the
DocuSign Envelope ID:ACB04EC4-EDB8-4F3F-B8CD-D1129EA95335
PC Resolution No. 4436
DR 2021-0002, DA 2021-0001, SUB 2021-00001, and
Density Bonus/Workforce Housing Incentive Agreement
Page 40
environmental determination under the provisions of the California
Environmental Quality Act could be significantly lengthened.
DRAFT
ORDINANCE NO. 1515
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, APPROVING DEVELOPMENT AGREEMENT (DA)2021-
0001 BETWEEN THE CITY OF TUSTIN AND IRVINE ASSET
GROUP, LLC TO FACILITATE THE DEVELOPMENT OF A
MIXED-USE DEVELOPMENT CONSISTING OF 137
RESIDENTIAL APARTMENT UNITS AND 7,000 SQUARE FEET
OF COMMERCIAL SPACE ON AN APPROXIMATE 3.38 ACRE
SITE LOCATED WITHIN THE RED HILL AVENUE SPECIFIC
PLAN (RHASP) AT 13751 AND 13841 RED HILL AVENUE (APN
# 500-141-09 & 500-141-10).
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1. The City Council finds and determines as follows:
A. The Red Hill Avenue Specific Plan (RHASP) provides for the allocation of
500 additional residential units within the Specific Plan area. Of this total,
395 dwelling units are eligible for development within the Specific Plan area
north of the 1-5.
B. In July 2020, Craig Swanson, on behalf of Irvine Asset Group, LLC
("Applicant"), submitted a Residential Allocation Reservation (RAR)
application to the City, requesting an allocation of 114 base residential units
(does not include density bonus units) for the development of a mixed-use
project containing 137 residential units, including a twenty (20) percent
density bonus based upon the provision of 6 very-low income rental units,
and 7,000 square feet of retail commercial space at 13751 and 13841 Red
Hill Avenue, consisting of two lots containing approximately 3.38 acres
("Project").
C. On November 12, 2020, the Community Development Director conducted
a preliminary review and, in accordance with the RHASP, approved the 114
RAR, pending timely submittal of an application for the Project Entitlements.
D. That proper application has been submitted by Applicant for the
development of the Project.
E. That Development Agreement (DA) 2021-0001 serves to strengthen the
public planning process and provide for the orderly implementation of the
General Plan and the RHASP, and certain assurances to the Developer and
the City.
F. 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
1595783.1
Ordinance XXXX
Page 2 of 4
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.
G. That a public hearing was duly called, noticed, and held on said application
on July 27, 2021, by the Planning Commission. The Planning Commission
adopted Resolution No. 4436 recommending that the City Council adopt
Ordinance 1515 and approve the Project.
H. That a public hearing was duly called, noticed, and held on said application
on , by the City Council.
I. That on October 16, 2018, the City Council certified the Final Program
Environmental Impact Report SCH No. 2017041031 (FPEIR), including a
Statement of Overriding Considerations and Mitigation Monitoring and
Reporting Program for the RHASP in accordance with the requirements of
the California Environmental Quality Act. The Project proposes the
development of a site with uses that are consistent with the uses approved
in the RHASP, General Plan, and zoning designations for the site and are
also within the density and development assumptions that were evaluated
in the RHASP FEIR for the site. As a result, the City of Tustin, as the Lead
Agency, has prepared an Addendum to the RHASP Program EIR pursuant
to the requirements of the California Environmental Quality Act (CEQA,
Public Resources Code §§ 2100, et seq.) the regulations promulgated
thereunder (14 California Code of Regulations §§ 15000, et seq., CEQA
Guidelines).
J. That the DA is supported by the following findings:
1. The Project is consistent with the objectives, policies, land uses and
programs specified in the General Plan and the RHASP in that mixed-
use developments that include a combination of commercial retail and/or
office on the ground floor and residential uses on the upper floors in a
vertical mixed-use format are permitted uses within the RHASP area and
promotes citywide goals of encouraging economic development,
business attraction and development within the RHASP.
2. That the Project is compatible with the uses authorized in the RHASP in
that mixed-use urban development is envisioned in the area and similar
and compatible uses exist and are envisioned within close proximity of
the project site.
3. The Project is in conformity with the public necessity, public convenience,
general welfare and good land use practices in that the development
agreement incorporates public benefits in the form of two (2) pedestrian
plazas, off-site parking on Red Hill Avenue, gateway signage at the
1595783.1
Ordinance XXXX
Page 3 of 4
southwest corner of San Juan Street and Red Hill Avenue, public art, and
payment of park impact fees to fund park improvements within the
RHASP and will provide options for housing to the City's housing stock.
4. That the project will not be detrimental to the health, safety, and general
welfare. The project will comply with the RHASP, TCC and other
regulations to ensure that the project will not be detrimental in any way.
5. That the project will have a positive fiscal impact on the City in that the
provisions of the proposed DA and conditions of approval will ensure that
the project will have a positive fiscal impact on the City
6. That 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 and businesses in the RHASP.
SECTION 2. The City Council hereby approves Development Agreement 2021-0001
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
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 XX day of XX, 2021.
LETITIA CLARK
Mayor
ERICA N. YASUDA
City Clerk
1595783.1
Ordinance XXXX
Page 4 of 4
APPROVED AS TO FORM:
DAVID E. KENDIG
City Attorney
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. xxxx was duly and
regularly introduced at a regular meeting of the Tustin City Council, held on the XX day
of XX, 2021 , and was given its second reading, passed, and adopted at a regular meeting
of the City Council held on the XX day of XX, 20217 by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
ERICA N. YASUDA
City Clerk
Published:
1595783.1
Ordinance XXXX
Page 5 of 4
EXHIBIT A
Development Agreement 2021-0001
1595783.1
DRAFT
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and
for the benefit of the City of Tustin and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and
27383.
DEVELOPMENT AGREEMENT
(2021-0001)
between
CITY OF TUSTIN
and
Irvine Asset Group, LLC
1596301.1
DRAFT
7/21/21
TABLE OF CONTENTS
Page
1. Definitions............................................................................................................................3
2. General Provisions...............................................................................................................6
2.1 Binding Effect of Agreement; Authorized Use of Property. ...................................6
2.2 Developer Representations and Warranties Regarding Ownership of the
Property and Related Matters Pertaining to this Agreement. ..................................6
2.3 Term.........................................................................................................................7
3. Development of Project. ......................................................................................................8
3.1 Utilization of Residential Allocation Reservation: Pulling Permits and
Commencement of Construction..........................................................8
3.2 Development Regulations; Developer's Vested Rights and City's
Reservation of Discretion With Respect to Subsequent Development
Approvals.................................................................................................................8
3.3 Other Governmental or Quasi-Governmental Permits. ...........................................9
3.4 No Conflicting Enactments......................................................................................9
3.5 Reservations of Authority......................................................................................10
4. Public Benefits...................................................................................................................12
4.1 Provision of Public Benefits. .................................................................................12
4.2 Effect of Public Benefits Default...........................................................................12
5. Enforcement.......................................................................................................................13
6. Annual Review of Developer's Compliance With Agreement..........................................13
6.1 General...................................................................................................................13
6.2 Developer Obligation to Demonstrate Good Faith Compliance............................13
6.3 Procedure. ..............................................................................................................13
6.4 Annual Review a Non-Exclusive Means for Determining and Requiring
Cure of Developer's Default..................................................................................13
7. Events of Default. ..............................................................................................................13
7.1 General Provisions.................................................................................................13
7.2 City's Remedies......................................................................................................14
7.3 Developer's Remedies............................................................................................14
7.4 Waiver....................................................................................................................15
7.5 Additional City Remedy for Developer's Default.................................................15
7.6 No Personal Liability of City Officials, Employees, or Agents. ...........................15
7.7 Recovery of Legal Expenses by Prevailing Party in Any Action..........................15
1596301.1
DRAFT
7/21/21
TABLE OF CONTENTS
Page
8. Force Majeure. ...................................................................................................................15
9. Indemnity Obligations of Developer. ................................................................................16
9.1 Indemnity Arising From Acts or Omissions of Developer....................................16
9.2 Third Party Litigation. ...........................................................................................16
9.3 Environmental Indemnity. .....................................................................................17
9.4 Labor Laws. ...........................................................................................................17
10. Assignment. .......................................................................................................................17
10.1 Permitted Transfers................................................................................................17
10.2 City Approval of Transferee. .................................................................................18
10.3 Ongoing Liability of Transferor.............................................................................I8
11. Mortgagee Rights...............................................................................................................19
11.1 Encumbrances on Property. ...................................................................................19
11.2 Mortgagee Protection.............................................................................................19
11.3 Mortgagee Not Obligated. .....................................................................................19
11.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure...............................19
12. Miscellaneous Terms. ........................................................................................................20
12.1 Notices. ..................................................................................................................20
12.2 Project as Private Undertaking...............................................................................20
12.3 Cooperation............................................................................................................21
12.4 Estoppel Certificates. .............................................................................................21
12.5 Rules of Construction. ...........................................................................................21
12.6 Time Is of the Essence. ..........................................................................................21
12.7 Waiver....................................................................................................................21
12.8 Counterparts...........................................................................................................21
12.9 Entire Agreement...................................................................................................22
12.10 Severability. ...........................................................................................................22
12.11 Developer Deposit. ................................................................................................22
12.12 Construction...........................................................................................................23
12.13 Successors and Assigns; Constructive Notice and Acceptance.............................23
12.14 No Third Party Beneficiaries. ................................................................................23
12.15 Applicable Law and Venue....................................................................................23
12.16 Section Headings. ..................................................................................................24
1596301.1
DRAFT
7/21/21
TABLE OF CONTENTS
Page
12.17 Incorporation of Recitals and Exhibits. .................................................................24
12.18 Recordation............................................................................................................24
12.19 Authority to Execute..............................................................................................24
EXHIBITS
Exhibit A Legal Description of Property
Exhibit B Site Plan
Exhibit C On Street Parking Plan
Exhibit D Conceptual Gateway Sign
1596301.1
DEVELOPMENT AGREEMENT
(2021-0001)
(Pursuant to California Government Code sections 65864-65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement") is dated for reference purposes
as of the day of ,2021, and is being entered into by and between the CITY
OF TUSTIN ("Ci1y") Irvine Asset Group, LLC, a California limited liability company
("Developer"). City and Developer are sometimes collectively referred to in this Agreement as
the "Parties" and individually as a "Party." All terms defined in the Agreement shall have the
same meaning when used herein.
RECITALS
A. Developer has an equitable interest in real property constituting 3.389 aces located
in the City of Tustin, County of Orange, State of California, located at 13751/13841 Red Hill
Avenue in the Red Hill Avenue Specific Plan (RHASP) (APN 9 500-141-09 & 500-141-10 ) as
legally described on Exhibit A and depicted on Exhibit B attached to this Agreement (the
"Property"). The Property is owned by WASL Tustin Investors, LLC ("WASL"), and Developer
is in escrow to acquire the Property from WASL.
B. Developer is proposing to develop the Property as a mixed-used development with
137 residential units (including density bonus units) and 7,000 square feet of commercial uses (as
further defined in Section 1 below, the "Project").
C. In order to encourage investment in, and commitment to, comprehensive planning
and strengthen the public planning process and encourage private implementation of the local
general plan, provide certainty in the approval of projects in order to avoid waste of time and
resources, and reduce the economic costs of development by providing assurance to property
owners that they may proceed with projects consistent with existing land use policies, rules, and
regulations, the California Legislature adopted California Government Code sections 65864-
65869.5 (the "Development Agreement Statute") authorizing cities and counties to enter into
development agreements with persons or entities having a legal or equitable interest in real
property located within their jurisdiction.
D. On December 3, 1984, the City Council adopted Ordinance No. 923, codified at
Section 9600 et seq. of the Tustin Code Regarding Development Agreements (the "Development
Agreement Ordinance"). This Agreement is consistent with the Development Agreement
Ordinance.
E. Developer shall provide public benefits as provided in this Agreement as
consideration for this Agreement.
1596301.1
DRAFT
7/21/21
F. The following land use entitlements and agreements for the Project are being
adopted and approved by the City Council concurrently with its approval of this Agreement
("Applicable Approvals"):
(1) Final Approval of Residential Allocation Reservation (RAR) 2020-
0001, (114 base residential units).
(2) Design Review (DR) 2021-0002.
(3) Development Agreement 2021-0001.
(4) Subdivision(SUB)2021-0001/Vesting Tentative Tract Map(TTM)No.
17822.
(5) Density Bonus and Voluntary Workforce Housing Incentive
Agreement.
G. City has determined that this Agreement and the Project are consistent with the
City's General Plan and that the Development Agreement complies with the findings established
by the Development Agreement Ordinance, 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 Property.
6. Will have a positive fiscal impact on the City.
H. On , 2021 City's Planning Commission held a public hearing on
this Agreement, made findings and determinations with respect to this Agreement, and
recommended to the City Council that the City Council approve this Agreement.
I. On , 2021, the City Council held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff,Developer, and members of the public. On ,
2021, consistent with applicable provisions of the Development Agreement Statute and
Development Agreement Ordinance, the City Council adopted its Ordinance No. (the
"Adopting Ordinance"), finding this Agreement to be consistent with the City of Tustin General
Plan and approving this Agreement. and authorizing its execution.
1596301.1
DRAFT
7/21/21
AGREEMENT
NOW, THEREFORE, City and Developer agree as follows:
1. Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed in Section 7.7 of this Agreement.
"Adopting Ordinance" shall have the meaning ascribed in Recital I of this Agreement.
"Agreement" shall mean this Development Agreement.
"Agreement Date" shall mean the date this Agreement is recorded in the Office of the
Orange County Recorder.
"Applicable Approvals" shall have the meaning ascribed in Recital F of this Agreement.
"CEQA" shall mean the California Environmental Quality Act (California Public
Resources Code sections 21000-21177)and the implementing regulations promulgated thereunder
by the Secretary for Resources (California Code of Regulations, Title 14, Section 15000 et seq.),
as the same may be amended from time to time.
"C."shall mean the City of Tustin, a California city, and any successor or assignee of the
rights and obligations of the City of Tustin hereunder.
"City Council" shall mean the governing body of the City of Tustin.
"City's Affiliated Parties" shall have the meaning ascribed in Section 9.1 of this
Agreement.
"Claim" shall have the meaning ascribed in Section 9.1 of this Agreement.
"Cure Period" shall have the meaning ascribed in Section 7.1 of this Agreement.
"Damages" shall have the meaning ascribed in Section 7.3 of this Agreement.
"Default" shall have the meaning ascribed to that term in Section 7.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not limited to: grading;the construction of infrastructure and public facilities related
to the Project, whether located within or outside the Property; the construction of all of the private
improvements and facilities comprising the Project; the preservation or restoration, as required of
natural and man-made or altered open space areas; and the installation of landscaping. The terms
"Develop" and "Development," as used herein, do not include the maintenance, repair,
1596301.1
DRAFT
7/21/21
reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the
initial construction and completion thereof.
"Developer" shall mean Irvine Asset Group, LLC, a California limited liability company,
and any successor or assignee to all or any portion of the right, title, and interest of the Project in
and to ownership of all or a portion of the Property.
"Development Agreement Ordinance" shall mean the Chapter 6, Part 1, Section 9600 et
seq. of the Tustin City Code.
"Development Agreement Statute" shall mean California Government Code sections
65864-65869.5, inclusive, as the same may be amended from time to time.
"Development Exactions" shall mean the requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of development of the
Project on the environment or other public interests, except as specifically excluded from such
definition pursuant to Section 3.5.4.
"Development Limitation" shall have the meaning ascribed in Section 2.3.3.
"Development Plan" shall mean all of the land use entitlements, approvals and permits
approved by the City for the Project on or before the Agreement Date,as the same may be amended
from time to time consistent with this Agreement. Such land use entitlements, approvals and
permits include, without limitation, the Development Regulations, to the extent provided under
this Agreement, the Applicable Approvals and all conditions of approval and all mitigation
measures approved for the Project on or before the Agreement Date.
"Development Regulations" shall mean the following regulations as they are in effect as
of the Effective Date and to the extent they govern or regulate the development of the Property:
the General Plan; the Development Plan; and, to the extent not expressly superseded by the
Development Plan or this Agreement, all other land use and subdivision regulations governing the
permitted uses, density and intensity of use, design, improvement, and construction standards and
specifications,procedures for obtaining required City permits and approvals for development, and
similar matters that may apply to development of the Project on the Property during the Term of
this Agreement that are set forth in the Red Hill Avenue Specific Plan and the Tustin City Code
dealing with buildings and construction, subdivisions and inclusionary housing, and planning,
zoning and density bonus. Notwithstanding the foregoing, the term "Development Regulations,"
as used herein, does not include any City ordinance, resolution, code, rule, regulation or official
policy governing any of the following: (i)the conduct of businesses,professions, and occupations;
(ii) taxes and assessments; (iii) the control and abatement of nuisances; (iv) the granting of
encroachment permits and the conveyance of rights and interests which provide for the use of or
the entry upon public property; or(v)the exercise of the power of eminent domain.
"Effective Date" shall mean the date that is thirty (30) days after the date the Adopting
Ordinance is approved by the City Council. Promptly after the Effective Date occurs, the Parties
1596301.1
DRAFT
7/21/21
agree to cooperate in causing an appropriate instrument to be executed and recorded against the
Property memorializing the Effective Date.
"Environmental Laws"means all federal,state,regional,county,municipal, and local laws,
statutes, ordinances, rules, and regulations which are in effect as of the Effective Date, and all
federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and
regulations which may hereafter be enacted and which apply to the Property or any part thereof,
pertaining to the use,generation,storage,disposal,release,treatment,or removal of any Hazardous
Substances, including without limitation the following: the Comprehensive Environmental
Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et sec., as amended
("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Sections 6901, et seg., as amended ("RCRA"); the Emergency
Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et seq., as
amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et s�Mc., as
amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq., as amended; the Clean Water Act,
33 U.S.C. Section 1251, et sec., as amended; the Toxic Substances Control Act, 15 U.S.C.
Sections 2601 et seq., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. Sections 136 et seq., as amended;the Federal Safe Drinking Water Act,42 U.S.C. Sections
300f et seq., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C.
Sections 7401 et seq., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections
651 et seq., as amended; and California Health and Safety Code Section 25100, et SeMc.
"General Plan" shall mean City's General Plan in effect on the Effective Date.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum-derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged as
security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 7.1 of this Agreement.
"P " or "Parties" shall mean either City or Developer or both, as determined by the
context.
,'Project" shall mean all on-site and off-site improvements that Developer is authorized
and/or required to construct with respect to the Property, as provided in this Agreement, the
Applicable Approvals, and the Development Regulations, as the same may be modified or
amended from time to time consistent with this Agreement and applicable law in order to carry
out the Development Plan.
1596301.1
DRAFT
7/21/21
"Property" shall have the meaning ascribed in Recital A of this Agreement.
"Public Benefits" means those public benefits to be provided by the Developer and the
Project as described in Section 4 of this Agreement that comprise enforceable additional
consideration to City for this Agreement.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that Developer is required to obtain to Develop the Project on and with respect
to the Property after the Effective Date consistent with the Development Regulations and this
Agreement,with the understanding that except as expressly set forth herein City shall not have the
right subsequent to the Agreement Date and during the Term of this Agreement to adopt or impose
requirements for any such Subsequent Development Approvals that do not exist as of the
Agreement Date.
"Term" shall have the meaning ascribed in Section 2.3.1 of this Agreement.
"Termination Date" shall have the meaning ascribed in Section 2.3.2 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 10.1 of this Agreement.
2. General Provisions.
2.1 Binding Effect of Agreement, Authorized Use of Property.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement and the
Development Regulations and the Applicable Approvals,which establish the permitted uses of the
Property, the density and intensity of use, the maximum height and size of proposed buildings on
the Property and provisions for reservation and dedication of land for public purposes. For
avoidance of doubt, the permitted uses on the Property are mixed use commercial and residential
development in connection with such uses as described by the Applicable Approvals.
2.2 Developer Representations and Warranties Regarding Ownership of the Property
and Related Matters Pertaining to this Agreement.
Developer and each person executing this Agreement on behalf of Developer hereby
represents and warrants to City as follows: (i)that Developer has an equitable interest to acquire
fee simple title to the Property as of the Effective Date; (ii) if Developer or any co-owner
comprising Developer is a legal entity that such entity is duly formed and existing and is authorized
to do business in the State of California; (iii) if Developer or any co-owner comprising Developer
is a natural person that such natural person has the legal right and capacity to execute this
Agreement; (iv) that all actions required to be taken by all persons and entities comprising
Developer to enter into this Agreement have been taken and that Developer has the legal authority
to enter into this Agreement; (v) that Developer's entering into and performing its obligations set
forth in this Agreement will not result in a violation of any obligation, contractual or otherwise,
that Developer or any person or entity comprising Developer has to any third party; (vi)that neither
Developer nor any co-owner comprising Developer is the subject of any voluntary or involuntary
bankruptcy or insolvency petition; and (vii) that Developer has no actual knowledge of any
1596301.1
DRAFT
7/21/21
pending or threatened claims of any person or entity affecting the validity of any of the
representations and warranties set forth in clauses (i)-(vi), inclusive, or affecting Developer's
authority or ability to enter into or perform any of its obligations set forth in this Agreement.
2.3 Term.
2.3.1 The term of this Agreement(the "Term") shall commence on the Effective
Date and shall extend until the Termination Date (as defined below). Following the Termination
Date, this Agreement shall be deemed terminated and of no further force and effect; provided
however, that said termination of the Agreement shall not affect any right or duty emanating from
the Applicable Approvals or any Subsequent Development Approvals.
2.3.2 The "Termination Date" shall be the earliest of the following dates: (i) the
fifth (5th) anniversary of the Effective Date, which may be extended pursuant to Sections 2.3.3 or
2.3.4 (ii); (ii) the date of termination of this Agreement by the City in accordance with any of
Articles 6, 7 and/or 8 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development
Agreement Statute; (iii) the date upon which Developer completes the Project and the Public
Benefits in accordance with the terms of this Agreement, the Applicable Approvals and the
Development Regulations, including Developer's complete satisfaction, performance, and
payment, as applicable, of all Development Exactions,the issuance of all required final occupancy
permits for residential units on the Property, and acceptance by City or applicable public
agency(ies) or private entity(ies) of all required public improvements; (iv) the date of entry of a
final court judgment not subject to further appeal setting aside, voiding or annulling the adoption
of the Adopting Ordinance or any of the Applicable Approvals; or (v) the date of adoption of a
referendum measure overriding or repealing the City ordinance approving this Agreement.
2.3.3 Notwithstanding the Parties' expectation that there will be no limit or
moratorium upon the Project's development or the issuance of building or other development
related permits("Development Limitation")during the Term,the Parties understand and agree that
various third parties may take action causing a de facto Development Limitation. Consequently,
the Term and the obligations imposed pursuant to this Agreement and the expiration date of all
Applicable Approvals shall be extended day for day for any delay arising from or related to a
timely filed lawsuit challenging the validity or legality of the Adopting Ordinance,this Agreement,
and/or any of the Applicable Approvals, until the date on which said challenge is finally resolved
in favor of the validity or legality of the Adopting Ordinance, this Agreement, and/or the
Applicable Approvals, whether such finality is achieved by a final non-appealable judgment,
voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary
dismissal), or binding written settlement agreement. Each Party shall promptly notify the other
Party to this Agreement upon learning of any Development Limitation.
2.3.4 Unless otherwise agreed by the City Council in its sole discretion, the
maximum Term of this Agreement shall be five (5) years from the Effective Date, subject to (i)
any tolling(s) of the Term, pursuant to Section 2.3.3 of the Agreement; or (ii)the issuance of one
two(2)year mandatory automatic extension of the Term,if Developer has pulled the fiftieth(50th)
building permit for the Project prior to the expiration of the Term.
2.3.5 Notwithstanding any provision to the contrary herein, in the event that, for
any reason whatsoever, Developer fails to acquire fee simple title to the Property ("Fee Title")
1596301.1
DRAFT
7/21/21
within 180 days following the Effective Date ("Fee Title Deadline"), Developer or City may elect,
in each Party's sole and absolute discretion, and upon written notice to the other Party within sixty
(60) days following the Fee Title Deadline, to terminate this Agreement and the Applicable
Approvals. Effective upon such termination by either Party, this Agreement and the Applicable
Approvals shall be of no further force or effect.
3. Development of Project.
3.1 Utilization of Residential Allocation Reservation: Pulling Permits and
Commencement of Construction.
Following final approval of RAR 2020-0001 and the Applicable Approvals, all
construction related permits for the Project, including demolition, grading, and building permits,
must be obtained within 180 days ("First Post Entitlement Period"). Following building permit
issuance, construction must commence within 180 days. Time extensions may be considered at
the discretion of the City of Tustin Community Development Director ("Director").
Notwithstanding the foregoing,the Director hereby agrees to automatically extend the time frame
of the First Post Entitlement Period an additional 360 days if Developer pulls a demolition and
precise grading permit prior to the expiration of the First Post Entitlement Period. Developer's
precise grading permit application shall comply with all requirements specified in Tustin
Municipal Code section 8909. City shall act in good faith to issue the precise grading permit within
90 days of Developer's precise grading application, provided Developer submits a complete
application and is responsive to corrections. If the application is incomplete and requires
corrections,the Director will notify Developer in writing of the remaining items or corrections and
specify a timeline for Developer to respond to outstanding corrections ("Correction Notice").
Concurrently with the Correction Notice, and any subsequent Correction Notice(s), the First Post
Entitlement Period deadline shall be automatically extended by thirty (30) days. The allocation of
the 114 base residential units to the Project shall expire and the units redeposited into the
Residential Allocation Bank for use by other projects if the construction related permits are not
obtained within the required time limits or approved for extension; or the permits are not utilized,
as evidenced by the commencement of construction, within 180 days following issuance of the
permits.
3.2 Development Regulations, Developer's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
3.2.1 Other than as expressly set forth in this Agreement, during the Term of this
Agreement, (i)Developer shall have the vested right to Develop the Project on and with respect to
the Property in accordance with the terms of the Development Regulations, the Applicable
Approvals, the Workforce Plan and this Agreement and (ii) City shall not prohibit or prevent
development of the Property on grounds inconsistent with the Development Regulations or this
Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict City's
discretion with respect to (i) review and approval requirements contained in the Development
Regulations, (ii) exercise of any discretionary authority City retains under the Development
Regulations, (iii)the approval, conditional approval, or denial of any Subsequent Development
Approvals that are required for Development of the Project as of the Effective Date, or (iv) any
environmental approvals that may be required under CEQA or any other federal or state law or
regulation in conjunction with any Subsequent Development Approvals that may be required for
1596301.1
DRAFT
7/21/21
the Project, and in this regard, as to future actions referred to in clauses (i)-(iv) of this sentence,
City reserves its full discretion to the same extent City would have such discretion in the absence
of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is
intended to vest Developer's rights with respect to any laws,regulations, rules, or official policies
of any other governmental agency or public utility company with jurisdiction over the Property or
the Project; or any applicable federal or state laws, regulations, rules, or official policies that may
be inconsistent with this Agreement and that override or supersede the provisions set forth in this
Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or
official policies are adopted or applied to the Property or the Project prior or subsequent to the date
on which the City Council approves the Adopting Ordinance. Concerning any denials of any
Subsequent Development Approvals, the City shall base such denials solely upon an application
of the Development Regulations, the Applicable Approvals or this Agreement.
3.2.2 Developer has expended and will continue to expend substantial amounts
of time and money planning and preparing for Development of the Project. Developer represents
and City acknowledges that Developer would not make these expenditures without this
Agreement, and that Developer is and will be making these expenditures in reasonable reliance
upon its vested rights to Develop the Project as set forth in this Agreement.
3.2.3 Developer may apply to City for permits or approvals necessary to modify
or amend the Development specified in the Development Regulations, provided that the request
does not propose an increase in the maximum density, intensity, height, or size of proposed
structures, or a change in use that generates more peak hour traffic or more daily traffic and, in
addition, Developer may apply to City for approval of minor amendments to existing tentative
tract maps, tentative parcel maps, or associated conditions of approval, consistent with the Tustin
City Code. This Agreement does not constitute a promise or commitment by City to approve any
such permit or approval, or to approve the same with or without any particular requirements or
conditions, and City's discretion with respect to such matters shall be the same as it would be in
the absence of this Agreement.
3.3 Other Governmental or Quasi-Governmental Permits.
Developer shall apply for such other permits and approvals as may be required by non-City
governmental or quasi-governmental agencies having regulatory jurisdiction over the Project(such
as public utilities or special districts, or other federal or state resource agencies) to the extent
required for the development of, or provision of, services and facilities to the Project as set forth
in the Development Plan. The City shall cooperate with and assist Developer in obtaining such
permits and approvals, and, where necessary in making application for such approvals or permits.
Developer shall be solely responsible for all costs and shall be responsible for the processing of all
such permits.
3.4 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement
(including, without limitation, as set forth in Section 3.5 and Article 4 of this Agreement), during
the Term of this Agreement, the City shall not apply to the Project or the Property any ordinance,
policy, rule, regulation, or other measure relating to Development of the Project that is enacted or
becomes effective after the Agreement Date to the extent it conflicts with this Agreement. In
1596301.1
DRAFT
7/21/21
Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465,the California Supreme Court
held that a construction company was not exempt from a city's growth control ordinance even
though the city and construction company had entered into a consent judgment (tantamount to a
contract under California law) establishing the company's vested rights to develop its property
consistent with the zoning. The California Supreme Court reached this result because the consent
judgment failed to address the timing of development. The Parties intend to avoid the result of the
Pardee case by acknowledging and providing in this Agreement that Developer shall have the
vested right to Develop the Project on and with respect to the Property at the rate, timing, and
sequencing that Developer deems appropriate within the exercise of Developer's sole subjective
business judgment, provided that such Development occurs in accordance with this Agreement,
the Applicable Approvals and the Development Regulations, notwithstanding adoption by City's
electorate of an initiative to the contrary after the Agreement Date. No City moratorium or other
similar limitation relating to the rate, timing, or sequencing of the Development of all or any part
of the Project and whether enacted by initiative or another method, affecting subdivision maps,
building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to
the extent such moratorium or other similar limitation restricts Developer's vested rights in this
Agreement or otherwise conflicts with the express provisions of this Agreement.
3.5 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 3.5 shall apply to and govern the
Development of the Project on and with respect to the Property.
3.5.1 Procedural Regulations. Procedural regulations relating to hearing bodies,
petitions,applications,notices,findings,records,hearings,reports,recommendations,appeals,and
any other matter of procedure shall apply to the Property,provided that such procedural regulations
are adopted and applied City-wide or to all other properties similarly situated in City.
3.5.2 Processing and Permit Fees. City shall have the right to charge and
Developer shall be required to pay (a) all applicable processing and permit fees to cover the
reasonable cost to City of(i)processing and reviewing applications and plans for any Applicable
Approvals, Subsequent Development Approvals, building permits, excavation and grading
permits, encroachment permits, plan checking, site review and approval, administrative review,
and similar fees imposed to recover City's costs associated with processing, reviewing, and
inspecting Project applications, plans and specifications, (ii) inspecting the work constructed or
installed by or on behalf of Developer, and (iii) monitoring compliance with any requirements
applicable to Development of the Project, in each case at the rates in effect at the time fees are due
and (b) all costs incurred by the City performance of necessary studies and reports in connection
with the foregoing and its obligations under this Agreement (collectively, the "City Processing
Fees").
3.5.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Developer
has consented in writing to the regulations, shall apply to the Property.
1596301.1
DRAFT
7/21/21
3.5.4 Development Exactions Applicable to Property. During the Term of this
Agreement, unless otherwise prohibited or limited under state law, Developer shall be required to
satisfy and pay all Development Exactions at the time performance or payment is due to the same
extent and in the same amount(s) that would apply to Developer and the Project in the absence of
this Agreement; provided, however, that to the extent the scope and extent of a particular
Development Exaction for the Project has been established and fixed by City in this Agreement or
the conditions of approval for any of the Applicable Approvals or Development Regulations
approved on or before the Effective Date, the City shall not alter, increase, or modify said
Development Exaction in a manner that is inconsistent with such Development Regulations
without Developer's prior written consent or as may be otherwise required pursuant to overriding
federal or state laws or regulations (Section 3.5.5 hereinbelow). Notwithstanding any other
provision of this Agreement, nothing in this Agreement is intended or shall be deemed to vest
Developer against the obligation to pay any of the following(which are specifically excluded from
the definition of"Development Exactions") in the full amount that would apply in the absence of
this Agreement: (i) City's normal fees for processing, environmental assessment and review,
tentative tract and parcel map review, plan checking, site review and approval, administrative
review, building permit, grading permit, inspection, and similar fees imposed to recover City's
costs associated with processing, reviewing, and inspecting project applications, plans, and
specifications; (ii) fees and charges levied by any other public agency, utility, district, or joint
powers authority, regardless of whether City collects those fees and charges; or (iii) community
facility district special taxes or special district assessments or similar assessments,business license
fees, bonds or other security required for public improvements, transient occupancy taxes, sales
taxes,property taxes,sewer lateral connection fees,water service connection fees,new water meter
fees, park fees and the New Construction Tax (as described in Section 2601 of the Tustin City
Code.)
3.5.5 Overriding Federal and State Laws and Regulations. Federal and state laws
and regulations that override Developer's vested rights set forth in this Agreement shall apply to
the Property, together with any City ordinances, resolutions, regulations, and official policies that
are necessary to enable City to comply with the provisions of any such overriding federal or state
laws and regulations, provided that (i) Developer does not waive its right to challenge or contest
the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii)
upon the discovery of any such overriding federal, state, or City law or regulation that prevents or
precludes compliance with any provision of this Agreement, City or Developer shall provide to
the other Party a written notice identifying the federal, state, or City law or regulation, together
with a copy of the law or regulation and a brief written statement of the conflict(s) between that
law or regulation and the provisions of this Agreement. Promptly thereafter City and Developer
shall meet and confer in good faith in a reasonable attempt to determine whether a modification or
suspension of this Agreement, in whole or in part, is necessary to comply with such overriding
federal, state, or City law or regulation. In such negotiations, City and Developer agree to preserve
the terms of this Agreement and the rights of Developer as derived from this Agreement to the
maximum feasible extent while resolving the conflict. City agrees to cooperate with Developer at
no cost to City in resolving the conflict in a manner which minimizes any financial impact of the
conflict upon Developer. City also agrees to process in a prompt manner Developer's proposed
changes to the Project and any of the Development Regulations as may be necessary to comply
with such overriding federal, state, or City law or regulation;provided, however,that the approval
1596301.1
DRAFT
7/21/21
of such changes by City shall be subject to the sole discretion of City, consistent with this
Agreement.
3.5.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the immediate
vicinity from conditions dangerous to their health or safety, as reasonably determined by City,
shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation,program, or official policy would result in the impairment of Developer's vested rights
under this Agreement.
3.5.7 Uniform Building Standards. Existing and future building and building-
related standards set forth in the uniform codes adopted by City and any local amendments to those
codes adopted by the City,including without limitation building,plumbing,mechanical, electrical,
housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all
apply to the Project and the Property to the same extent that the same would apply in the absence
of this Agreement.
3.5.8 Public Works Improvements. To the extent Developer constructs or installs
any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
3.5.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended
or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or
the Property any utility capacity, service, or facilities that may be needed to serve the Project,
whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment
capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or
restrict Development of the Project if and to the extent that City reasonably determines that
inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to commence. Notwithstanding the foregoing,City covenants to provide utility services
to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that City
undertakes to provide such services to other similarly situated new developments in the City of
Tustin as and when service connections are provided and service commences).
4. Public Benefits.
4.1 Provision of Public Benefits.
Developer shall provide the following public benefits which shall constitute additional
consideration for this Agreement for the benefit of the City ("Public Benefits"):
4.1.1 Public Amenities. Installation of two pedestrian plazas; one at the main
entryway/drive aisle that flanks either side of the main drive aisle and a secondary plaza at the
southwest corner of San Juan Avenue and Red Hill Avenue.
4.1.2 Off-site Parkin. Provision of twelve (12) on-street vehicular parking
spaces immediately adjacent to Red Hill Avenue in front of the proposed project. If the City opts
1596301.1
DRAFT
7/21/21
to widen the Red Hill Avenue roadway at a future date,Developer will be required to remove these
twelve (12) parking spaces at its sole cost and expense and to the reasonable satisfaction of the
City.
4.1.3 Gateway Signage. Construction and installation of gateway signage
designating the corridor as the beginning of the Red Hill Avenue Specific Plan area at the
southwest corner of San Juan Street and Red Hill Avenue. Said signage shall be subject to the
review and approval by the Community Development Department.
4.1.4 Public Art. As addressed in Section 5.6.3 of the RHASP, Developer
shall agree to provide an art program that may consist of a wall mural located on the south elevation
of the Red Hill architectural tower of the Project facing the 55 Freeway ("Mural"), or other public
art, as described herein. The Mural and other public art is collectively the "Public Art". An art
consultant, shall be responsible for selecting the Public Art for the Project ("Art Program
Consultant"). The Art Program Consultant may use other consultants to perform portions of the
Mural or other Public Art. Developer and the Art Program Consultant shall use reasonable efforts
to solicit input from the City regarding the selection of the Public Art. Per Tustin City Code section
9404(b)(4),if a Mural is chosen as the Public Art,the Mural will require approval of a Conditional
Use Permit. Other Public Art shall be subject to review and approval by the Director. Developer
shall provide the Public Art application/submission to the City within 270 days of the issuance of
the Project's first building permit, The Parties agree to act in good faith to agree upon the Public
Art. If the Director does not approve the Public Art within 90 days of submission by Developer,
then Developer, at its sole option, may choose to pay the City $100,000 to be used by the City to
provide public art outside the Project site. Such payment shall constitute complete compliance
with this Section 4.14. If the Parties agree upon the Public Art, the Public Art shall be completed
prior to issuance of the Project's final certificate of occupancy.
4.1.5 Park Impact Fees. Pursuant to the provisions of the Tustin Municipal Code,
Developer is obligated to pay park impact fees. City agrees that it shall use good faith efforts to
invest the park fees paid by Developer to fund improvements to Pine Tree Park, Frontier Park
and/or other park improvements within the Red Hill Avenue Specific Plan area. In addition, as
specified in the Density Bonus and Voluntary Workforce Housing Incentive Agreement between
the Parties,City agrees that it shall not collect park fees from Developer for the 6 Very Low income
housing units of the Project.
4.2 Effect of Public Benefits Default.
Notwithstanding any other provision of this Agreement to the contrary, if any payment
under this Article 4 is not made or any obligation requiring performance is not timely performed
by Developer. Subject to the provisions of Section 7.1 of this Agreement, the City may withhold
further issuance of building permits or other approvals, including final maps, for the Project and
the Property, until such time as Developer has made the required payment or undertaken the
required performance.
5. Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized herein
or pursuant to California Government Code Section 65869.5,this Agreement shall be enforceable
1596301.1
DRAFT
7/21/21
by either Party despite any change in any applicable general or specific plan, zoning, subdivision,
or building regulation or other applicable ordinance or regulation adopted by City (including by
City's electorate)that purports to apply to any or all of the Property.
6. Annual Review of Developer's Compliance With Agreement.
6.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code Section 65865.1 and Tustin City Code Section 9617, as the same may be amended from time
to time. Developer (including any successor to the owner executing this Agreement on or before
the date the Effective Date) shall pay City a reasonable fee in an amount City may reasonably
establish from time to time to cover the actual and necessary costs for the annual review. City's
failure to timely provide or conduct an annual review shall not constitute a Default hereunder by
City.
6.2 Developer Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Developer is required to demonstrate good faith
compliance with the terms of the Agreement. Developer agrees to furnish such evidence of good
faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days
prior to each anniversary of the Effective Date during the Term.
6.3 Procedure.
The City shall conduct its annual review of the Agreement in accordance with Tustin City
Code Section 9617, as the same may be amended from time to time.
6.4 Annual Review a Non-Exclusive Means for Determining and Requiring Cure of
Developer's Default.
The annual review procedures set forth in this Article 6 shall not be the exclusive means
for City to identify a Default by Developer or limit City's rights or remedies for any such Default.
7. Events of Default.
7.1 General Provisions.
In the event of any default,breach, or violation of the terms of this Agreement("Default"),
the Party alleging a Default shall have the right to deliver a written notice (each, a "Notice of
Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged
Default and a reasonable manner and sufficient period of time (ten (10) days if the Default relates
to the failure to timely make a monetary payment due hereunder and thirty (30) days in the event
of non-monetary Defaults) in which the Default must be cured(the"Cure Period"). Developer or
City, as applicable, shall have the ability to contest the validity of the Default for a period of five
(5) days after Developer or City receives the written Notice of Default. The Parties shall meet and
confer in good faith for fifteen (15)days to attempt to resolve the validity of the Notice of Default.
If the Parties are unable to resolve the validity of the Notice of Default after this meet and confer
1596301.1
DRAFT
7/21/21
period,the Cure Period timeframes specified in this Section 7.1 shall apply During the Cure Period,
the Party charged shall not be considered in Default for the purposes of termination of this
Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure
Period, then the Default thereafter shall be deemed not to exist. If however, a non-monetary
Default cannot be cured within such thirty (30) day period, as long as the defaulting Party does
each of the following:
i. notifies 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;
ii. notifies the non-defaulting Party in writing of the defaulting Parry's
proposed course of action to cure the Default;
iii. promptly commences to cure the Default within the thirty (30) day
period;
iv. makes periodic written reports to the non-defaulting Party as to the
progress of the program of cure; and
V. 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.
7.2 City's Remedies.
In the event of a Default by Developer under this Agreement that is not cured during the
Cure Period, City 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 7.7 below with respect to recovery of legal
expenses, City agrees and covenants on behalf of itself and it successors and assigns, not to sue
Developer for damages or monetary relief for any breach of this Agreement or arising out of or
connected with any dispute, controversy or issue regarding the application or effect of this
Agreement, or for general, special, compensatory, expectation, anticipation, indirect,
consequential, exemplary or punitive damages ("Damages") arising out of or connected with any
dispute,controversy,or issues regarding the application or effect of this Agreement,the Applicable
Approvals, the Development Plan, the Development Regulations, any Subsequent Development
Approvals, or any permits or entitlements sought in connection with development or use of the
Property or Project, or any portion thereof. City acknowledges that Developer would not have
entered into this Agreement if Developer could be held liable for Damages for any default or
breach arising out of this Agreement and that City has adequate remedies other than Damages, to
secure Developer's compliance with its obligations under this Agreement. Therefore, City agrees
that Developer, its officers, employees and agents shall not be liable for any Damages and that this
Section shall apply to any successor, assignee or transferee of the Developer. The limitation of
Damages specified in this Section 7.3 does not preclude City from recovering from Developer all
costs and expenses, including attorneys' fees, specified in Section 7.7 of this Agreement.
Furthermore, City, in addition to or as an alternative to exercising the remedies in this Section 7.2,
1596301.1
DRAFT
7/21/21
in the event of a material default by Developer,may give notice of its intent to terminate or modify
this Agreement pursuant to Tustin City Code Section 9618, in which event the matter shall be
scheduled for consideration and review by the City Council. 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).
7.3 Developer's Remedies.
In the event of a Default by that City under this Agreement that is not cured during the
Cure Period, Developer shall be entitled to any or all of the following remedies: (1) Seeking
mandamus or special writs, injunctive relief, or specific performance of this Agreement;
(2) Modifications or termination of this Agreement; or (3) Seeking any other remedy available at
law or in equity, provided, however, except as provided in Section 7.7 below with respect to
recovery of legal expenses, Developer agrees and covenants on behalf of itself and it successors
and assigns, not to sue City for damages or monetary relief for any breach of this Agreement or
arising out of or connected with any dispute, controversy or issue regarding the application or
effect of this Agreement, or for general, special, compensatory, expectation, anticipation, indirect,
consequential, exemplary or punitive damages ("Damages") arising out of or connected with any
dispute,controversy,or issues regarding the application or effect of this Agreement,the Applicable
Approvals, the Development Plan, the Development Regulations, any Subsequent Development
Approvals, or any permits or entitlements sought in connection with development or use of the
Property or Project, or any portion thereof. Developer acknowledges that City would not have
entered into this Agreement if City could be held liable for Damages for any default or breach
arising out of this Agreement and that Developer has adequate remedies other than Damages, to
secure City's compliance with its obligations under this Agreement. Therefore, Developer agrees
that City, its officers, employees and agents shall not be liable for any Damages and that this
Section shall apply to any successor, assignee or transferee of the Developer. The limitation of
Damages specified in this Section 7.3 does not preclude Developer from City all costs and
expenses, including attorneys' fees, specified in Section 7.7 of this Agreement.
7.4 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that Party's
right to deliver a future Notice of Default of the same or any other Default.
7.5 Additional City Remedy for Developer's Default.
In the event of any Default by Developer, in addition to any other remedies which may be
available to City, whether legal or equitable, City shall be entitled to receive and retain any
Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications, or improvements to public property which it may have received prior to Developer's
Default without recourse from Developer or its successors or assigns.
7.6 No Personal Liability, o�y or Developer Officials, Employees, or Agents.
No City or Developer official, employee, or agent shall have any personal liability
hereunder for a Default by City or Developer of any of its obligations set forth in this Agreement.
1596301.1
DRAFT
7/21/21
7.7 Recovery of Legal Expenses by Prevailing Part. icy Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Parry shall recover all of its actual and reasonable costs and expenses,regardless of
whether they would be recoverable under California Code of Civil Procedure Section 1033.5 or
California Civil Code Section 1717 in the absence of this Agreement. These costs and expenses
include court costs, expert witness fees, attorneys' fees, and costs of investigation and preparation
before initiation of the Action. The right to recover these costs and expenses shall accrue upon
initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or
decision. The maximum hourly rate for attorneys which are recoverable under this Section 7.7 is
$200/hour.
8. Force Majeure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations or court actions.
Except as specified above, nonperformance shall not be excused because of the act or omission of
a third person. Performance by any Party of its obligations hereunder shall be excused and the
required date for performance thereof shall be extended day for day during any period of
"Permitted Delay" as hereinafter defined. For purposes hereof, Permitted Delay shall mean delay
beyond the reasonable control and without the fault of the Party claiming the delay (and despite
the good faith efforts of such Party). Any Party claiming a Permitted Delay shall notify the other
Party (or Parties) in writing of such delay within 30 days after the commencement of the delay,
which notice shall specify the nature and estimated length of the Permitted Delay ("Permitted
Delay Notice"). An extension of time hereunder for any Permitted Delay shall be for the period of
the Permitted Delay and shall be deemed granted if the Party receiving the Permitted Delay Notice
does not object to such extension in writing, as not complying with the provisions of this Section,
within 15 days after receiving the Permitted Delay Notice. Upon such an objection, the Parties
shall meet and confer within 30 days after the date of the objection in a good faith effort to resolve
their disagreement as to the existence and length of the Permitted Delay.
9. Indemnity Obligations of Developer.
9.1 Indemnity Arising From Acts or Omissions of Developer.
Except to the extent caused by the intentional misconduct or actively negligent acts, errors
or omissions of City or one or more of City's officials, employees, agents, attorneys and
contractors (collectively, the "City's Affiliated Parties"), Developer shall indemnify, defend, and
hold harmless City and City's Affiliated Parties from and against all actions, suits, claims,
liabilities, losses, damages, penalties, obligations and expenses (including but not limited to
attorneys' fees, expert witness fees and court costs) (collectively, a "Claim") that may arise,
directly or indirectly,from the acts, omissions, or operations of Developer or Developer's officers,
agents, contractors, subcontractors, agents, or employees in the course of Development of the
Project or any other activities of Developer relating to the Property or pursuant to this Agreement.
City shall have the right to select and retain counsel to defend any Claim filed against City and/or
1596301.1
DRAFT
7/21/21
any of City's Affiliated Parties, and Developer shall pay the reasonable cost for defense of any
Claim. The indemnity provisions in this Section 9.1 shall be effective on the date on which the
Adopting Ordinance is approved by the City Council and shall survive the Termination Date.
Notwithstanding the foregoing, Developer's indemnity obligations specified in this Section 9.1
regarding Developer's design, construction or dedication of public improvements shall terminate
one (1) year after City accepts Developer's offer of dedication of public improvements.
9.2 Third Party Litigation._
In addition to its indemnity obligations set forth in Section 9.1,Developer shall indemnify,
defend, and hold harmless City and City's Affiliated Parties from and against any Claim against
City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this
Agreement, the Adopting Ordinance, the Development Plan, any of the Development Regulations
for the Project (including without limitation any actions taken pursuant to CEQA with respect
thereto), any Subsequent Development Approval, or the approval of any permit or entitlement
granted pursuant to this Agreement. Said indemnity obligation shall include, without limitation,
payment of attorney's fees, expert witness fees, and court costs. City shall promptly notify
Developer of any such Claim and City shall cooperate with Developer in the defense of such
Claim. City shall be entitled to retain separate counsel to represent City against the Claim and the
City's defense costs for its separate counsel shall be included in Developer's indemnity obligation,
provided that such counsel shall reasonably cooperate with Developer in an effort to minimize the
total litigation expenses incurred by Developer. City's separate counsel's billing rates shall be
identical to the rates City pays for its typical municipal litigation rates for legal challenges of the
variety being defended. Provided that Developer has then paid in full all sums due to the City or
its counsel incurred pursuant to this Section and otherwise fully performed its indemnity
obligations hereunder, Developer shall be entitled to retain the same. The indemnity provisions in
this Section 9.2 shall be effective on the date on which the Adopting Ordinance is approved by the
City Council and shall survive the Termination Date.
9.3 Environmentallndemnity.
In addition to its indemnity obligations set forth in Section 9.1, from and after the date on
which the Adopting Ordinance is approved by the City Council, Developer shall indemnify,
defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims
for personal injury or death, property damage, economic loss, statutory penalties or fines, and
damages of any kind or nature whatsoever, including without limitation attorney's fees, expert
witness fees, and court costs, based upon or arising from any of the following: (i) the actual or
alleged presence of any Hazardous Substance on or under any of the Property in violation of any
applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance
from the Property through the soils or groundwater to a location or locations off of the Property;
and (iii)the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from
the Property and any other area disturbed, graded, or developed by Developer in connection with
Developer's Development of the Project. The aforementioned indemnity shall not apply(i)to any
pre-existing Hazardous Substance which may have existed prior to Developer's acquiring fee
simple title to the Property; (ii)if City was responsible for the creation of the Hazardous Substance;
or (iii) if the City had prior actual knowledge of the existence of the Hazardous Substance as of
the date of the Effective Date. The indemnity provisions in this Section 9.3 shall be effective on
1596301.1
DRAFT
7/21/21
the date on which the Adopting Ordinance is approved by the City Council and shall survive one
(1) year beyond the Termination Date.
9.4 Labor Laws.
Developer shall carry out the construction of the Project, including all improvements, in
conformity with all Development Regulations including all applicable federal and state labor laws
and regulations and shall investigate the applicability of and, if and to the extent applicable, pay
prevailing wages meeting the requirements of such laws and regulations;provided that Developer
reserves the right to reasonably contest such laws and regulations. Developer hereby agrees that,
with respect to the Project, Developer shall be fully responsible for determining whether the
foregoing wage requirements are applicable and agrees to indemnify, defend and hold the City and
its elected and appointed officials, employees, agents, attorneys, affiliates, representatives,
contractors, successors and assigns free and harmless from and against any and all Claims arising
from or related to compliance by Developer or Developer's officers, directors, employees, agents,
representatives, consultants and/or contractors (at every tier) in construction of the Project with
the prevailing wage requirements imposed by any applicable federal and State labor law.
10. Assignment.
10.1 Permitted Transfers.
Developer shall have the right, upon approval of City, which approval shall not be
unreasonably withheld, to sell, transfer or assign (hereinafter, collectively, a "Transfer")
Developer's interest in this Agreement and the Property, in whole or in part, to a third party
acquiring an interest or estate in the Property or any portion thereof(such successor, a"Permitted
Transferee") and such successor, as of the effective date of the Transfer, shall become the
"Developer" under this Agreement; provided, however, that no such Transfer shall violate the
provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local
subdivision ordinance and each Transfer shall be made in strict compliance with the conditions
precedent set forth in Sections 10.2 and 10.3. City shall promptly consider any Transfer request
submitted by Developer.Notwithstanding the foregoing,Developer shall have the right to Transfer
its interest in the Agreement to a "Developer Affiliate". A "Developer Affiliate" is an entity or
person that is directly or indirectly controlling, controlled by, or under common control with
Developer. In the case of a Transfer to a Developer Affiliate, Developer shall provide written
notification to City prior to the completion of such a Transfer.
10.2 CityApproval of Transferee.
Prior to the completion of any proposed Transfer, Developer (as transferor) shall:
i. notify City, in writing, of such proposed Transfer and, in order to
permit the City to make an informed decision to approve or disapprove the Transfer, provide to
the City such financial statements and evidence of the proposed Transferee's fitness, experience
and ability (or that of its senior managerial personnel) to comply with the obligations assumed;
and
1596301.1
DRAFT
7/21/21
ii. deliver to City a written assignment and assumption, executed in
recordable form by the transferring and successor Developer and in a form subject to the
reasonable approval of the City Attorney of City (or designee),pursuant to which the transferring
Developer assigns to the successor Developer and the successor Developer assumes from the
transferring Developer all of the rights and obligations of the transferring Developer with respect
to the Property, or interest in the Property, or portion thereof to be so Transferred, including in the
case of a partial Transfer the obligation to perform such obligations that must be performed outside
of the Property so Transferred that are a condition precedent to the successor Developer's right to
develop the portion of the Property so Transferred. Any Permitted Transferee shall have all of the
same rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with
respect to the portion of, or interest in, the Property sold, transferred, and assigned to such
Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the
Property, or interest in the Property,no such Permitted Transferee shall have the right to enter into
an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations
of the Developer with respect to the balance of the Property.
10.3 Ongoing Liability of Transferor.
Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and
severally liable to City, together with the successor Developer, to perform all of the transferred
obligations set forth in or arising under this Agreement unless there is full satisfaction of all of the
following conditions, in which event the transferring Developer shall be automatically released
from any and all obligations with respect to the portion of the Property so Transferred: (i) the
transferring Developer no longer has a legal or equitable interest in the portion of the Property so
Transferred other than as a beneficiary under a deed of trust; (ii)the transferring Developer is not
then in Default under this Agreement and no condition exists that with the passage of time or the
giving of notice, or both,would constitute a Default hereunder; (iii)the transferring Developer has
provided City with the notice and the fully executed written and recordable assignment and
assumption agreement required as set forth in Section 10.2(b); and (iv) the successor Developer
either(A)provides City with substitute security equivalent to any security previously provided by
the transferring Developer to City to secure performance of the successor Developer's obligations
hereunder with respect to the Property, or interest in the Property, or the portion of the Property so
Transferred or(B)if the transferred obligation in question is not a secured obligation,the successor
Developer either provides security reasonably satisfactory to City or otherwise demonstrates to
City's reasonable satisfaction that the successor Developer has the financial resources or
commitments available to perform the transferred obligation at the time and in the manner required
under this Agreement and the Development Regulations for the Project. In the case of partial
Transfers, a default under this Agreement by Developer shall not be considered or acted upon by
the City as a default by the Permitted Transferee and shall not affect the Permitted Transferee's
rights or obligations hereunder. Likewise, a default by a Permitted Transferee shall not be
considered or acted upon by the City as a default by Developer and shall not affect Developer's
retained rights and obligations hereunder. Notwithstanding the foregoing, if a breach of this
Agreement involves an obligation jointly held by both Developer and a Permitted Transferee, the
City may avail itself of the remedies specified in Sections 7.1 and 7.2 against both the Developer
and Permitted Transferee.
1596301.1
DRAFT
7/21/21
11. Mortgagee Rights.
11.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Developer in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
11.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,no
breach of this Agreement shall defeat,render invalid, diminish, or impair the lien of any Mortgage
made in good faith and for value. Any acquisition or acceptance of title or any right or interest in
the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale,
deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and
conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the
Property shall be entitled to the benefits arising under this Agreement.
11.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 11.3, a Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of Developer or
other affirmative covenants of Developer, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by Developer is a condition to the performance of a covenant by City,that performance
shall continue to be a condition precedent to City's performance.
11.4 Notice of Default to Mortgagee, Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of: (i) the results of the periodic review of compliance specified in Article 6 of this
Agreement, and(ii) any default by Developer of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right,but not an obligation,to cure the Default within
thirty (30) days after receiving a Notice of Default with respect to a monetary Default and within
sixty (60) days after receiving a Notice of Default with respect to a non-monetary Default. If the
Mortgagee can only remedy or cure a non-monetary Default by obtaining possession of the
Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and
continuity through a receiver or otherwise, and to remedy or cure the non-monetary Default within
sixty(60)days after obtaining possession and, except in case of emergency or to protect the public
health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to
terminate or substantially alter the rights of the Mortgagee until expiration of the sixty (60)-day
period. In the case of a non-monetary Default that cannot with diligence be remedied or cured
within sixty (60) days, the Mortgagee shall have additional time as is reasonably necessary to
remedy or cure the Default, provided the Mortgagee promptly commences to cure the non-
monetary Default within sixty (60) days and diligently prosecutes the cure to completion.
1596301.1
DRAFT
7/21/21
12. Miscellaneous Terms.
12.1 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO CITY: City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Manager
With a copy to: Woodruff, Spradlin Smart
555 Anton Boulevard, Ste 1200
Costa Mesa, CA 92626
Attn: David E. Kendig, Esq.
TO DEVELOPER: Irvine Asset Group, LLC
4000 MacArthur Boulevard, East Tower, Suite 600
Newport Beach, CA 92660
Attn: Craig Swanson
With a copy to: Allen Matkins, LLP
1900 Main Street, 5th Floor
Irvine, CA 92614
Attn: John Condas, Esq.
Either Party may change the address stated in this Section 12.1 by delivering notice to the
other Party in the manner provided in this Section 12.1, and thereafter notices to such Party shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three
business days after deposit in the mail as provided above.
12.2 Project as Private Undertaking.
The Development of the Project is a private undertaking. Neither Party is acting as the
agent of the other in any respect, and each Party is an independent contracting entity with respect
to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no
partnership, joint venture, or other association of any kind. The only relationship between the
Parties is that of a government entity regulating the Development of private property by the owner
of the property.
1596301.1
DRAFT
7/21/21
12.3 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to the
extent consistent with and necessary to implement this Agreement. Upon the request of a Party at
any time,the other Party shall promptly execute, with acknowledgement or affidavit if reasonably
required, and file or record the required instruments and writings and take any actions as may be
reasonably necessary to implement this Agreement or to evidence or consummate the transactions
contemplated by this Agreement.
12.4 Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if such
is not the case,then the other Party shall describe the nature and amount of the actual or prospective
Default.
The Party requested to furnish an estoppel certificate shall execute and return the certificate
within thirty (30) days following receipt.
12.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and"may" is permissive.
12.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
12.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Parry, and failure by a Parry to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
12.8 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart, but all of which shall together constitute one and the same agreement.
1596301.1
DRAFT
7/21/21
12.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings,both written and oral,between the Parties with respect to the
subject matter addressed in this Agreement.
12.10 Severability.
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the provision
to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that
neither Party shall receive any of the benefits of the Agreement without the full performance by
such Party of all of its obligations provided for under this Agreement. Without limiting the
generality of the foregoing, the Parties intend that Developer shall not receive any of the benefits
of this Agreement if any of Developer's obligations are rendered void or unenforceable as the
result of any third party litigation, and City shall be free to exercise its legislative discretion to
amend or repeal the Development Regulations applicable to the Property and Developer shall
cooperate as required, despite this Agreement, should third party litigation result in the
nonperformance of Developer's obligations under this Agreement. The provisions of this
Section 12.10 shall be effective on the date on which the Adopting Ordinance is approved by the
City Council and shall survive the Termination Date.
12.11 Developer Deposit.
Developer shall, within ten (10) business days following approval by the City of this
Agreement, and as a condition to the effectiveness of this Agreement, deliver to the City in cash
or cash equivalent funds, a deposit in the amount requested by the City based on the City's
estimated City Processing Fees including staff time required to complete plan check and perform
inspections (the"City Costs Deposit"), which amount shall be deposited by City in an account in
a bank or trust company selected by the City and with no requirement that such account be interest
bearing. If any interest is paid on such account, such interest shall accrue to any balances in the
account for the benefit of the City. If at any time prior to the issuance of the final certificate of
occupancy for a residential unit on the Property, the amount of funds in the City Costs Deposit
account is depleted below Ten Thousand Dollars ($10,000), Developer shall be required to pay to
the City each time an additional Twenty Thousand Dollars ($20,000) or such other amount as the
City may specify as required in City's estimation to cover the cost of City Processing Fees,
including as required to complete plan check and perform inspections, which shall be credited to
the City Costs Deposit. Each such payment shall be deposited by the City into the City Costs
Deposit account and shall be applied to City Processing Fees. The City Costs Deposit has been
established to fund the City Processing Fees and may be used by the City for such purpose, and
shall be depleted accordingly. Immediately upon incurring any City Processing Fees or costs or
receipt of an invoice from third parties for same,the City shall have the right to deduct the amounts
due it on account thereof from the City Costs Deposit The City Costs Deposit shall be retained by
the City until the date of issuance of the final certificate of occupancy for a residential unit on the
Property and the remaining amount of the City Costs Deposit then held by the City, if any, shall
be promptly returned by the City to Developer thereafter, provided that the return of such funds
1596301.1
DRAFT
7/21/21
shall not terminate the obligations of Developer to pay all City Processing Fees arising or incurred
prior to issuance of the final certificate of occupancy for the final residential unit on the Property.
Developer shall pay any outstanding amounts due with respect to City Processing Fees to the City
within thirty (30) calendar days following receipt of an invoice from the City therefor, provided
that the City shall first apply the amount of the City Costs Deposit, if any, then held by it in
satisfaction of such invoice, and shall reflect the amount of such credit on the invoice.
12.12 Construction.
This Agreement has been drafted after extensive negotiation and revision. Both City and
Developer are sophisticated parties who were represented by independent counsel throughout the
negotiations or City and Developer had the opportunity to be so represented and voluntarily chose
to not be so represented. City and Developer each agree and acknowledge that the terms of this
Agreement are fair and reasonable, taking into account their respective purposes, terms, and
conditions. This Agreement shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption of contract construction or interpretation shall be used
to construe the whole or any part of this Agreement in favor of or against either Party.
12.13 Successors and Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with the
land. Each covenant to do or refrain from doing some act hereunder with regard to Development
of the Property: (i)is for the benefit of and is a burden upon every portion of the Property; (ii) runs
with the Property and each portion thereof, and(iii)is binding upon each Party and each successor
in interest during its ownership of the Property or any portion thereof. Every person or entity who
now or later owns or acquires any right, title, or interest in any part of the Project or the Property
is and shall be conclusively deemed to have consented and agreed to every provision of this
Agreement. This Section 12.13 applies regardless of whether the instrument by which such person
or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether
such person or entity has expressly entered into an assignment and assumption agreement as
provided for in Article 10 or is a Permitted Transferee under this Agreement.
12.14 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Developer. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or
be enforceable by any other person or entity.
12.15 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the
State of California, without regard to conflicts of law principles. Any action at law or in equity
arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the Superior
Court of the County of Orange, State of California, or the United States District Court for the
1596301.1
DRAFT
7/21/21
Central District of California. The Parties waive all provisions of law providing for the removal
or change of venue to any other court.
12.16 Section Headings.
All Section headings and subheadings are inserted for convenience only and shall not affect
construction or interpretation of this Agreement.
12.17 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A, B
C, and D are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT DESCRIPTION
DESIGNATION
A Legal Description of Property
B Site Plan
C On Street Parking Plan
D Conceptual Gateway Sign
12.18 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code Section 65868.5. The date of
recordation of this Agreement shall not modify or amend the Effective Date or the Termination
Date.
12.19 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.
1596301.1
DRAFT
7/21/21
12.20 Administrative Amendments.
Any amendment to this Agreement which does not relate to the Term, permitted uses of
the Project, provisions for the utilization of Residential Allocation Reservation, Development
Exactions, the conditions, terms, restrictions and requirements relating to the Applicable
Approvals or Public Benefits shall be considered an "Administrative Amendment". The City
Manager or his/her assignee is authorized to execute Administrative Amendments on behalf of
City and no action by the Planning Commission or the City Council(and no noticed public hearing)
shall be required before the Parties may enter into an Administrative Amendment. However, if in
the judgment of the City Manager it is determined that a proposal is not an Administrative
Amendment or that the proposed Administrative Amendment should be considered by the
approval bodies of the City,the 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 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.
[Signature page follows]
1596301.1
DRAFT
7/21/21
SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
"DEVELOPER"
Irvine Asset Group, LLC, a California limited liability
company
By:
Craig Swanson, [insert title]
"CITY"
CITY OF TUSTIN
By:
Letitia Clark, Mayor
ATTEST:
Erica N. Yasuda, City Clerk
APPROVED AS TO FORM:
David E. Kendig, City Attorney
1596301.1
DRAFT
7/21/21
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California )
County of Orange )
On before me, a Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California )
County of Orange )
On before me, a Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
1596301.1
DRAFT
7/21/21
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
[Next Page]
APN:
1596301.1
EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1, PER MAP FILED IN BOOK 52, PAGE 36 OF PARCEL MAPS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 2, OF PARCEL MAP, PER MAP FILED IN BOOK 52, PAGE 36 OF PARCEL
MAPS, IN THE OFFICE OF COUNTY RECORDER OF SAID COUNTY
SITE ADDRESS:
13751 RED HILL AVENUE, TUSTIN, CA 92780
13741 RED HILL AVENUE, TUSTIN, CA 92780
APPESSOR'S PARCEL NUMBER:
APN 500-141-10
APN 500-141-09
EXHIBIT B
SITE PLAN
[Next Page]
1596301.1
EXHIBIT B
Site Plan
L
L I, BUD 03
TV
7
I T
BLDGC
Lm
BLDG BLDG 8
7
r-mll
7Z
REb HILL AVENUE
71
LANDSCAPE PLAN
RED HILL MIXED-USE TuSTIN CA
IRVINE ASSET GROUP LLC ACARCHITECTS
40DO MAGARTHUR BLVD EAST TOWER SUITE 600 NEWPORT BEACH,CA 92660 144 NORTH ORANG1-
1F
9 A C,
49-763-4123 ",)
DRAFT
7121121
EXHIBIT C
STREET PARKING PLAN
[Next Page]
1596301.1
EXHIBIT C
Street Parking Plan
I _
L;
I!
J l t I
�I
bl I I
2 1
a LOADING ZONE Q
a
11 4R Al JFdY 1
61
-
vmW
m If Lw E
1 BLD6A IN -_ - lw lw JIB I
.1
awierr. C
�—
_.-i_ •-1 _ -- -----------'------- i
----------- -------- -------
------------ -
--------------------
-----'
Bio a
` r
MODIFY SIGNAL TO PROVIDE
NORHTBOOND LEFT TORN
PROTECTED OR PROTECTED/PERMISSIVE 6
PHASING
FIGURE 2
NO SCALE
PROPOSED SITE PLAN
TUSTIN RED HILL MIXED USE, TUSTIN
DRAFT
EXHIBIT D 7121121
CONCEPTUAL GATEWAY SIGN
[Next Page]
1596301.1
EXHIBIT D
Conceptual Gateway Sign
IJ
I 1 L
11 J
PERSPECTIVE VIEW
I I I 1 \II
III
v�un mini x�aatt sores
y�J
9tl� \ 7'Rill[I
z'Pn¢r � vrE40 mErt ssh ee
FRONT ELEVATION ,_i.o. SIDE ELEVATION VSE 414'
GATEWAY SIGN EXHIBIT
RED HILL MIXED-USE UTIN,CA JORIC a' � AO
IRVINE ASSET GROUP LLC AO ARCHITECTS Wkwit
4000 MACARTHUR BTW,EAST TOWER SE 6W NRWORT BEACH,CA 92660 144 NORTH ORANGE ST.,ORANGE,CA 92866 oss
949783-4123 V141d39A8W P ,
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Clerk
This document is recorded at the request and
APN: & for the benefit of the City of Tustin and
exempt from payment of a recording fee
pursuant to Government Code Sections 6103
and 27383.
DENSITY BONUS INCENTIVE AND VOLUNTARY WORKFORCE HOUSING
AGREEMENT
(137 Unit Apartment Community at 13751-13841 Redhill Avenue)
[THIS AGREEMENT CONTAINS SUBORDINATION REQUIREMENTS TO PRESERVE
PRIORITY OF LAND USE AND REGULATORY COVENANTS]
This DENSITY BONUS AND VOLUNTARY WORKFORCE HOUSING
AGREEMENT ("Agreement") is made as of this day of 2021 ("Date of
Agreement"), is entered into by and between the CITY OF TUSTIN, a municipal corporation
("Ci1y")and Irvine Asset Group, LLC, a California limited liability company("Developer"). City
and Developer are sometimes collectively referred to in this Agreement as the "Parties" and
individually as a"Party." All terms defined in this Agreement shall have the same meaning when
used herein.
RECITALS
A. Developer has an equitable interest in real property constituting 3.389 aces located
in the City of Tustin, County of Orange, State of California, located at 13751/13841 Red Hill
Avenue in the Red Hill Avenue Specific Plan (RHASP) (APN 9500-141-10 and 500-141-09) as
legally described on Exhibit A and depicted on Exhibit B attached to this Agreement(the "Site").
B. Developer submitted an application to City for approval of (1) Residential
Allocation Reservation (RAR) 2020-0001, (2) Design Review (DR) 2021-002, (3) Development
Agreement 2021-001, and (4) Subdivision (SUB) 2021-001/Tentative Tract Map (TTM) No.
17822 to develop the Property as a mixed-use development with 137 residential units and
approximately 7000 square feet of commercial uses ("Project").
C. The Project includes a Residential Allocation Reservation of 114"base"residential
units in conjunction with a twenty (20)percent affordable housing density bonus based upon the
provision of a minimum of six (6) (5%) very-low income housing units at the above-referenced
address.
1
1589250.1
D. City adopted Chapter 9B of Article 9 of the Tustin City Code ("Voluntary
Workforce Housing Ordinance") to enhance the public welfare by establishing policies which
require the development of housing affordable to households of extremely low, very low, low,
and moderate incomes, help meet the needs of the City's local workforce, help meet the City's
regional share of housing needs, and implement the goals and objectives of the Tustin General
Plan Housing Element, through the development of voluntary workforce housing incentive
program units within new residential development when a developer makes the voluntary
election to request the benefit of Residential Allocation Reservations (RARs) pursuant to a
Specific Plan, including the Red Hill Avenue Specific Plan (RHASP).
E. In accordance with the Workforce Housing Ordinance, Developer will provide six
(6) onsite units and made available to very low income households, as defined in Section 50105
of the California Health & Safety Code, and will also pay to City a voluntary workforce housing
incentive program in-lieu fee totaling Seven Hundred Thirty Seven Thousand Nine Hundred
Twenty-Two Dollars ($737,922.00).
F. Pursuant to California law(Government Code Section 65915, et seq.,) and Chapter
1 of Article 9 of the Tustin City Code(collectively,"Density Bonus Law"),the Project will include
a reduced parking ratio as provided in section 65915(p) of the Density Bonus Law, and the City
shall grant a waiver regarding the RHASP Open Space requirement in exchange for Developer's
agreement to restrict six (6) Housing Units at the Project to rental to and occupancy by Very Low
Income Households at an Affordable Rent(as those terms are defined below).
G. In connection with the density bonus and waiver granted to the Project,the granting
of RAR,the Density Bonus Law and the Workforce Housing Ordinance require Developer to enter
into this Agreement with City to implement Developer's affordable housing obligations at the
Project. Pursuant to the Density Bonus Law and the Conditions of Approval,this Agreement must
be executed and recorded against the Site in the Official Records of Orange County, California
prior to City's issuance of building permits for the Project.
H. Developer and City desire to enter into this Agreement to provide for Developer's
rental of six (6) Housing Units at the Project to Very Low Income Households at an Affordable
Rent, as required by the Density Bonus Law, Workforce Housing Ordinance and the Conditions
of Approval, in accordance with the terms, conditions, and restrictions set forth below in this
Agreement.
I. This Agreement shall be recorded, immediately after recordation of the
Development Agreement for the Project, in the Official Records of Orange County, California, as
senior, non-subordinate covenants and as an encumbrance running with the land for the full Term
(defined below)of this Agreement. In no event shall this Agreement be made junior or subordinate
to any deed of trust or other documents providing financing for the construction or operation of
the Project, or any other lien or encumbrance whatsoever for the entire Term of this Agreement.
Nor shall this Agreement be made junior or subordinate to any extension, amendment, or
modification of any lien or encumbrance recorded against the Site prior to the date hereof.
2
1589250.1
J. The foregoing Recitals are true and correct and constitute a substantive part of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the City and Developer agree as follows:
Section 1. Definitions.
(i) Affordable Rent. Affordable Rent means an affordable rent for Very Low
Income Households, as defined in California Health and Safety Code Section 50105. For Very
Low Income Households,Affordable Rent means the product of thirty(30)percent times fifty(50)
percent of the Area Median Income for Orange County adjusted for family size appropriate to the
unit. "Adjusted for family size appropriate to the unit" has the same meaning as in Health and
Safety Code Section 50052.5(h).
For purposes of this Agreement, "Affordable Rent" means the total of monthly payments
for(a)use and occupancy of each Affordable Unit and land and facilities associated therewith, (b)
any separately charged fees or service charges assessed by Developer which are required of all
tenants, other than security deposits, (c) a reasonable allowance for an adequate level of service of
utilities not included in(a)or(b) above,including garbage collection, sewer,water, electricity,gas
and other heating, cooking and refrigeration fuels, but not including telephone, internet,television
or digital access services, and (d) possessory interest, taxes or other fees or charges assessed for
use of the land and real property facilities associated therewith by a public or private entity other
than Developer. For purposes of subsection(c) above,the reasonable utility allowance shall be no
less than the amounts specified in the Orange County Community Services/Housing
Development's Utility Allowance Schedule, established every October. In the event that all utility
charges are paid by the landlord rather than the tenant,no utility allowance shall be deducted from
the rent.
(ii) Affordable Units. Affordable Units means the six (6) Housing Units at the
Project which are required to be made available for, rented to, and occupied by Very Low Income
Households paying an Affordable Rent, as set forth in more detail below. The Housing Units
range in size from approximately 515 square feet (studio), 700 square feet (one-bedroom), and
1,000 square feet (two-bedroom) units. The Affordable Units shall include a minimum of one
studio, three one-bedroom, and two two-bedroom units at all times.
(iii) Agreement. Agreement means this Density Bonus and Voluntary
Workforce Housing Agreement between City and Developer.
(iv) Area Median Income. Area Median Income means the median income as
determined and published annually for each county in California by the California Department of
Housing and Community Development.
(v) Com. City means the City of Tustin, a California municipal corporation.
(vi) Conditions of Approval. Conditions of Approval means the conditions
imposed by the City in connection with the approval of with the
3
1589250.1
approval of City Council Resolution No. , as referenced in that certain "Notice of
Agreement with Conditions of Approval and Discretionary Permit Approval".
(vii) Date of Agreement. Date of Agreement means the date set forth in the first
paragraph of this Agreement.
(viii) Density Bonus Law. Density Bonus Law means California Government
Code Section 65915, et seq., and Chapter 1 of Article 9 of the Tustin City Code. In the event of a
conflict between State and City law, Government Code Section 65915 et seq. shall control, unless
City law includes more favorable provisions than State law, concerning the production of
affordable housing units.
(ix) Developer. Developer means Irvine Asset Group, LLC, and all of its
successors and assigns.
(x) Housing Units. Housing Units means each of the 137 total residential rental
units to be constricted by Developer at the Site.
(xi) Program Administrator. Program Administrator means the City Housing
Authority's Director, or their designee.
NO Project. Project means the mixed-use development with 137 residential
units and approximately 7,000 square feet of commercial uses to be constructed by Developer on
the Site, which includes the Housing Units, all in accordance with Residential Allocation
Reservation (RAR) 2020-0001, (2) Design Review (DR) 2021-002, the Conditions of Approval,
and this Agreement.
(xiii) Site. Site means that certain real property constituting 3.389 aces located
in the City of Tustin, County of Orange, State of California, located at 13751/13841 Red Hill
Avenue in the Red Hill Avenue Specific Plan (RHASP) (APN 9500-141-10 and 500-141-09) as
legally described on Exhibit A and depicted on Exhibit B attached to this Agreement and
incorporated herein (the "Site").
(xiv) Term. Term means the term of effectiveness of this Agreement,which shall
continue for fifty five (55) years from the date within thirty (30) days after the date on which at
least fifty percent(50%) of the dwelling units in the Project are first occupied as memorialized by
the Certificate recorded pursuant to this Section ("Qualified Project Period"). Developer shall
execute and deliver to the City Program Administrator a copy of a certificate("Certificate"),in the
form attached as Exhibit D, identifying this date and the beginning date and earliest ending date
of the Qualified Project Period. Following approval of the Certificate by the Program
Administrator, the Developer shall record a copy of the Certificate with the County Recorder's
Office in the County of Orange. Notwithstanding the foregoing, if Developer fails to execute and
deliver the Certificate in a timely manner, such failure shall not constitute a breach of this
Agreement. However, the Qualified Project Period shall not commence before the date the
Certificate is delivered to the City Program Administrator.
(xv) Very Low Income Household. Very Low Income Household has the
meaning set forth in California Health and Safety Code Section 50105.
4
1589250.1
Section 2. Density Bonus and Waivers of Development Standards. As set forth in
the Conditions of Approval and the Density Bonus Law,Developer petitioned for and was granted
the following waivers as part of the City's approval of the Project:
(i) Densi . Bonus. By providing six (6) Affordable Units reserved for Very
Low Income Households (5% of 114 base residential units), the Density Bonus Law and the
Conditions of Approval permit the Developer to develop the Site with an additional density of
twenty (20) percent (or, 23 additional units), for a Project total of 137 total residential units, and
commercial space as provided in the RHASP for a Mixed-use project, RAR, Design Review, and
Development Agreement.
(ii) Reduction in Parking. Tustin City Code Section 9263 requires a minimum
of two (2) covered parking spaces for each dwelling unit, plus one (1) assigned guest space for
every four (4) units constructed in connection with multifamily residential developments similar
to the Project. Upon a developer's request, section 65915(p) of the Density Bonus Law prohibits
the City from requiring more than the following parking ratios for a density bonus project: one(1)
onsite parking space for each studio to one-bedroom unit,and one and one-half(1.5)onsite parking
spaces for each two to three-bedroom units. The Project will provide 227onsite parking spaces for
its residential units (exclusive of parking allocated for retail tenants). An additional thirty (32)
onsite parking spaces allocated to retail tenants and leasing office will be available for guest
parking after business hours.
(iii) Open Space. The RHASP requires 100 square feet of private open space
per unit and 200 square feet of common open space per unit for mixed use developments. As
authorized under the Density Bonus Law, the City agrees to grant a waiver of this requirement.
The Project will provide 8,909 square feet of private and 20,268 square feet of common open space
per unit.
(iv) Park Fee Relief. As authorized Tustin City Code, in order to facilitate the
construction of the Affordable Units, the City Council shall waive the Developer's obligation to
pay park impact fees for the six Affordable Units.
Section 3. No Further Incentives or Waivers. Developer acknowledges and agrees
that the issuance of the density bonus, the reduction in parking spaces, the waiver of Open Space
requirements, and the waiver of the payment of park impact fees for the six Affordable Units set
forth in Section 2 are the only deviations from City rules and regulations which are needed in order
for the Affordable Units to be constructed.
Section 4. Workforce Housing Incentive Program In-Lieu Fee. Pursuant to Tustin
Municipal Code sections B9923(c) and B9932(b), prior to the issuance of any certificate of
occupancy for the Project, Developer shall pay to City an in-lieu fee totaling $737,922.00 (Seven
Hundred Thirty-Seven Thousand Nine Hundred Twenty Two Dollars), which is calculated by
multiplying the $12,946 voluntary housing incentive program in-lieu fee by 57 (one-half(1/2) the
114 base units provided on-site).
Section 5. Affordable Units. Developer hereby agrees to make available, restrict
occupancy to, and rent the Affordable Units at the Project to Very Low Income Households at an
5
1589250.1
Affordable Rent. The six (6) Affordable Units shall be "floating" units that are not permanently
designated; however, at no time shall all six (6) Affordable Units be congregated in a certain
section of the Project. The unit size of the Affordable Units shall range in size from approximately
515 to 1,000 square feet. The six (6) Affordable Units shall consist of studio, one-, and two-
bedroom units that are part of the Project. A minimum of one studio,three one-bedroom, and two
two-bedroom units shall be reserved and allocated at all times. In accordance with Tustin City
Code Section 9131(f), all Affordable Units shall be of similar design and appearance of the total
Proj ect.
(a) A person or family (i.e., a "tenant household") who qualifies as a
Very Low Income Household at the time he/she/it first occupies an Affordable Unit shall be
deemed to continue to be so qualified until such time as the annual recertification of such tenant
household's income in accordance with Section 14 below demonstrates that such tenant household
no longer qualifies as a Very Low Income Household. Moreover, a unit previously occupied by a
Very Low Income Household and then vacated shall be considered occupied by such Very Low
Income Household for a temporary period until reoccupied, at which time the character of the unit
shall be re-determined. In no event shall such temporary period exceed thirty-one(3 1)days,unless
there has been damage to the Affordable Unit or other circumstances which requires greater than
31 days to correct and re-lease. In any such event, the Developer shall act in good faith and make
all commercially reasonable efforts to correct and release the Affordable Unit as quickly as
possible.
(b) At such time as a tenant household occupying an Affordable Unit
ceases to qualify as a Very Low Income Household, the unit occupied by such tenant household
shall cease to be an Affordable Unit. Once a Very Low Income Household tenant vacates an
Affordable Unit, Developer shall replace each such Affordable Unit by designating the next
available unit and any necessary units thereafter as an Affordable Unit. For purposes of this
Agreement, such designated unit will be considered an Affordable Unit if it is held vacant and
available for occupancy by a Very Low Income Household and, upon occupancy, the income
eligibility of the tenant household as a Very Low Income Household is verified (as established in
Section 14 of this Agreement) and the tenant household pays an Affordable Rent.
(c) In the event a tenant household occupying an Affordable Unit
initially qualifies as a Very Low Income Household but the income of such tenant household
increases, such increase shall not be deemed to result in a violation of the restrictions of this
Agreement concerning limitations upon income of occupants,provided that the occupancy by such
household is for a reasonable time of not to exceed one year(measured from the time the income
of the household ceases to qualify as a Very Low Income Household), at which time the Housing
Unit shall cease to be an Affordable Unit and the provisions of the immediately preceding
paragraph shall apply.
Section 6. Use of the Site. All uses conducted on the Site,including,without limitation,
all activities undertaken by the Developer pursuant to this Agreement, shall conform to all
applicable provisions of the Tustin City Code and other applicable federal, state, and local laws,
rules, and regulations. The Project shall at all times during the term of this Agreement be used as
a mixed-use development with 137 residential units and none of the Housing Units in the Project
shall at any time be utilized as a hotel, motel, dormitory, fraternity or sorority house, rooming
6
1589250.1
house,hospital,nursing home, sanitarium or rest home,Notwithstanding the foregoing,Developer
shall not be obligated to insure that all of the Housing Units are occupied. All of the community
facilities and any social programs provided to the Project's residents shall be available at all times
on an equal, non-discriminatory basis to residents of all Housing Units at the Project.
Section 7. Duration of Affordability Requirements. The Affordable Units shall be
subject to the requirements of this Agreement throughout the entire Term of this Agreement.
Section 8. Construction of Affordable Units. The Affordable Units shall be
constructed and completed concurrently with the non-restricted Housing Units in the Project.
Section 9. Occupancy Limits. The maximum occupancy for each of the Housing Units
shall not exceed 1 persons per studio and two persons per bedroom, plus one, as set forth in the
Conditions of Approval.
Section 10. Maintenance. Developer shall maintain or cause to be maintained the
interior and exterior of the Project and the Site in a decent, safe and sanitary manner, and in
accordance with the standard of maintenance of first-class mixed use residential/commercial
complexes within Orange County. If at any time Developer fails to maintain the Project or the
Site in accordance with this Agreement and such condition is not corrected within five (5) days
after written notice from City with respect to graffiti, debris, and waste material, or thirty(30) days
after written notice from City with respect to general maintenance, landscaping and building
improvements, then City, in addition to whatever remedy it may have at law or at equity, shall
have the right to enter upon the applicable portion of the Project or the Site and perform all acts
and work necessary to protect, maintain, and preserve the Project and the Site, and to attach a lien
upon the Site, or to assess the Site, in the amount of the expenditures arising from such acts and
work of protection, maintenance, and preservation by City and/or costs of such cure, including a
reasonable administrative charge,which amount shall be promptly paid by Developer to City upon
demand. City shall provide twenty four (24) hours' written notice to Developer before entering
the Project. Notwithstanding the foregoing,the City shall not avail itself of the remedies specified
in this Section if(i)the Project is damaged due to storms, fires or floods; or(ii) despite good faith
efforts Developer is unable to correct such conditions within the timeframes specified in this
Section due to the scope of damage, City shall provide Developer additional time to remedy such
conditions. In the case of such damage, Developer shall use good faith efforts to remedy such
damage as quickly as reasonably possible.
Section 11. Marketing Program. Each Affordable Unit shall be leased to Very Low
Income Households selected by Developer who meet all of the requirements provided herein. Prior
to the issuance of a certificate of occupancy for the Project, Developer shall prepare and obtain
City's approval, which approval shall not be unreasonably withheld, of a marketing program for
the leasing of the Housing Units at the Project ("Marketing Program"). The leasing of the
Affordable Units shall thereafter be marketed in accordance with the Marketing Program as the
same may be amended from time to time with City's prior written approval,which approval shall
not unreasonably be withheld. Developer shall provide City with periodic reports with respect to
the leasing of the Housing Units in accordance with Sections 14 and 15. City shall have thirty(30)
days to review and either approve or deny the Marketing Program. If the City fails to provide
7
1589250.1
Developer with City's approval or denial of the Marketing Program within this thirty day period,
the Marketing Program shall be deemed approved.
Section 12. Management Plan. Prior to the issuance of the certificate of occupancy for
the Project, Developer shall submit for the reasonable approval of City a "Management Plan"
which sets forth in detail Developer's property management duties, a tenant selection process in
accordance with this Agreement, a security system and crime prevention program, the procedures
for the collection of rent, the procedures for eviction of tenants, the rules and regulations of the
Site and manner of enforcement, a standard lease form, an operating budget, the identity of the
professional property management company to be contracted with to provide property
management services at the Site ("Property Manager"), and other matters relevant to the
management of the Site. The Management Plan shall only govern management of the Affordable
Units and the Project common areas. The Management Plan shall require Developer to adhere to
a fair lease and grievance procedure, and the right for management to pursue every legal avenue
to evict a tenant for non-compliance with Rules and Regulations, drug use, disruptive behavior,
etc, or convicted of a crime. The management of the Site shall be in compliance with the
Management Plan as approved by City. City shall have thirty (30) days to review and either
approve or deny the Management Plan. If the City fails to provide Developer with City's approval
or denial of the Management Plan within this thirty day period, the Management Plan shall be
deemed approved. If City determines that the performance of the Property Manager, solely
regarding its management of the Affordable Units, is deficient based upon the standards set forth
in the approved Management Plan and in this Agreement, City shall provide written notice to
Developer of such deficiencies and Developer shall use its best efforts to correct such deficiencies.
In the event that such deficiencies have not been cured within the time set forth in Section 19
hereof, City shall have the right to require Developer to immediately remove and replace the
Property Manager with another property manager or property management company which is
reasonably acceptable to the City Manager, which is not related to or affiliated with Developer or
the City, and which has not less than five(5)years' experience in property management,including
significant experience managing housing facilities of the size, quality and scope of the Project.
Notwithstanding the foregoing, City's ability to replace the Property Manager shall only apply to
management of the Affordable Units; in no case shall City have any right to replace the Property
Manager for management of all non-Affordable Units.
Section 13. Selection of Tenants. Developer shall be responsible for the selection of
tenants for the Affordable Units in compliance with lawful and reasonable criteria and the
requirements of this Agreement. To the extent permitted by law, a reasonable preference in the
leasing of the Affordable Units shall be given to prospective tenants that live or work in the City.
In marketing and leasing the Affordable Units, Developer shall establish a priority system that
ensures that prospective rental applicants who are currently employed in or currently residing in
the City of Tustin have priority over an applicant that does not currently reside or is not employed
in the City of Tustin(hereinafter referred to as the "Local Preference Policy",adopted by the Tustin
City Council on November 6, 2007). To qualify for the Local Preference, Developer shall employ
the criterion that an applicant must demonstrate a minimum of six months of current employment
or current residency in Tustin. Developer shall refer to the Local Preference Policy for detailed
information required to be submitted by Developer for verification of residency and local
employment to ensure Developer's compliance with the Local Preference Policy. City shall have
8
1589250.1
no authority whatsoever concerning selection of tenants for the Affordable Units or any of the
Housing Units.
Prior to the rental or lease of an Affordable Unit to a tenant(s), Developer shall require the
tenant(s) to execute a written lease and to complete a Tenant Income Verification Form (in
substantially the form attached hereto as Exhibit B) certifying that the tenant(s) occupying the
Affordable Unit is/are a Very Low Income Household and otherwise meet(s) the eligibility
requirements established for the Affordable Unit. Developer shall verify the income of the
tenant(s) as set forth in Section 14 below.
Section 14. Income Verification and Certification.
(a) Following the initial lease-up of the Project, and annually thereafter
throughout the Term of this Agreement, Developer shall submit to City, at Developer's expense, a
summary of the unit size, name of tenant(s), income, household size and rent payable by each of the
tenants of the Affordable Units. At City's request,Developer shall provide to City completed income
computation and certification forms for each household,in substantially the form of the Tenant Income
Certification Form attached hereto as Exhibit B or such other form as may reasonably be requested by
City, for any Very Low Income Households renting the Affordable Units at the Project. Developer
shall obtain,or shall cause to be obtained by the Property Manager,a certification from each household
leasing an Affordable Unit demonstrating that such household meets the applicable income
requirements and eligibility requirements established for a Very Low Income Household renting such
Affordable Unit.
(b) Throughout the Term of this Agreement, Developer shall annually
complete and submit to City a Certificate of Continuing Project Compliance in the form attached
hereto as Exhibit C, or such other form as may reasonably be requested by City.
Section 15. Monitoring and Recordkeeping. Representatives of City shall be entitled
to enter the Site,upon at least thirty-six(36)hours' written notice to Developer and to the Property
Manager,to monitor compliance with this Agreement, and shall be entitled, at City's sole cost and
expense, to inspect the records of the Project and to conduct an independent audit or inspection of
such records at a location within the City that is reasonably acceptable to the City Manager.
Developer agrees to cooperate with City in making the Site and the records of the Project available
for such inspection or audit. Developer agrees to maintain each record of the Project for no less
than 2 years after creation of each such record.
Section 16. Indemnity. Developer shall, at its expense, defend(with counsel acceptable
to City and subject to approval by Developer), indemnify, and hold harmless City, and their
officers,agents, employees and representatives from any and all losses,liabilities, claims,lawsuits,
causes of action,judgments, settlements, court costs, attorneys' fees, expert witness fees, and other
legal expenses, costs of evidence of title, costs of evidence of value, and other damages of
whatsoever nature arising out of or in connection with Developer's failure to perform Developer's
obligations under this Agreement, Developer's ownership or operation of the Site, or the
development of the Project, except for such liability arising from the gross negligence or willful
misconduct of City.
9
1589250.1
Section 17. Agreement to be Recorded;Covenants Run with the Land;Priority. This
Agreement shall be recorded, prior to the issuance of building permits for the Project, in the
Official Records of Orange County, California, as senior, non-subordinate covenants and as an
encumbrance running with the land for the full Term of this Agreement. In no event shall this
Agreement be made junior or subordinate to any deed of trust or other documents providing
financing for the construction or operation of the Project, or any other lien or encumbrance
whatsoever for the entire Term of this Agreement. Nor shall this Agreement be made junior or
subordinate to any extension, amendment, or modification of any lien or encumbrance recorded
against the Site prior to the date hereof. Prior to recordation of this Agreement, Developer shall
provide City with evidence satisfactory to the City that all deeds of trust, liens, encumbrances, or
other documents recorded against the Site since , 2021, if any, have been or will
be subordinated to this Agreement, at Developer's sole cost and expense.
Section 18. Mortgage Protection. No breach or default under this Agreement shall
defeat, terminate, extinguish, render invalid or otherwise affect the lien of any junior mortgage or
deed of trust encumbering the Site, the Project, or any part thereof or interest therein.
Section 19. Default. An event of default occurs under this Agreement when: (a)there is
a breach of any condition, covenant or promise set forth herein; (b)written notice thereof has been
given to the defaulting party; and (c) such breach has not been cured within thirty (30) days after
such notice was given to the defaulting party or, if such breach cannot reasonably be cured within
such thirty (30) day period, the defaulting party fails to commence to cure the breach and/or fails
thereafter to diligently proceed to complete such cure. A waiver by either party of any such breach
shall not be construed as a waiver of any succeeding breach of the same or other condition,
covenant or promise.
Section 20. Remedies. The occurrence of an event of default hereunder shall give the
non-defaulting party the right to proceed with any and all remedies available at law or equity. Such
remedies may include an action for damages, an action or proceeding for specific performance,
and/or an action or proceeding for injunctive relief. Such actions or proceedings may require the
defaulting party to pay damages, to perform its obligations and covenants under this Agreement,
and to enjoin or cease and desist from acts which may be unlawful or in violation of the provisions
of this Agreement.
Section 21. Additional Remedies for Certain Defaults; Remedy For Excessive Rent
Charge.
(a) It shall constitute a default for the qualifying Affordable Unit tenant
to pay more than the maximum allowable Affordable Unit rent, or for Developer to charge the
Affordable Unit tenant more than the maximum allowable Affordable Unit rent. Notwithstanding
the foregoing, it shall not be a breach of this Agreement for Developer to receive any subsidies or
other consideration from any other source than the Affordable Unit tenant. In the event that the
Affordable Unit tenant pays such higher rental amounts, in addition to any other legal or equitable
remedy that the City shall have for such default, the Developer shall be required to pay to the
Affordable Unit tenant an amount equal to the difference between the Affordable Rent that should
have been charged and the amount of the excess rent received from the tenant, plus interest
compounded at the maximum rate allowable for judgments. Notwithstanding the foregoing, the
10
1589250.1
parties agree that if there is a dispute as to the rental rate(s) of Affordable Units, the parties shall
meet and confer in good faith to try to resolve such dispute.
(b) It shall also constitute a default for the Developer to fail to rent any
of the required Affordable Units to a Very Low Income Household, or to knowingly, solely based
upon Developer's actual knowledge, initially rent any Affordable Unit to a tenant who is not a
Very Low Income Household. If Developer chooses, in its reasonable business judgment, (i) to
undertake repairs or improvements to Affordable Units, once such Affordable Unit(s) becomes
vacant, or(ii)if due to a dispute between Developer and the Affordable Unit tenant,the Affordable
Unit cannot be rented to a new Affordable Unit tenant, such failure to rent an Affordable shall not
constitute a default. In the event the Developer violates this provision, in addition to any other
remedy at law or equity that the City shall have for such default, the Developer, for each separate
violation, shall be required to pay to the City an amount equal to the total rent the Developer
received from such ineligible tenant,plus interest compounded at the maximum rate allowable for
judgments.
Section 22. Attorneys' Fees and Costs. In addition to any other remedies provided
hereunder or available pursuant to law, if either party to this Agreement commences an action
against the other party to this Agreement arising out of or in connection with this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs
of investigation, and costs of suit from the losing party. The maximum hourly rate for attorneys
which are recoverable under this Section 22 is $200/hour.
Section 23. Rights and Remedies Cumulative. The rights and remedies of the parties
are cumulative, and the exercise by either party of one or more of its rights or remedies shall not
preclude the exercise by it, at the same or different times, of any other rights or remedies for the
same default or any other default by the other party.
Section 24. Time of Essence. Time is expressly made of the essence with respect to the
performance by City and Developer of each and every obligation and condition of this Agreement.
Section 25. Third Party Beneficiaries. No persons or entities other than the parties and
their successors and assigns shall have any right of action under this Agreement.
Section 26. City Approvals and Actions. City shall maintain authority of this
Agreement and the authority to implement this Agreement through City Manager (or his duly
authorized representative). City Manager (or his designee) shall have the authority to make
approvals, issue interpretations, waive provisions, make and execute further agreements and/or
enter into amendments of this Agreement on behalf of City so long as such actions do not
materially or substantially change the uses or development permitted on the Site, or materially or
substantially add to the costs incurred or to be incurred by City as specified herein, and such
interpretations, waivers and/or amendments may include extensions of time to perform. All other
material and/or substantive interpretations, waivers, or amendments shall require the
consideration, action and written consent of the City.
Section 27. Successor and Assigns. This Agreement shall run with the land, and all of
the terms, conditions, restrictions, and covenants contained in this Agreement shall be binding
11
1589250.1
upon Developer, City, their permitted successors and assigns, and all successors in interest to all
or any portion of the Site or the Project. Developer shall have the right to assign its interest in this
Agreement. Whenever the terms "Developer" or "City" are used in this Agreement, such terms
shall include any other successors and assigns as herein provided. At least 20 days prior to a
transfer of any interest in the Site or the Project or any interest in Developer, Developer shall
provide written notice to the City of such transfer. Notwithstanding the foregoing, if Developer
transfers its interest to an entity or person that is directly or indirectly controlling, controlled by,
or under common control of Developer("Developer Affiliate"), Developer shall provide City with
at least 10 days' notice prior to a transfer of Developer's interest to a Developer Affiliate.
Section 28. Notices. Any notice or demand that shall be required or permitted by law or
any provision of this Agreement shall be in writing. If the notice or demand will be served upon
a Party, it either shall be personally delivered to the Party; deposited in the United States mail,
certified, return receipt requested, and postage prepaid; or delivered by a reliable courier service
that provides a receipt showing date and time of delivery with courier charges prepaid. The notice
or demand shall be addressed as follows:
TO CITY: City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Manager
Tustin Housing Authority
300 Centennial Way
Tustin, CA 92780
Attn: Executive Director
With a copy to: Woodruff, Spradlin Smart
555 Anton Boulevard, Ste 1200
Costa Mesa, CA 92626
Attn: David E. Kendig, Esq.
TO DEVELOPER: Irvine Asset Group, LLC
4000 MacArthur Boulevard, East Tower, Suite 600
Newport Beach, CA 92660
Attn: Craig Swanson
With a copy to: Allen Matkins, LLP
1900 Main Street, 5th Floor
Irvine, CA 92614
Attn: John Condas, Esq.
Either Party may change the address stated in this Section 28 by delivering notice to the
other Party in the manner provided in this Section 28, and thereafter notices to such Party shall be
addressed and submitted to the new address. Notices delivered in accordance with this Agreement
12
1589250.1
shall be deemed to be delivered upon the earlier of: (i)the date received or(iii)three business days
after deposit in the mail as provided above.
Section 29. Amendment. Any alteration,change or modification of or to this Agreement,
in order to become effective, shall be made in writing and in each instance signed on behalf of
each party. Each alteration, change, or modification to this Agreement shall be recorded against
the Site in the Official Records of Orange County, California. Notwithstanding the foregoing,the
parties acknowledge and agree that from time to time it may be beneficial for clarifications or
modifications to this Agreement to be made,which are not significant enough to warrant a formal
amendment of this Agreement. In the case of such clarifications or modifications,the parties agree
that the City Manager may, at his/her sole discretion, enter into such clarifications or
modifications,without the need to process a formal amendment to the Agreement, and without the
need to have this clarification or modification recorded in the Official Records of Orange County,
California.
Section 30. Legal Advice. Each party represents and warrants to the other the following:
they have carefully read this Agreement, and in signing this Agreement, they do so with full
knowledge of any right which they may have; they have received independent legal advice from
their respective legal counsel as to the matters set forth in this Agreement, or have knowingly
chosen not to consult legal counsel as to the matters set forth in this Agreement, and they have
freely signed this Agreement without any reliance upon any agreement, promise, statement or
representation by or on behalf of the other party, or their respective agents, employees or attorneys,
except as specifically set forth in this Agreement, and without duress or coercion, whether
economic or otherwise.
Section 31. Project as a Private Undertaking. It is specifically understood and agreed
by and between the parties hereto that the development of the Project is a private development,
that neither party is acting as the agent of the other in any respect hereunder, and that each party
is an independent contracting entity with respect to the terms, covenants and conditions contained
in this Agreement. No partnership,joint venture or other association of any kind is formed by this
Agreement. The only relationship between City and Developer is that of a government entity
regulating the development of private property and the owner of such property.
Section 32. Exhibits. This Agreement includes the following exhibits, each of which is
attached hereto and incorporated herein by this reference:
(i) Exhibit A: Legal Description of Site
(ii) Exhibit B: Tenant Income Verification Form
(iii) Exhibit C: Draft Certificate of Continuing Program Compliance
[Signatures appear on following page.]
13
1589250.1
IN WITNESS WHEREOF, City and Developer have executed this Density Bonus and
Voluntary Workforce Housing Agreement as of the date first set forth above.
"DEVELOPER"
Irvine Asset Group, LLC, a California limited liability
company
By:
Craig Swanson, [insert title]
"CITY"
CITY OF TUSTIN
By:
Letitia Clark, Mayor
ATTEST:
Erica N. Yasuda, City Clerk
APPROVED AS TO FORM:
David E. Kendig, City Attorney
14
1589250.1
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California )
County of Orange )
On before me, a Notary Public,
personally appeared who proved to me on the basis of
satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California )
County of Orange )
On before me, a Notary Public,
personally appeared who proved to me on the basis of
satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
15
1589250.1
16
1589250.1
EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1, PER MAP FILED IN BOOK 52, PAGE 36 OF PARCEL MAPS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 2, OF PARCEL MAP, PER MAP FILED IN BOOK 52, PAGE 36 OF PARCEL
MAPS, IN THE OFFICE OF COUNTY RECORDER OF SAID COUNTY
SITE ADDRESS:
13751 RED HILL AVENUE, TUSTIN, CA 92780
13741 RED HILL AVENUE, TUSTIN, CA 92780
ASSESSOR'S PARCEL NUMBER:
APN 500-141-10
APN 500-141-09
EXHIBIT B
TENANT INCOME VERIFICATION FORM
1589250.1
TENANT INCOME CERTIFICATION Effective Date:
❑ Initial Certification ❑ Recertification ❑ Other Move-In Date:
(MM-DD-YYYY)
PART I-DEVELOPMENT DATA
Property Name: County: TCAC#: BIN#:
Address: If applicable, CDLAC#:
Unit Number: #Bedrooms: Square Footage:
PART IL HOUSEHOLD COMPOSITION
❑Vacant(Check if unit was vacant on December 31 of the Effective Date Year)
HH Middle Relationship to Head Date of Birth Student Status Last 4 digits of
Mbr# Last Name First Name Initial of Household (MM/DD/YYYY) (Check One) Social Security#
1 HEAD FT❑/PT❑/NA❑
2 FT❑/PT❑/NA❑
3 FT❑/PT❑/NA❑
4 FT❑/PT❑/NA❑
5 FT❑/PT❑/NA❑
6 FT❑/PT❑/NA❑
7 FT❑/PT❑/NA❑
PART III.GROSS ANNUAL INCOME USE ANNUAL AMOUNTS
HH (A) (B) (C) (D)
Mbr# Employment or Wages Soc.Security/Pensions Public Assistance Other Income
TOTALS7$- $ $ $
Add totals from(A)through (D), above TOTAL INCOME(E): $
PART IV.INCOME FROM ASSETS
HH (F) (G) (H) (I)
Mbr# Type of Asset C/I Cash Value of Asset Annual Income from Asset
TOTALS: $ $
Enter Column(H)Total Passbook Rate
If over$5000 $ X 0.06% _ (J) Imputed Income $
Enter the greater of the total of column I,or J:imputed income TOTAL INCOME FROM ASSETS(K) $
(L)Total Annual Household Income from all Sources [Add(E)+(K)] $
HOUSEHOLD CERTIFICATION& SIGNATURES
The information on this form will be used to determine maximum income eligibility. Uwe have provided for each person(s)set forth in Part 11 acceptable verification of
current anticipated annual income. Uwe agree to notify the landlord immediately upon any member of the household moving out of the unit or any new member
moving in. Uwe agree to notify the landlord immediately upon any member becoming a full time student.
Under penalties of perjury,Uwe certify that the information presented in this Certification is true and accurate to the best of my/our knowledge and belief. The undersigned
further understands that providing false representations herein constitutes an act of fraud. False,misleading or incomplete information may result in the termination of
the lease agreement.
Signature (Date) Signature (Date)
Signature (Date) Signature (Date)
I Tenant Income Certification(April 2021)
PART V. DETERMINATION OF INCOME ELIGIBILITY
RECERTIFICATION ONLY:
TOTAL ANNUAL HOUSEHOLD Unit Meets Federal Current Federal LIHTC
INCOME FROM ALL SOURCES: Income Restriction at: Income Limit x 140%:
From item(L)on page 1 $ 060%050% $
Or Federal A.I.T.at: Household Income exceeds
Current Federal LIHTC Income Limit per
❑ 80%❑ 70%❑60%❑ 50% 140%at recertification:
Family Size(Federal Income Restriction at ❑40%❑30%❑20% ❑Yes ❑No
60%,50%or A.I.T.(20%-80%)): $ Unit Meets State Deeper
Targeting Income Restriction
If Applicable,Current Federal Bond at:
Income Limit per Family Size: $ o Household Size at Move-in:
/o
❑Other
Household Income as of Move-in: $
PART VI. RENT
Tenant Paid Monthly Rent: $ Federal Rent Assistance: $ *Source:
Monthly Utility Allowance: $ Non-Federal Rent Assistance: $ (*0-8)
Other Monthly Non-optional charges: $ Total Monthly Rent Assistance: $
GROSS MONTHLY RENT FOR UNIT: *Source of Federal Assistance
(Tenant paid rent plus Utility Allowance& 1 **HUD Multi-Family Project Based Rental Assistance(PBRA)
other non-optional charges) $ 2 Section 8 Moderate Rehabilitation
3 Public Housing Operating Subsidy
Maximum Federal LIHTC Rent Limit for 4 HOME Rental Assistance
this unit: $ 5 HUD Housing Choice Voucher(HCV),tenant-based
6 HUD Project-Based Voucher(PBV)
If Applicable,Maximum Federal&State 7 USDA Section 521 Rental Assistance Program
LIHTC Bond Rent Limit for this unit: $ 8 Other Federal Rental Assistance
Unit Meets Federal Rent Restriction at:
060%050% 0 Missing
Or Federal A.I.T.at: 080%070% ❑60% **(PBRA)Includes:Section 8 New Construction/Substantial Rehabilitation;
❑ 50% ❑40%❑30% Section 8 Loan Management;Section 8 Property Disposition;Section 202
❑20% Project Rental Assistance Contracts(PRAC)
If Applicable,Unit Meets Bond Rent
Restriction at: ❑ 60% ❑ 50%
Unit Meets State Deeper
Targeting Rent Restriction at: ❑Other: %
PART VII. STUDENT STATUS
*Student Explanation:
ARE ALL OCCUPANTS FULL TIME STUDENTS? If yes,Enter student explanation* 1 AFDC/TANF Assistance
(also attach documentation) 2 Job Training Program
❑Yes ❑No 3 Single Parent/Dependent Child
Enter 4 Married/Joint Return
1-5 5 Former Foster Care
PART VIII. PROGRAM TYPE
Identify the program(s)for which this household's unit will be counted toward the property's occupancy requirements.
Select one of the following. Select all that apply.
❑ 9%Allocated Federal Housing Tax Credit ❑ HOME(including TCAP)
❑ 4%Allocated Federal Housing Tax Credit ❑ CDBG
❑ Tax-Exempt Bond Only(No tax credits) ❑ Other HUD,including 202,811,and 236
❑National Housing Trust Fund
❑USDA Rural Housing Service,including 514,515,and 538
❑ Other state or local housing programs
SIGNATURE OF OWNER/REPRESENTATIVE
Based on the representations herein and upon the proof and documentation required to be submitted,the individual(s)named in Part II of this Tenant
Income Certification is/are eligible under the provisions of Section 42 of the Internal Revenue Code,as amended,and the Land Use Restriction
Agreement(if applicable),to live in a unit in this Project.
SIGNATURE OF OWNER/REPRESENTATIVE DATE
2 Tenant Income Certification(April 2021)
PART IX. SUPPLEMENTAL INFORMATION FORM
The California Tax Credit Allocation Committee(CTCAC)requests the following information in order to comply with the Housing
and Economic Recovery Act(HERA)of 2008,which requires all Low Income Housing Tax Credit(LIHTC)properties to collect and
submit to the U.S.Department of Housing and Urban Development(HUD),certain demographic and economic information on tenants
residing in LIHTC financed properties.Although the CTCAC would appreciate receiving this information,you may choose not to
furnish it.You will not be discriminated against on the basis of this information,or on whether or not you choose to furnish it.If you
do not wish to furnish this information,please check the box at the bottom of the page and initial.
Enter both Ethnicity and Race codes for each household member(see below for codes).
TENANT DEMOGRAPHIC PROFILE
HH Middle
Mbr# Last Name First Name Initial Race Ethnicity Disabled
1
2
3
4
5
6
7
The Following Race Codes should be used:
1—White—A person having origins in any of the original people of Europe,the Middle East or North Africa.
2—Black/African American—A person having origins in any of the black racial groups of Africa. Terms such as"Haitian"apply to this
category.
3—American Indian/Alaska Native—A person having origins in any of the original peoples of North and South America(including Central
America),and who maintain tribal affiliation or community attachment.
4—Asian—A person having origins in any of the original peoples of the Far East,Southeast Asia,or the Indian subcontinent:
4a—Asian India 4e—Korean
4b—Chinese 4f—Vietnamese
4c—Filipino 4g—Other Asian
4d—Japanese
5—Native Hawaiian/Other Pacific Islander—A person having origins in any of the original peoples of Hawaii,Guam, Samoa,or other
Pacific Islands:
5a—Native Hawaiian 5c—Samoan
5b—Guamanian or Chamorro 5d—Other Pacific Islander
6 —Other
7 —Did not respond.(Please initial below)
Note:Multiple racial categories may be indicated as such:31—American Indian/Alaska Native& White, 41—Asian& White, etc.
The Following Ethnicity Codes should be used:
1—Hispanic—A person of Cuban,Mexican,Puerto Rican,South or Central American,or other Spanish culture or origin,regardless of race.
Terms such as"Latino'or"Spanish Origin"apply to this category.
2—Not Hispanic—A person not of Cuban,Mexican,Puerto Rican,South or Central American,or other Spanish culture or origin,regardless
of race.
3—Did not respond.(Please initial below)
Disability Status:
1—Yes
If any member of the household is disabled according to Fair Housing Act definition for handicap(disability):
• A physical or mental impairment which substantially limits one or more major life activities;a record of such an impairment or
being regarded as having such an impairment. For a definition of"physical or mental impairment'and other terms used,please see
24 CFR 100.201,available at http://fairhousing.com/legal-research/hud-regulations/24-efr-100201-definitions.
• "Handicap"does not include current,illegal use of or addiction to a controlled substance.
• An individual shall not be considered to have a handicap solely because that individual is a transgender.
2—No
3—Did not respond(Please initial below)
❑ Resident/Applicant: I do not wish to furnish information regarding ethnicity,race and other household composition.
(Initials)
(HH#) 1. 2. 3. 4. 5. 6. 7.
3 Tenant Income Certification(April 2021)
INSTRUCTIONS FOR COMPLETING
TENANT INCOME CERTIFICATION
This form is to be completed by the owner or an authorized representative.
Part I-Development Data
Enter the type of tenant certification:Initial Certification(move-in),Recertification(annual recertification),or Other.If other,designate the purpose
of the recertification(i.e.,a unit transfer,a change in household composition,or other state-required recertification).
Effective Date Enter the effective date of the certification.For move-in,this should be the move-in date.
For annual income recertification's,this effective date should be no later than one year
from the effective date of the previous(re)certification.
Move-In Date Enter the most recent date the household tax credit qualified.This could be the move-in
date or in an acquisition rehab property,this is not the date the tenant moved into the
unit,it is the most recent date the management company income qualified the unit for
tax credit purposes.
Property Name Enter the name of the development.
County Enter the county(or equivalent)in which the building is located.
TCAC# Enter the project number assigned to the property by TCAC.Please include hyphens
between the state abbreviation,four digit allocating year,and project specific number.
For example:CA-2010-123
BIN# Enter the building number assigned to the building(from IRS Form 8609).
Address Enter the physical address of the building,including street number and name,city,state,
and zip code.
If applicable,CDLAC# If project is awarded 4%bonds please enter the project number assigned to the property
by CDLAC.Please include hyphens between the state abbreviation,four digit allocating
year,and project specific number.For example: 16-436
Unit Number Enter the unit number.
#Bedrooms Enter the number of bedrooms in the unit.
Square Footage Enter the square footage for the entire unit.
Vacant Unit Check if unit was vacant on December 31 of requesting year.For example,for the
collection of 2011 data,this would refer to December 31,2011.
Part II-Household Composition
List all occupants of the unit. State each household member's relationship to the head of household by using one of the following definitions:
H Head of Household S Spouse U Unborn Child/Anticipated
A Adult Co-Tenant O Other Family Member Adoption or Foster
C Child F Foster child(ren)/adult(s)
L Live-in Caretaker N None of the above
Date of Birth Enter each household member's date of birth.
Student Status Check FT for Full-time student,PT for Part-time student,or N/A if household member
is not a student and question does not apply.
Last Four Digits of Social Security For each tenant 15 years of age or older,enter the last four digits of the social security
Number number or the last four digits of the alien registration number.If the last four digits of
SSN or alien registration is missing,enter 0000.For tenants under age 15,social security
number not required,although please enter 0000.
If there are more than 7 occupants,use an additional sheet of paper to list the remaining household members and attach it to the certification.
4 Tenant Income Certification(April 2021)
Part III-Annual Income
See HUD Handbook 4350.3 for complete instructions on verifying and calculating income,including acceptable forms of verification.
From the third party verification forms obtained from each income source,enter the gross amount anticipated to be received for the twelve months
from the effective date of the(re)certification.Complete a separate line for each income-earning member. List each respective household member
number from Part II.Include anticipated income only if documentation exists verifying pending employment.If any adult states zero-income,please
note"zero'in the columns of Part III.
Column(A) Enter the annual amount of wages,salaries,tips,commissions,bonuses,and other income from employment;
distributed profits and/or net income from a business.
Column(B) Enter the annual amount of Social Security,Supplemental Security Income,pensions,military retirement,etc.
Column(C) Enter the annual amount of income received from public assistance(i.e.,TANF,general assistance,disability,
etc.).
Column(D) Enter the annual amount of alimony,child support,unemployment benefits,or any other income regularly
received by the household.
Row(E) Add the totals from columns(A)through(D),above. Enter this amount.
Part IV-Income from Assets
See HUD Handbook 4350.3 for complete instructions on verifying and calculating income from assets,including acceptable forms of
verification.
From the third parry verification forms obtained from each asset source,list the gross amount anticipated to be received during the twelve months
from the effective date of the certification. If individual household member income is provided,list the respective household member number from
Part II and complete a separate line for each member.
Column(F) List the type of asset(i.e.,checking account,savings account,etc.)
Column(G) Enter C(for current,if the family currently owns or holds the asset),or I(for imputed,if the family has disposed
of the asset for less than fair market value within two years of the effective date of(re)certification).
Column(H) Enter the cash value of the respective asset.
Column(1) Enter the anticipated annual income from the asset(i.e.,savings account balance multiplied by the annual
interest rate).
TOTALS Add the total of Column(H)and Column(1),respectively.
If the total in Column(H)is greater than$5,000,you must do an imputed calculation of asset income. Enter the Total Cash Value,multiply by
0.06%and enter the amount in(J),Imputed Income.
Row(K) Enter the greater of the total in Column(I)or(>)
Row(I) Total Annual Household Income From all Sources Add(E)and(K)and enter the total
HOUSEHOLD CERTIFICATION AND SIGNATURES
After all verifications of income and/or assets have been received and calculated,each household member age 18 or older must sign and date the
Tenant Income Certification. For move-in,it is recommended that the Tenant Income Certification be signed no earlier than 5 days prior to the
effective date of the certification.
Part V—Determination of Income Eligibility
Total Annual Household Income from all Enter the number from item(L).
Sources
Current Federal LIHTC Income Limit per Enter the Current Move-in lncome Limit for the household size—specifically,the max income
Unit Meets Federal Income Restriction at limit for the federal 60%,50%or A.1.T(20%-80%)set aside.
60%,50%or ALT(20%-80%)
Current Bond Income Limit per Family Enter the Current most restrictive Move-in Income Limit for the household size—specifically,the
Size max income limit incorporating both federal and in some instances more restrictive state standards
as reflected in the 50%or 60%set aside detailed in the Bond Regulatory Agreement.
5 Tenant Income Certification(April 2021)
Household Income at Move-in For recertifications only.Enter the household income from the move-in certification.
Household Size at Move-in Enter the number of household members from the move-in certification.
Current Federal LIHTC Income Limit x For recertifications only. Multiply the current LIHTC Maximum Move-in Income Limit by
140% 140%and enter the total. 140%is based on the Federal Set-Aside of 20/50 or 40/60,or
A.I.T. (20%-60%=140%X 60%,70%=140%X 70%and 80%=140%X 80%)as
elected by the owner for the property,not deeper targeting elections of 30%,40%,
45%,50%,etc.Below,indicate whether the household income exceeds that total. If the
Gross Annual Income at recertification is greater than 140%of the LIHTC Income Limit per
Family Size at Move-in date(above),then the available unit rule must be followed.
Unit Meets Federal Income Restriction Check the appropriate box for the income restriction that the household meets according to
at or Federal A.I.T.at what is required by the federal set-aside(s)for the project.
Unit Meets State Deeper Targeting If your agency requires an income restriction lower than the federal limit,enter the percent
Income Restriction at required.
Part VI-Rent
Tenant Paid Monthly Rent Enter the amount the tenant pays toward rent(not including rent assistance payments such as
Section 8).
Federal Rent Assistance Enter the amount of rent assistance received from a federal program,if any.
Non-Federal Rent Assistance Enter the amount of non-federal rent assistance received,if any.
Total Monthly Rent Assistance Enter the amount of total rent assistance received,if any.
Source of Federal Rent Assistance If federal rent assistance is received,indicate the single program source.
Monthly Utility Allowance Enter the utility allowance. If the owner pays all utilities,enter zero.
Other Monthly Non-Optional Charges Enter the amount of non-optional charges,such as mandatory garage rent,storage lockers,
charges for services provided by the development,etc.
Gross Monthly Rent for Unit Enter the total of Tenant Paid Rent plus Utility Allowance and other non-optional charges.
The total may NOT include amounts other than Tenant Paid Rent,Utility Allowances and
other non-optional charges.In accordance with the definition of Gross Rent in IRC
§42(g)(2)(B),it may not include any rent assistance amount.
Maximum LIHTC Rent Limit for this Enter the maximum allowable gross rent for the unit.This amount must be the maximum
unit amount allowed by the Current Income Limit per Family Size— specifically,the max rent
limit for the federal 50%,60%or A.I.T.(20%-80%)set aside.This does not include state
deeper targeting levels.
Maximum LIHTC Bond Rent Limit for Enter the maximum allowable gross rent for the unit.This amount must be the maximum
this unit amount allowed by the Current Income Limit per Family Size—specifically,the max rent
incorporating both federal and in some instances more restrictive state standards as reflected
in the 50%or 60%set aside detailed in the Bond Regulatory Agreement.
Unit Meets Federal Rent Restriction at Indicate the appropriate rent restriction that the unit meets according to what is required by
or Federal A.I.T.at the federal set-aside(s)for the project.
Unit Meets Bond Rent Restriction at Indicate the appropriate rent restriction that the unit meets according to what is required by
the federal and state law for the project.
Unit Meets State Deeper Targeting Rent If your agency requires a rent restriction lower than the federal limit,enter the percent
Restriction at required.
Part VII-Student Status
If all household members are full time*students,check"yes". Full-time status is determined by the school the student attends.If at least one
household member is not a full-time student,check"no."
If"yes"is checked,the appropriate exemption must be listed in the box to the right. If none of the exemptions apply,the household is ineligible to
rent the unit.
6 Tenant Income Certification(April 2021)
Part VIII—Program Type
Select the program(s)for which this household's unit will be counted toward the property's occupancy requirements.One response from the first
column must be selected.
SIGNATURE OF OWNER/REPRESENTATIVE
It is the responsibility of the owner or the owner's representative to sign and date this document immediately following execution by the resident(s).
The responsibility of documenting and determining eligibility(including completing and signing the Tenant Income Certification form)and ensuring
such documentation is kept in the tenant file is extremely important and should be conducted by someone well trained in tax credit compliance.
These instructions should not be considered a complete guide on tax credit compliance. The responsibility for compliance with federal program
regulations lies with the owner of the building(s)for which the credit is allowable.
PART IX.SUPPLEMENTAL INFORMATION
Complete this portion of the form at move-in and at recertification's(only if household composition has changed from the previous
year's certification).
Tenant Demographic Profile Complete for each member of the household,including minors.Use codes listed on
supplemental form for Race,Ethnicity,and Disability Status.
Resident/Applicant Initials All tenants who wish not to furnish supplemental information should initial this section.
Parent/Guardian may complete and initial for minor child(ren).
Tenant Income Certification(April 2021)
EXHIBIT C
Draft Certificate of Continuing Program Compliance
1589250.1
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
In accordance with the
DENSITY BONUS INCENTIVE AND
VOLUNTARY WORKFORCE HOUSING AGREEMENT
ECONOMIC DEVELOPMENT DEPARTMENT
Red Hill Mixed Use Project 113751-13841 Redhill Avenue I Tustin
Owner or Property Manager's Name:
Email: Phone Number:
This document is for the 12-month reporting period beginning on and ending on
I,the undersigned,being the Owner/Manager of the above Project,hereby certify the following:
(Please Initial Each Box Indicating Compliance)
❑ I have kept true and accurate records as required by the Density Bonus Incentive and Voluntary Workforce Housing
Agreement between the City of Tustin and Irvine Asset Group, LLC myself during the reporting period and
these records are open for inspection. (Section 15)
❑ I am maintaining on file Verifications of Income dated prior to their occupancy and thereafter annual verifications
on income. (Section 14)
❑ Within the current reporting period,I have inspected the property, and my property is in good repair and is in
compliance with standards required by the City of Tustin. (Section 10)
1 HAVE ATTACHED THE FOLLOWING DOCUMENTS:
❑ An Occupancy Summary,which lists the unit number and size,name of tenant(s),income category,household
size,monthly rent and the date of the most recent Verification of Income.
❑ A copy of the most recent Verification of Income from one (1) of the six(6)qualified households.
Under penalty of perjury,I certify that the information presented in this certification is true and accurate to
the best of my knowledge.
PRINT/TYPE Name: Date:
Owner or Property Manager's Signature:
1583676.1