HomeMy WebLinkAbout80A - JOINT - SETTLEMENT AGMTREQUEST FOR COUNCIL/
AGENCY ACTION
MEETING DATE:
APRIL 18, 2011
TITLE:
SETTLEMENT AGREEMENT WITH FRIENDS OF
THE LACY HISTORIC NEIGHBORHOOD AND FIRST
AMENDMENT TO THE DISPOSITION AND
DEVELOPMENT AGREEMENT WITH SANTA ANA
STATION DISTRICT, LLC
n
'lit
CITY MANAGER INTEf IM EXECUTIVL
OTRECTOR -
RECOMMENDED ACTION
CITY COUNCIL ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
? As Recommended
? As Amended
? Ordinance on 1 st Reading
? Ordinance on 2nd Reading
? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
FILE NUMBER
Adopt a resolution adopting CEQA Findings of Fact and a Statement of Overriding
Considerations; consenting to the approval of the First Amendment to the Disposition and
Development Agreement between the Community Redevelopment Agency of the City of Santa
Ana and Santa Ana Station District, LLC dated June 7, 2010 for properties owned by the Agency
in the Station District and making certain other findings in connection therewith.
2. Direct the City Attorney to prepare and authorize the City Manager, the acting Chair of the
Council in this matter, and Clerk of the Council to execute a settlement agreement with the
Friends of the Lacy Historic Neighborhood, Deborah McEwen, the City of Santa Ana, the City
Council of Santa Ana, the Redevelopment Agency of the City of Santa Ana, the Board of the
Agency, and Santa Ana Station District, LLC.
COMMUNITY REDEVELOPMENT AGENCY ACTION
Adopt a resolution adopting CEQA Findings of Fact and a Statement of Overriding
Considerations; approving the First Amendment to the Disposition and Development
Agreement between the Community Redevelopment Agency of the City of Santa Ana and
Santa Ana Station District, LLC dated June 7, 2010 for properties owned by the Community
Redevelopment Agency of the City of Santa Ana in the Station District and making certain other
findings in connection therewith.
8OA-1
Settlement Agreement With Friends of
the Lacy Historic Neighborhood and First
Amendment to the DDA with Santa Ana
Station District, LLC
April 18, 2011
Page 2
2. Direct the Agency General Counsel to prepare and authorize the Executive Director, the acting
Chair of the Board in this matter, and Clerk of the Council to execute a settlement agreement
with the Friends of the Lacy Historic Neighborhood, Deborah McEwen, the City of Santa Ana,
the City Council of Santa Ana, the Redevelopment Agency of the City of Santa Ana, the Board
of the Agency, and Santa Ana Station District, LLC.
3. Direct the Agency General Counsel to prepare and authorize the Executive Director and Clerk
of the Council to execute the First Amendment to the Disposition and Development Agreement
between the Community Redevelopment Agency of the City of Santa Ana and Santa Ana
Station District, LLC dated June 7, 2010 revising the Scope of Development.
4. Adopt the Lacy Housing Fund Program and authorize the deposit and expenditure of $200,000.
5. Authorize the release of Request for Proposals for the demolition of 620 E 5th St., 611 N. Minter
St., 609, 615-617 E. 6th St., 623 and 707 N. Garfield and 812 E. Santa Ana Blvd., and the
relocation of the structures on 613 E. 6th St and 610-612 E. 5th St.
DISCUSSION
On June 7, 2010, the City Council and Redevelopment Agency approved the final Environmental
Impact Report (Final EIR) for the Transit Zoning Code (TZC) and approved a Disposition and
Development Agreement (DDA) with Station District, LLC for the development of Agency owned
properties in the Station District Project. On July 8, 2010, Friends of the Lacy Historic
Neighborhood (FOL) filed a Petition for Writ of Mandamus against the City and Agency challenging
the certification of the Final EIR, approval of the Transit Zoning Code, the Station District Project
and the related purchase and demolition of certain structures in the Lacy Neighborhood.
On February 26, 2011, staff, Agency/City legal counsel, and the developer attended mediation with
FOL in an attempt to resolve the complaint without proceeding to court. After extensive
negotiations through mediation and the weeks following, a settlement has been reached that
maintains the goals and economics of the Station District Project. The following are the terms of
the settlement agreement:
• The Station District Project will be revised to include rehabilitation of approximately ten
(10) single-family and multi-family properties to be situated along Fifth Street in the Lacy
Neighborhood.
The Agency will be responsible for relocating the single-family structure at 613 E. 6th St
and a duplex at 610-612 E. 5th St. to 602 E. 6th St and 511 E. 5th St, respectively, with
the developer being responsible for rehabilitating the units as part of its Phase 2.
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Settlement Agreement With Friends of
the Lacy Historic Neighborhood and First
Amendment to the DDA with Santa Ana
Station District, LLC
April 18, 2011
Page 3
• 611 North Minter will be demolished unless a buyer can relocate the structure by May
15, 2011.
• The City will prepare an historic survey for residential structures 50 years old or older in
the Lacy Neighborhood. The cost of this survey is expected to be approximately
$30,000.
The Agency will establish a $200,000 Lacy Neighborhood Housing Fund to encourage
home owners in the Lacy Neighborhood to make exterior home improvements. This
program would replace the $100,000 targeted residential loan program for the Lacy
Neighborhood approved by the Agency on June 7, 2010. This new program would also
provide grants for eligible property owners who want to propose their homes for listing on
the state or local historic register or apply for the Mills Act Property Tax Abatement
Program. The program would be funded up to $200,000 annually for a period of five
years (Exhibit 4).
• Santa Ana Historic Preservation Society (SAHPS) will be given the opportunity to inspect
homes for salvageable items, which the demolition contractor will remove identified items
prior to demolition. SAHPS will be responsible for the removal of the items from the site
and storage.
For eighteen (18) months from the effective date of the Settlement Agreement, prior to
future acquisition and/or demolition of homes in the Lacy Neighborhood, the Agency will
provide special notice to FOL and an opportunity for consultation.
The developer will pay Petitioners' attorneys' fees in an amount not to exceed
$72,000.00.
The terms of the Settlement Agreement, necessitate that the Scope of Development and related
sections of the DDA as applicable, be amended to allow for such changes. The following are the
changes that are incorporated into the First Amendment to the DDA (Exhibit 3):
• Change in Scope of Development to include the rehabilitation of single-family and multi-
family properties. A portion of Phase 2 multi-family rental will be replaced with For Sale
units. In total, this will result in one additional rental unit and eight fewer For Sale units
than the previously approved project.
• New site map
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Settlement Agreement With Friends of
the Lacy Historic Neighborhood and First
Amendment to the DDA with Santa Ana
Station District, LLC
April 18, 2011
Page 4
• Addition of language referencing the settlement agreement
• Extension of the time to complete the lot mergers
California Environmental Quality Act (CEQA)
The Settlement Agreement and the First Amendment to the DDA will not result in any changes to
the Station District Project or the circumstances under which the Station District Project is
undertaken that would require any major revisions in the Final EIR, and there is no new information
with respect to the Project that would require such revisions. Additionally, no other terms of the
Settlement Agreement would require revisions to the Final EIR or further environmental analysis
because the terms do not involve new significant environmental impacts or a substantial increase
in the severity of an impact, and/or have no potential to result in a direct or indirect physical change
in the environment, and/or are otherwise exempt from CEQA.
Additionally, the preparation of an historic survey is exempt from CEQA under CEQA Guidelines §
15306, which exempts "information collection." Because the Historic Survey would simply evaluate
existing resources and would not result in any disturbance of environmental resources, it is exempt
from CEQA review. Establishment of the Lacy Neighborhood Housing Fund is similarly exempt
from CEQA because any improvements that would result from use of the fund would consist of
repair, maintenance or minor alterations of private structures involving negligible or no expansion
of the existing use. Therefore, establishment of the fund is exempt under CEQA Guidelines §
15301 (Existing Facilities). Further, any rehabilitation of homes consistent with the Secretary of
the Interior's Standards for the Treatment of Historic Properties with Guidelines for Preserving,
Rehabilitating, Restoring and Reconstructing Historic Buildings would also be exempt under CEQA
Guidelines § 15331. The salvage program is also exempt under CEQA because it is a component
of the ongoing salvage process with the Santa Ana Historic Preservation Society, which began in
2004, and under the Existing Facilities exemption (CEQA Guidelines § 15301) as it involves only
minor exterior and interior alterations. All other provisions of the Settlement Agreement have no
potential for resulting in a direct or indirect physical change on the environment and, therefore, are
not "projects" as that term is defined in CEQA Guidelines § 15378. Accordingly, they are covered
by "the general rule that CEQA only applies to projects, which have the potential for causing a
significant effect on the environment. Where it can be seen with certainty that there is no
possibility that the activity in question may have a significant effect on the environment, the activity
is not subject to CEQA." (See CEQA Guidelines § 15061(b)(3).)
8OA-4
Settlement Agreement With Friends of
the Lacy Historic Neighborhood and First
Amendment to the DDA with Santa Ana
Station District, LLC
April 18, 2011
Page 5
FISCAL IMPACT
Funds for the Lacy Neighborhood Housing Fund will be available in the Tax Increment account.
(no. 50718830-69151).
APPROVED AS TO FUNDS AND ACCOUNTS:
S elly La dry-Bayle
Housing anager
Community Development Agency
Exhibits: 1. Resolution, City
2. Resolution, Agency
3. DDA
4. Fund Program
Francisco Gutierrez
Executive Director rU
Finance and Management Services Agency
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RESOLUTION NO. 2011-
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SANTA ANA ADOPTING CEQA FINDINGS
OF FACT AND A STATEMENT OF OVERRIDING
CONSIDERATIONS AND CONSENTING TO THE
APPROVAL OF THE FIRST AMENDMENT TO THE
DISPOSITION AND DEVELOPMENT AGREEMENT
BETWEEN THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF SANTA ANA AND
SANTA ANA STATION DISTRICT, LLC AND
MAKING CERTAIN OTHER FINDINGS IN
CONNECTION THEREWITH
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA, AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines and
declares as follows:
A. The Community Redevelopment Agency for the City of Santa Ana
("Agency") entered into that certain Disposition and Development Agreement with Santa
Ana Station District, LLC ("Developer"), dated as of June 7, 2010 ("DDA"), a copy of
which is on file with the Agency, under which the Developer was to develop certain
property identified therein as the "Site" located in the City of Santa Ana ("City").
B. Pursuant to the California Environmental Quality Act (Public Resources
Code § 21000, et seq.) ("CEQA") the City Council of the City of Santa Ana ("Council")
certified Environmental Impact Report ("Final EIR") No. 2006-02 for Transit Zoning Code
(SD 84A and SD 84B) and the development of that certain property identified in the DDA
as the Site (the "Station District Project"), a copy of which is on file with the City (SCH No.
2006071100), on June 7, 2010.
C. The Council and the Agency, respectively, adopted CEQA Findings of
Fact, a Statement of Overriding Considerations, and a Mitigation Monitoring and
Reporting Program ("MMRP") in connection with approval of the DDA on June 7, 2010.
D. The DDA provided that the Site would be conveyed to the Developer and
Developer would develop the Site in phases, including the construction of affordable
housing units, as more particularly set out in the Scope of Development attached and
incorporated into the DDA.
E. On July 8, 2010, the unincorporated association "Friends of the Lacy
Historic Neighborhood" filed a Petition for Writ of Mandamus against the City and Agency
challenging the certification of the EIR and approval of the TZC, the Station District
Project and the related purchase and demolition of certain structures in the Lacy
Neighborhood in Orange County Superior Court Case No. 30-2010-00388033-CU-WM-
CXC (the "Litigation").
Exhibit 1
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F. The Parties have mutually agreed that settlement is the most efficient and
practical way to resolve the Litigation and have proposed a settlement agreement to
resolve and settle all claims related to the Litigation ("Settlement Agreement").
G. The parties now deem it in their best interests to amend and restate the
Scope of Development as set forth in the proposed First Amendment to Disposition and
Development Agreement in the form submitted herewith ("First Amendment").
H. All actions required by all applicable law with respect to the proposed First
Amendment have been taken in an appropriate and timely manner
1. The DDA as amended by the First Amendment would assist in the
alleviation or removal of blighting conditions and provide housing for low- or moderate-
income persons.
J. The Agency has adopted an Implementation Plan pursuant to CRL Section
33490, which sets forth the objective of providing housing to satisfy the needs and
desires of various constituent elements of the community.
K. The DDA as amended by the First Amendment furthers the goals of the
Agency set forth in the Implementation Plan as it will facilitate the creation of affordable
housing which will serve the residents of the neighborhood and the City.
L. The DDA as amended by the First Amendment would assist in the
alleviation or removal of blighting conditions and provide housing for low- or moderate-
income persons and would further the goals of the Implementation Plan by providing for
the development of such housing.
M. The City Council has duly considered all terms and conditions of the
proposed First Amendment and believes that the DDA as amended by the First
Amendment is in the best interests of the Agency and the City and the health, safety, and
welfare of its residents, and in accord with the public purposes and provisions of
applicable State and local law requirements.
Section 2. The foregoing recitals are true and correct and are hereby incorporated by
this reference.
Section 3. The City Council hereby finds and determines that there have been no
substantial changes proposed in the Station District Project as a result of the new Scope of
Development or the circumstances under which the Station District Project is undertaken, and
there is no new information with respect to the Project, which would require any major revisions
in the Final EIR pursuant to California Environmental Quality Act ("CEQA").
Section 4. The City Council hereby adopts the Findings of Fact and Statement of
Overriding Considerations for the Station District Project as defined in the new Scope of
Development, attached as Exhibit "A".
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Section 5. The City Council hereby finds and determines that the MMRP adopted by
the Agency on June 7, 2010 remains in effect.
Section 6. The City Council hereby finds and determines that the terms of the
Settlement Agreement do not require revisions to the Final EIR or further environmental analysis
either because the terms do not involve new significant environmental impacts or a substantial
increase in the severity of an impact, and/or have no potential to result in a direct or indirect
physical change in the environment, and/or are otherwise exempt from CEQA.
Section 7. The City Council hereby finds and determines that, based upon substantial
evidence provided in the record before it, the consideration for the Agency's conveyances real
property to the Developer pursuant to the terms and conditions of the DDA as amended by the
First Amendment is not less than the fair reuse value at the use and with the covenants and
conditions and development costs authorized by the DDA.
Section 8. The City Council hereby finds and determines that, based upon substantial
evidence provided in the record before it, the First Amendment is consistent with the provisions
and goals of the Implementation Plan.
Section 9. The City Council hereby consents to the approval by the Agency of the
First Amendment in substantially the form presented to the Agency, subject to such revisions as
may be made by the Executive Director of the Agency or his or her designee. A copy of the
First Amendment when executed by the Agency shall be placed on file in the office of the City
Clerk.
Section 10. The Executive Director and the Agency Secretary are hereby authorized to
execute and attest the First Amendment, including any related attachments, on behalf of the
Agency. Copies of the final form of the First Amendment, when duly executed and attested,
shall be placed on file in the office of the City Clerk.
Section 11. The Executive Director (or his/her duly authorized representative) is further
authorized to implement the First Amendment and take all further actions and execute all
documents referenced therein and/or necessary and appropriate to carry out the First
Amendment. The Executive Director (or his/her duly authorized representative) is hereby
authorized to the extent necessary during the implementation of the First Amendment to make
technical or minor changes thereto after execution, as necessary to properly implement and
carry out the First Amendment, provided the changes shall not in any manner materially affect
the rights and obligations of the Agency.
Section 12. The City Clerk shall certify to the adoption of this Resolution.
8OA-8
ADOPTED this
Carlos Bustamante
Acting Chair
APPROVED AS TO FORM:
day of , 2011.
By:
Joseph Straka
Interim General Counsel
AYES:
Boardmembers:
NOES:
Boardmembers:
ABSTAIN: Boardmembers:
NOT PRESENT: Boardmembers:
CERTIFICATION OF ATTESTATION AND ORIGINALITY
I, Maria D. Huizar, Secretary of the Agency, do hereby attest to and certify the attached
Resolution No. 2011- to be the original resolution adopted by the Community
Redevelopment Agency of the City of Santa Ana on , 2011.
Date:
Clerk of the City Council
8OA-9
REVISED STATION
DISTRICT PROJECT AND
"FRIENDS OF LACY"
SETTLEMENT
AGREEMENT
Findings of Fact/
Statement of Overriding Considerations
The City of Santa Ana
20 Civic Center Plaza M20
PO Box 1988
Santa Ana, California 92702
Exhibit IA
April 18, 2011
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8OA-11
Contents
CHAPTER 1 Introduction ............................................................................................................1-1
CHAPTER2 CEQA Findings .................................................................................................... ..2-1
2.1 Introduction ................................................................................................................... .. 2-1
CHAPTER 3 Findings Regarding Project Alternatives ............................................................. .. 3-1
3.1 Introduction ................................................................................................................... .. 3-1
3.2 Project Objectives ......................................................................................................... ..3-1
3.3 Selection of Alternatives .............................................................................................. .. 3-2
3.4 Project Alternative Findings .....................................
3.4.1 Findings on Alternatives to the Proposed Transit Zoning Code
Analyzed in the Draft EIR ........................................................................... .. 3-2
3.4.2 Findings on Alternatives to the Proposed Transit Zoning Code
Analyzed in the Draft EIR ........................................................................... .. 3-9
3.4.3 Findings on Alternatives that were Considered but Eliminated
from Detailed Analysis in the Draft EIR ................................................... 3-14
3.4.4 Additional Findings ....................................................................................... 3-16
CHAPTER 4 Findings on the Settlement Agreement and the Revised Station District
Project ..................................................................................................................... 4-1
4.1 Introduction ..................................................................................................................... 4-1
4.2 Previously Approved Station District Project ............................................................ 4-1
4.3 Revised Station District Project ....................................................................................4-1
4.4 Other Settlement Agreement terms ............................................................................. 4-2
4.5 Finding On Revised Station District Project ..............................................................4-3
4.6 Findings On Other Settlement Agreement Terms .................................................... 4-3
4.7 Other Related Findings .................................................................................................. 4-4
CHAPTER 5 Statement of Overriding Considerations ...............................................................5-5
5.1 Introduction ..................................................................................................................... 5-5
5.2 Unavoidable Significant Adverse Impacts ................................................................... 5-5
5.3 Overriding Considerations ............................................................................................ 5-8
Table
Table 1-1 Summary of Transit Zoning Code Potential Net Change .................................................................1-3
Table 2-1 CEQA Findings ............................................................................................................................................. 2-3
Table 3-1 Alternative 2 and Proposed Transit Zoning Code (SD 84A and SD 84B)
Characteristics ................................................................................................................................................. 3-4
Table 3-2 Alternative 3 and Proposed Transit Zoning Code (SD 84A and SD 84B)
Characteristics ................................................................................................................................................. 3-7
Table 4-1 Properties to Be Rehabilitated/Demolished Under the Revised Station District
Project ............................................................................................................................................................... 4-2
Transit Zoning Code (SD 84A and SD 8413) EIR F QnM of F_a?/Statement of Overriding Considerations iii
8OA-13
CHAPTER 1 Introduction
On June 7, 2010, the City of Santa Ana ("City") certified an Environmental Impact Report (EIR) for the
Transit Zoning Code (SD 84) and the development of certain properties owned by the Community
Redevelopment Agency of the City of Santa Ana ("Agency") in the Station District (the "Station District
Project"), in compliance with the requirements of the California Environmental Quality Act (CEQA)
(Public Resources Code section 21000 et seg.). The Agency has discretionary approval power over the
Station District Project and is, therefore, a Responsible Agency under CEQA. As such, prior to reaching
a decision on Transit Zoning Code ("TZC") and Station District project, both the City and the Agency
considered the environmental effects of the project as shown in the EIR and adopted specific findings.
On July 8, 2010, the unincorporated association "Friends of the Lacy Historic Neighborhood" filed a
Petition for Writ of Mandamus against the City and Agency challenging the certification of the EIR and
approval of the TZC, the Station District Project and the related purchase and demolition of certain
structures in the Lacy Neighborhood in Orange County Superior Court Case No. 30-2010-00388033-
CU-WN,I-CYC (the "Litigation"). On April 18, 2011, the parties to the litigation entered into a
Settlement Agreement to resolve and settle all claims related to the Litigation. The Settlement
Agreement relates to and affects the development of the Station District Project, also referred to herein
as the "Developer Project."
As further discussed in Chapter 4, the Settlement Agreement does not result in any substantial changes to
the Station District Project or the circumstances under which the Station District Project is undertaken
that would require any major revisions in the Final E1R, and there is no new information with respect to
the Project that would require such revisions. Additionally, no other terms of the Settlement Agreement
would require revisions to the Final EIR or further environmental analysis because the terms do not
involve new significant environmental impacts or a substantial increase in the severity of an impact,
and/or have no potential to result in a direct or indirect physical change in the environment, and/or are
otherwise exempt from CEQA.
Therefore, this document presents the Findings of Fact and Statement of Overriding Considerations that
were adopted by the City and the Agency pursuant to the requirements of Public Resources Code
Sections 21002.1(b) and (d), 21081 and 21081.5 and Sections 15091, 15093, and 15096, respectively, of
the State Guidelines for the Implementation of CEQA (CEQA Guidelines) on June 7, 2010. All of these
Findings remain in effect as they apply to the Transit Zoning Code and apply equally to the modified
Station District Project as they did before adoption of the modifications.
This document provides specific additional Findings related to the modified Station District Project and
the Settlement Agreement in Chapter 4.
This document is organized as follows:
Chapter 1 Introduction to the Findings of Fact and Statement of Overriding Considerations.
Chapter 2 Presents the CEQA Findings of the Environmental Impact Report (EIR),
including the identified significant impacts.
Transit Zoning Code (SD 84A and SD 84B) EIR E' &aq /Statement of Overriding Considerations 1-1 44
Chapter 1 Introduction
Chapter 3 Presents the alternatives to the project as originally proposed and evaluates them in
relation to the findings contained in Section 15091(a)(3) of the CEQA Guidelines.
The Agency must consider and make findings regarding alternatives when a project
would involve environmental impacts that cannot be reduced to a less-than-
significant level, or cannot be substantially reduced, by proposed mitigation
measures.
Chapter 4 Presents Findings related to the modified Station District Project and the
Settlement Agreement.
Chapter 5 Presents a Statement of Overriding Considerations that is required in accordance
with Section 15093 of the CEQA Guidelines for significant impacts of the Project
that cannot be mitigated to a less-than-significant level.
The Transit Zoning Code project area is located in the central urban core of the City of Santa Ana and
comprises over 100 blocks and 450 acres. The project is located in the area west of Interstate 5, north of
First Street, and between Grand Avenue and Flower Street and south of Civic Center Drive in the City
of Santa Ana in Orange County, California.
The Transit Zoning Code provides new zoning for all of the properties contained within its boundary
with the exception of those properties zoned M1-Light Industrial or M2-Heavy Industrial. These M1
and M2 properties would retain their existing zoning, but would be covered by an overlay zone that
allows for the option of future mixed-use development to be exercised at the discretion of the property
owner. The Transit Zoning Code provides for the integration of new infill development into existing
neighborhoods, allows for the reuse of existing buildings, supports mixed-use development, provides a
transit-supportive, pedestrian-oriented development framework to reduce vehicle trips, reduce
greenhouse gas emissions, and support the addition of new transit infrastructure, and provides an
economic development stimulus.
Within the boundary of the Transit Zoning Code, the Redevelopment Agency= (Agency) owns forty-nine
parcels comprising approximately seven noncontiguous acres. The Agency/City is pursuing the potential
acquisition of twenty additional properties within the immediate vicinity of the forty-nine parcels
mentioned above for the purposes of completing the assemblage of properties on those blocks in which
the Agency already has majority ownership, as well as to secure property to provide for additional open
space. The acquisition of these additional properties may lead to demolition and/or relocation of existing
structures, as well as the potential relocation of any existing residents.
The Agency and the Developer propose to redevelop these properties. The Developer concept for these
properties includes the development of a maximum of 155 rental units and a maximum of 65 for-sale
unitsa total of 220 new residential units. A component of this residential development will be
affordable pursuant to the County of Orange's criteria for low-to-moderate income housing. The
City /Agency is also pursuing the addition of new public open space that could include a public park, a
public tot lot, and a 10,000 square foot community building. The redevelopment of these properties
requires the demolition of approximately 30,243 square feet of building area, on fifteen Agency-owned
properties.
The City will amend the current General Plan to permit these new land uses and amend the Zoning Code
to establish development standards that implement the project. These amendments will allow the City to
1_2 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-15 Considerations
Chapter 1 Introduction
provide a framework for the development of compact, transit-oriented development that contains a mix
of residential, commercial, and professional uses in order to address the City's and the region's goals of
providing sites for housing in already urbanized locations that are adjacent to transit, thereby reducing
vehicle trips, stimulating investment in underutilized land, and improving the jobs/housing balance
within the City. This will lead to potential development of approximately 4,075 residential units,
387,000 sf of retail development, and an additional 15.5 acres of open space within the City. Adoption of
this project would allow the City to consider subsequent actions consistent with these updates in the
General Plan and Land Use designations. Table 3-1 (Summary of Transit Zoning Code [SD84A and
SD8413] Development Potential) lists the overall potential net change that would occur as a result of the
project area.
In terms of net development, the Transit Zoning Code would allow for the potential development of
approximately 351,000 square feet (sf) of retail development and the addition of new open space within
the City. Creation of this Transit Zoning Code area would allow the City to consider subsequent actions
consistent with these updates. Table 1-1 (Summary of Transit Zoning Code Potential Net Change) lists
the overall potential net change that could occur as a result of any new construction built pursuant to the
standards contained within the Transit Zoning Code.
Table-1-71
Land Use Type Summary of Tran
Potenfial Gross Development sit Zoning Code Potential Net Change
Existing Uses to be Converted Potential Net Development
Residential (units) 4,272 197 4,075
Retail (sf) 693,00 306,00 387,000
Industrial (sf) 90,000 1,080,000 (990,000)
Commercial (sf) 0 124,000 (124,000)
Civic (sf) 8,000 29,000 (21,000)
Open Space (sf) 680,000 0 680,000
Surface Parking Lot (sf) 67,000 1,839,00 (1,772,000)
The key procedural actions related to the Transit Zoning Code and CEQA include:
¦ Circulate Initial Study/Notice of Preparation (30 days) July 20, 2006-August 22, 2006
¦ Filed NOC and Circulated Draft EIR February 2, 2010
¦ Conducted Scoping Meeting at February 22, 2010 Planning Commission Meeting
¦ Re-Circulated Alternatives Section /extended DEIR review period, February 24, 2010- April 12,
2010
¦ Conducted Scoping Meeting at March 22, 2010 Planning Commission Meeting
Revised Station District Project and FOL Settlement Agreement Findings of FacVStatement of Overriding 1-3
Considerations
80A-16
8OA-17
CHAPTER 2 CEQA Findings
2.1 INTRODUCTION
This chapter presents the potential impacts that were identified in the EIR and the findings that are
required in accordance with Section 15091 of the CEQA Guidelines. The possible findings for each
significant and/or potentially significant adverse impact are as follows:
(1) Changes or alterations have been required in, or incorporated into, the project which avoid or
substantially lessen the significant environmental effect as identified in the EIR ("Finding 1").
(2) Such changes or alterations are within the responsibility and jurisdiction of another public agency
and not the agency making the finding. Such changes have been adopted by such other agency or
can and should be adopted by such other agency ("Finding 2").
(3) Specific economic, social, or other considerations, including provision of employment
opportunities for highly trained workers, make infeasible the mitigation measures or project
alternatives in the EIR ("Finding 3").
CEQA requires that the Lead Agency adopt mitigation measures or alternatives, where feasible, to avoid
or substantially reduce significant environmental impacts that would otherwise occur as a result of a
project. Project modification or alternatives are not required, however, where they are infeasible or where
the responsibility for modifying the project lies with some other agency (State CEQA Guidelines
§15091(a)[2],[3]). Public Resources Code Section 21061.1 defines "feasible" to mean "capable of being
accomplished in a successful manner within a reasonable period of time, taking into account economic,
environmental, social, and technological factors." State CEQA Guidelines Section 15364 adds another
factor: "legal" considerations. (See also Cititiens of Goleta Valley P. Board of Sipen)isors [Goleta II] [1990] 52
Cal.3d 553, 565 [276 Cal. Rptr. 410].)
Only after fully complying with the findings requirement can an agency adopt a Statement of Overriding
Considerations (Cititiens forQuality Growth P. City of Mount Shasta [1988] 198 Cal.App.3d 433, 442, 445 [243
Cal. Rptr. 727]). CEQA requires the Lead Agency to state in writing the specific rationale to support its
actions based on the Final EIR and/or information in the record. This written statement is known as the
Statement of Overriding Considerations. The Statement of Overriding Considerations provides the
information that demonstrates the decision making body of the Lead Agency has weighed the benefits of
the project against its unavoidable adverse effects in determining whether to approve the project. If the
benefits of the project outweigh the unavoidable adverse environmental effects, the adverse effects may
be considered "acceptable."
The California Supreme Court has stated that, "the wisdom of approving any development project, a
delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local
officials and their constituents who are responsible for such decisions. The law as we interpret and apply
it simply requires that those decisions be informed, and therefore balanced" (Goleta II, 52 Cal.3d 553, 576
[276 Cal. Rptr. 401]).
Transit Zoning Code (SD 84A and SD 84B) EIR FjP6gs =f FatStatement of Overriding Considerations 2_1
Chapter 2 CEQA Findings
Table 2-1 (CEQA Findings) summarizes the potentially significant impacts of the EIR that were reduced
to less-than-significant levels with mitigation as well as the significant and unavoidable impacts of the
Project.
Additional facts that support the findings are set forth in the Final EIR, the staff reports to the Planning
Commission and City Council, and the record of proceedings. Key discussions that support the Findings
from the Final EIR are provided in "Evidence Supporting Finding." However, other evidence may be
contained in the overall record of the project to further support the finding.
The documents and other materials that constitute the record of proceedings on which the Project
findings are based are located at the City of Santa Ana Planning and Building Agency, 20 Civic Center
Plaza, M-20, Santa Ana, California 92702. The custodian for these documents is Lucy Linnaus. This
information is provided in compliance with Public Resources Code §21081.6(a)(2) and CEQA Guidelines
§15091(e).
2-2 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
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CHAPTER 3 Findings Regarding Project
Alternatives
3.1 INTRODUCTION
The EIR prepared for Transit Zoning Code considered six (6) alternatives to the Proposed Project.
Pursuant to Section 15126.6(a) of the CEQA Guidelines, the primary intent of an alternatives evaluation
is to "describe a range of reasonable alternatives to the project, or to the location of the project, which
would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen
any of the significant effects of the project, and evaluate the comparative merits of the alternatives."
This chapter describes the project objectives and design criteria used to develop and evaluate project
alternatives presented in the Draft EIR. A description of the alternatives compared to the Proposed
Project and the findings regarding the feasibility of adopting the described alternatives are presented
below.
3.2 PROJECT OBJECTIVES
The project objectives of the Transit Zoning Code are to:
¦ Provide zoning for the integration of new infill development into existing neighborhoods
¦ Provide for a range of housing options, including affordable housing
¦ Allow for the reuse of existing structures
¦ Allow the development of the Agency properties
¦ Provide a transit-supportive, pedestrian-oriented development framework to support the addition
of new transit infrastructure
¦ Preserve and reinforce the existing character and pedestrian nature of the City by strengthening
urban form through improved development and design standards
¦ Encourage alternative modes of transportation, including the rail system that connects San Diego
to Los Angeles
The project objectives of the Developer Project for the Agency-owned properties are to:
¦ Redevelop all of the Agency-owned properties
¦ Provide new affordable housing for families in furtherance of the City's affordable housing goals
established in the Housing Element, the Implementation Plan for the Santa Ana Merged
Redevelopment Project Area, and the City of Santa Ana Consolidated Plan
¦ Enhance the streetscape and urban form of the area, particularly along Santa Ana Boulevard, with
the construction of new buildings that meet the standards contained in the Transit Zoning Code
and that support future transit planning
¦ Eliminate blight
Transit Zoning Code (SD 84A and SD 8413) EIR Findiinngs-of Ffftatement of Overriding Considerations 3-1
Chapter 3 Findings Regarding Project Alternatives
¦ Provide additional public open space and facilitate joint use arrangement with SAUSD for a new
community center
¦ Provide an economically viable redevelopment scenario for the Agency-owned properties
3.3 SELECTION OF ALTERNATIVES
The Draft EIR and Recirculated Draft EIR evaluated six (6) alternatives, including the No Project/No
Development alternative, in Chapter 5.0. This evaluation compared the environmental advantages and
disadvantages of each alternative to the Proposed Project. Alternative 1, 2, and 3 are primarily designed
to address alternatives to the Transit Zoning Code as a whole. Alternatives 4, 5, and 6 present
alternatives to the proposed Developer Project, and under each of these Alternatives, the proposed
Transit Zoning Code would remain the unchanged.
The range of feasible alternatives was selected and discussed in a manner to foster meaningful public
participation and informed decision-making. Among the factors that were taken into account when
considering the feasibility of alternatives (as described in CEQA Guidelines Section 15126.6[fJ[1]) were
environmental impacts, economic viability, availability of infrastructure, regulatory limitations,
jurisdictional boundaries, and attainment of project objectives. As stated in Section 15126.6(a) of the
CEQA Guidelines, an EIR need not consider an alternative whose effects could not be reasonably
identified, whose implementation is remote or speculative, or one that would not achieve the basic
project objectives. The analysis includes sufficient information about each alternative to provide
meaningful evaluation, analysis, and comparison with the Proposed Project.
It should be noted that the Alternatives section of the DEIR was re-circulated due to the addition of
three new alternatives (Alternatives 4, 5 and 6) which would lessen the impacts related to historic
structures located within the proposed Developer Project area. The re-circulation of the Alternatives
section concurrently extended the public comment period on the DEIR.
3.4 PROJECT ALTERNATIVE FINDINGS
3.4.1 Findings on Alternatives to the Proposed Transit Zoning Code
Analyzed in the Draft EIR
Alternative 1, 2, and 3 are primarily designed to address alternatives to the Transit Zoning Code as a
whole. The Lead Agency's findings on each alternative and the rationale behind each finding are set forth
below.
¦ Alternative 1: No Project/No Development Alternative
This alternative assumes a continuation of the City's existing General Plan and zoning designations to
guide future growth and development within the Transit Zoning Code project area. The impacts of this
alternative were analyzed under a maximum buildout scenario within the Transit Zoning Code area with
the current allowed land uses and development standards designated in the existing General Plan and
zoning designations. In addition, this alternative assumes that the proposed Developer Project would not
go forward on the Agency-owned properties. Maintaining the existing General Plan and zoning
3-2 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
Considerations
8OA-73
Chapter 3 Findings Regarding Project Alternatives
designations throughout the Transit Zoning Code area would result in impacts that are similar, for the
most part, to those of the proposed Transit Zoning Code, although many of the significant impacts
associated with aesthetics, air quality, climate change, and noise/vibration would be reduced as compared
to the Proposed Project. A number of impacts would be greater under the No Project/No Development
Alternative than under the proposed project due to the absence of mitigation measures that would be
adopted as part of the proposed project, e.g., impacts from increased light and glare. Additionally,
because the City's existing General Plan and zoning designations do not emphasize alternative modes of
transportation and do not contain the development framework necessary to support the transit-oriented
development, impacts to traffic/transportation would be greater under the No Project/No Development
Alternative than under the proposed Transit Zoning Code.
Findings
The City hereby fords that specific economic, legal, social, technological, or other considerations make
the adoption of the No Project/No Development Alternative infeasible.
Although Alternative 1 would moderately reduce some of the proposed project's significant impacts, it
would not achieve most of the basic project objectives. Specifically, Alternative 1 would not provide
zoning for the integration of new infill development into existing neighborhoods. It would not provide
for a range of housing options, including affordable housing. It would not provide for the reuse of
existing structures, allow the development of the Agency-owned properties, or strengthening urban form
through improved development and design standards. Moreover, unlike the proposed project, it would
not provide a transit-supportive, pedestrian-oriented development framework to support transit-oriented
development, or encourage alternative modes of transportation.
As a result of its inability to meet the basic project objectives, the No Project/No Development
Alternative would eliminate the opportunity to provide the numerous benefits of the proposed project,
as set forth in the Statement of Overriding Considerations, including land use development that provides
a better market for public transit, consistent with the goals of SB 375, California's Sustainable
Communities and Climate Protection Act; providing strategic areas for infill, pedestrian friendly
environments, and focusing housing and employment growth in transit-accessible locations through
transit-oriented developments, consistent with the Southern California Association of Governments
(SCAG) 2008 Regional Transportation Plan: Making the Connections (RTP), and SCAG's 2008 Regional
Comprehensive Plan: Heping Communities Achieve a Sustainable Future (RCP) land use goals; and providing
opportunities to meet the City of Santa Ana's share of the Regional Housing Needs Allocation (RHNA)
for 2006-2014.
Additionally, Alternative 1 would not further the established Goals and Policies of the City's General
Plan to the same extent as the proposed Transit Zoning Code. In particular, it would not further
Housing Element Policies HE-2.1, 2.2, 2.3, 2.4, which support the goal of providing a diversity of quality
housing, affordability levels, and living experiences that accommodate Santa Ana's residents and
workforce of all household types, income levels, and age groups to foster an inclusive community to the
same extent as the proposed Transit Zoning Code. Nor would it further Land Use Element policies LE-
1.2, 1.3, 1.5, 1.6, 1.7, and 1.9, which promote a balance of land uses to address basic community needs,
LE-2.4, 2.6, 2.8, 2.9, and 2.10, which promote land uses which enhance the City's economic and fiscal
Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 3-3
Considerations
8OA-74
Chapter 3 Findings Regarding Project Alternatives
viability, LE-4.3, 4.4, and 4.5, which support the goal of protecting and enhancing developments sites
and districts which are unique community assets that enhance the quality of life, or LE-5.1, 5.2, 5.5, 5.7,
5.9, 5.10, and 5.11, which ensure that the impacts of development are mitigated to the same extent as the
proposed Transit Zoning Code. (See Land Use Element; Draft EIR Table 4.7-3.) Similarly, it would not
further the goals of the Urban Design Element (Goals 1-7) to the same extent as the proposed Transit
Zoning Code. (See Urban Design Element; Draft EIR Table 4.7-3.) Moreover, the integrated and
cohesive development standards that are proposed for the Transit Zoning Code area would not be
implemented.
Lastly, Alternative 1 would increase impacts on transportation as a result of lack of emphasis on
alternative modes of transportation in the current General Plan and zoning designations and the lack of a
development framework to support transit-oriented development. For these reasons, the City rejects
Alternative 1 as infeasible.
¦ Alternative 2: Overall Reduced Density
The Overall Reduced Density Alternative would reduce the intensity of all anticipated land uses within
the Transit Zoning Code (SD 84A and SD 84B) area by 25 percent. In general, this alternative would
reduce the number of residences, including affordable housing, and reduce employment opportunities as
a result of less commercial uses in the area. Specifically, this alternative would result in approximately
1,019 fewer residential units, and 96,750 fewer square feet of retail within the Transit Zoning Code
(SD 84A and SD 84B) area. Specific development characteristics that would be allowed under this
alternative relative to the proposed Transit Zoning Code (SD 84A and SD 84B) are specified in Table 3-1
(Alternative 2 and Proposed Transit Zoning Code [SD 84A and SD 84B] Characteristics).
Table 3-1 Alternative 2 an d Proposed Transit Zoning Code (SD 84A a
Characteristics nd SD 84B)
Land Use Type AttemaNve 2 Trans# Zoning Code (SD 84A and SD 84B) Dilierence
Residential (units) 3,056 4,075 (1,019)
Retail (sf 290,250 387,000 (96,750)
Industrial (sf (990,000) (990,000) 0
Commercial (st (124,000) (124,000) 0
Civic (st (21,000) (21,000) 0
Green (st 680,000 680,000 0
Parking (1,772,000) (1,772,000) 0
ov?rt?, ?. rDJ6cJ tv iv
Findings
The City hereby finds that specific economic, legal, social, technological, or other considerations make
the adoption of this alternative infeasible.
3-4 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-75 Considerations
Chapter 3 Findings Regarding Project Alternatives
Although Alternative 2 would somewhat reduce the significant impacts of the proposed Transit Zoning
Code (SD 84A and SD 84B) on aesthetics, climate change, and transportation, it would not reduce any of
those impacts to below the level of significance. In addition, Alternative 2 would not meet the housing
and transit objectives of the Project to the same extent as the proposed project.
Alternative 2 would reduce housing by 25 percent, from 4,075 to 3,056 residential units. The potential
number of affordable housing units would also be reduced by 25 percent. Providing 3,056 new units
would not meet Santa Ana's Regional Housing Needs Assessment for 2006-2014, which calls for 3,393
total units, 1,248 of which must be affordable for low, very low, and extremely low income households.
The City of Santa Ana has a great need for affordable housing; sixty percent of the households in Santa
Ana have low, very low, and extremely low income. (City of Santa Ana General Plan Draft Housing
Element 2006-2014, Appendix A, p. A-10.) Goal 2 of the Housing Element is to "provide a diversity of
quality housing, affordability levels, and living experiences that accommodate Santa Ana's residents and
workforce of all household types, income levels, and age groups to foster an inclusive community."
Alternative 2 would not meet this goal, or the following Housing Element policies, to the same extent as
the proposed project:
HE-2.3 Rental Housing. Encourage the construction of rental housing for Santa Ana's
residents and workforce, including a commitment to very low, low, and moderate
income residents and moderate income Santa Ana workers.
HE-2.4 Diversity of Housing Types. Facilitate and encourage a diversity and range in types,
prices, and sizes of housing, including single family homes, apartments, town
homes, mixed/multiuse housing, transit-oriented developments, and live/work
housing.
Alternative 2 would not meet the project's transit oriented objectives to the same extent as the proposed
project. Reducing the amount of housing and retail space would result in a failure to fully emphasize the
use of the Santa Ana Regional Transportation Center (SARTC) for City residents. A mixed-use urban
and transit-oriented neighborhood requires a critical mass and balance between residential and non-
residential uses in order to succeed. (Draft EIR, Section 5.5.) Alternative 2 would not provide that critical
mass and balance.
In addition, it would not implement established SCAG RTP or RCP policies, or General Plan Land Use
Element policies 1.2, 1.3, 1.5, 1.6, 1.7, 1.9, 2.4, 2.6, 2.8, 2.9, 2.10, 4.3, 4.4, 4.5, 5.1, 5.2, 5.5, 5.7, 5.9, 5.10,
and 5.11, or Urban Land Use Element Goals 1 through 7 to the same extent as the proposed project.
(See Land Use Element; Urban Design Element; Draft EIR Table 4.7-3.) Specifically, the Alternative 2
would not meet the following SCAG RTP Land Use Goals to the same extent as the proposed project:
¦ Create mixed-use districts or "complete communities" in strategic growth areas through a
concentration of activities with housing, employment, and a mix of retail and services, located in
close proximity to each other. Focusing a mix of land uses in strategic growth areas creates
complete communities wherein most daily needs can be met `within a short distance of home,
providing residents with the opportunity to patronize their local area and run daily errands by
walking or cycling rather traveling by automobile.
¦ Intensify nodes along corridors with people-scaled, mixed-use developments. Many existing
corridors lack the residential and commercial concentration to adequately support non-auto transit
Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 3-5
Considerations
8OA-76
Chapter 3 Findings Regarding Project Alternatives
uses, without which the existing transit system cannot fully realize its potential for accommodating
additional trips and relieving the transportation system. These nodes along the corridor also create
vibrant, walkable communities with localized access to amenities, further reducing reliance on the
automobile for a variety of trips.
¦ Pedestrian-friendly environments and more compact development patterns in close proximity to
transit serve to support and improve transit use and ridership. Focusing housing and employment
growth in transit-accessible locations through this transit-oriented development approach will
serve to reduce auto use and support more multimodal travel behavior.
Further, the large reduction in retail space would significantly reduce potential new employment
opportunities and the economic benefits that accompany such opportunities, as compared to the
proposed Transit Zoning Code. It would also reduce the amount of potential tax revenue that the City
could use to reinvest and stimulate economic development.
On balance, reducing the development intensity by 25 percent under Alternative 2 would not provide any
significant environmental benefits that outweigh the extent to which it would inhibit the City's ability to
meet regional housing needs and its goal of establishing a transit-supportive, pedestrian-oriented
development framework to support the new transit-infrastructure.
For these reasons, the City rejects Alternative 2 as infeasible.
¦ Alternative 3: Low-Rise Project
This alternative is a low- to mid-rise version of the Transit Zoning Code (SD 84A and SD 84B), which
would limit building heights in the Downtown and Transit Village Districts to four stories. Under
Alternative 3, the Downtown and Transit Village Districts would be redeveloped according to the
standards of the First Street Corridor District. The remaining districts of the Transit Zoning Code
(SD 84A and SD 84B) area would be developed consistent with the proposed project. This would result
in 2,049 fewer residential units and 36,000 fewer sf of retail uses. Because this alternative would allow
building heights that are similar to existing buildings in the area, the alternative would ensure future
development would have less shade/shadow impacts, as well as generate fewer automobile trips.
The anticipated mx of land uses would therefore be different than the proposed project, and a less
residential based area would result. Specific development characteristics that would be allowed under this
alternative relative to the proposed Transit Zoning Code (SD 84A and SD 84B) are specified in Table 3-2
(Alternative 3 and Proposed Transit Zoning Code [SD 84A and SD 84B] Characteristics).
3-6 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8 0A_? ? Considerations
Chapter 3 Findings Regarding Project Alternatives
Table 3-2
Land Use Type Alternative 3 an
Affemative 3 d Proposed Transit Zoning Code (SD 84A a
Characteristics
Trans# Zoning Code (SD 84A and SD 846) ` nd SD 84B)
Werence
Residential (units) 2,026 4,075 (2,049)
Retail (so 351,000 387,000 (36,000)
Industrial (so (990,000) (990,000) 0
Commercial (so (124,000) (124,000) 0
Civic (so (21,000) (21,000) 0
Green (so 680,000 680,000 0
Parking (1,534,000) (1,772,000) (238,000)
SOURCE: PBS&J 2010
Findings
The City hereby finds that specific economic, legal, social, technological, or other considerations make
the adoption of Alternative 3 infeasible.
Although Alternative 3 would reduce a significant and unavoidable impact of the proposed project to
aesthetics (shading and shadows) to a less than significant level, it would restrict development within the
City to low- to mid-rise development, which would not meet project objectives to the same extent as the
proposed project.
Specifically, this restriction would require a reduction in housing (including affordable housing) from
4,075 units to 2,026 units, which would not meet Santa Ana's Regional Housing Needs Assessment for
2006-2014, which call for 3,393 units, 1,248 of which must be affordable for low, very low, and extremely
low income households. The City of Santa Ana has a great need for affordable housing - sixty percent of
the households in Santa Ana have low, very low, and extremely low incomes. (City of Santa Ana General
Plan Draft Housing Element, Appendix A, p. A-10.) Goal 2 of the Housing Element is to "provide a
diversity of quality housing, affordability levels, and living experiences that accommodate Santa Ana's
residents and workforce of all household types, income levels, and age groups to foster an inclusive
community." Alternative 3 would not meet this goal to the same extent as the proposed project.
Similarly, it would not meet Housing Element policy 2.2, set forth below, to the same extent as the
proposed project:
HE-2.2 District Centers. Create high intensity, mixed-use urban villages and 24-hour
pedestrian-oriented experiences that support the mid-to high-rise office centers,
commercial activity, and cultural activities in the varied District Centers.
Alternative 3 would also fail to implement the following Housing Element policies to the same extent as
the proposed project:
HE-2.1 Downtown. Strengthen Santa Ana's core as a vibrant mixed-use and mixed-income
environment by capitalizing on the government center, arts district, and historic
downtown and facilitating transit-oriented development and diverse
neighborhoods.
Revised Station District Project and FOIL Settlement Agreement Findings of Fact/Statement of Overriding 3_7
Considerations
8OA-78
Chapter 3 Findings Regarding Project Alternatives
HE-2.3 Rental Housing. Encourage the construction of rental housing for Santa Ana's
residents and workforce, including a commitment to very low, low, and moderate
income residents and moderate income Santa Ana workers.
HE-2.4 Diversity of Housing Types. Facilitate and encourage a diversity and range in types,
prices, and sizes of housing, including single family homes, apartments, town
homes, mixed/multiuse housing, transit-oriented developments, and live/work
housing.
Alternative 3 would not meet the project's transit oriented objectives to the same extent as the proposed
project. Reducing the amount of housing and retail space would result in a failure to fully emphasize the
use of the SARTC for City residents. A mixed-use urban and transit-oriented neighborhood requires a
critical mass and balance between residential and non-residential uses. (Draft EIR, Section 5.5.)
Alternative 3 would not provide that critical mass and balance.
Reducing housing and retail opportunities would result in a failure to fully benefit from the investment in
the expansion of the transit system and would not adequately target growth in housing, employment, and
commercial development within walking distance of the existing and planned transit stations. In addition,
Alternative 3 would not implement SCAG RTP and RCP policies or established General Plan Land Use
Element policies 1.2, 1.3, 1.5, 1.6, 1.7, 1.9, 2.4, 2.6, 2.8, 2.9, 2.10, 4.3, 4.4, 4.5, 5.1, 5.2, 5.5, 5.7, 5.9, 5.10,
and 5.11, or Urban Land Use Element Goals 1 through 7 to the extent that the proposed project would.
(See Land Use Element; Urban Design Element; Draft EIR Table 4.7-3.) Specifically, Alternative 3
would not meet the following SCAG RTP Land Use Goals to the same extent as the proposed project:
¦ Create mixed-use districts or "complete communities" in strategic growth areas through a
concentration of activities with housing, employment, and a mix of retail and services, located in
close proximity to each other. Focusing a mix of land uses in strategic growth areas creates
complete communities wherein most daily needs can be met within a short distance of home,
providing residents with the opportunity to patronize their local area and run daily errands by
walking or cycling rather traveling by automobile.
¦ Intensify nodes along corridors with people-scaled, mixed-use developments. Many existing
corridors lack the residential and commercial concentration to adequately support non-auto transit
uses, without which the existing transit system cannot fully realize its potential for accommodating
additional trips and relieving the transportation system. These nodes along the corridor also create
vibrant, walkable communities with localized access to amenities, further reducing reliance on the
automobile for a variety of trips.
¦ Pedestrian-friendly environments and more compact development patterns in close proximity to
transit serve to support and improve transit use and ridership. Focusing housing and employment
growth in transit-accessible locations through this transit-oriented development approach will
serve to reduce auto use and support more multimodal travel behavior.
Additionally, the reduction in retail space under Alternative 3 would reduce potential new employment
opportunities, and the economic benefits that accompany such opportunities, as compared to the
proposed project. It would also reduce the amount of potential tax revenue that the City could use to
reinvest and stimulate economic development.
3-8 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-79 Considerations
Chapter 3 Findings Regarding Project Alternatives
On balance, the reduction in impacts to shading and shadows provided by this alternative do not
outweigh the costs associated with the loss of housing and retail opportunities that would also occur
under this alternative.
For these reasons, the City rejects Alternative 3 as infeasible.
3.4.2 Findings on Alternatives to the Proposed Transit Zoning Code
Analyzed in the Draft EIR
Alternatives 4, 5, and 6, described below, present alternatives to the proposed Developer Project. Under
each of these Alternatives, the proposed Transit Zoning Code would remain the unchanged. The Lead
Agency's findings on each alternative and the rationale behind each finding are set forth below.
¦ Alternative 4: No Demolition of Agency Properties/Rehabilitate in Place
Description
This alternative would eliminate the demolition of structures on the fourteen parcels within the Station
District currently owned by the City of Santa Ana Redevelopment Agency that were slated for
demolition under the proposed Developer Project (see Figure 5-1 [Demolitions]) and instead require that
those properties be retained and rehabilitated in their current locations. Additionally, the City/Agency
would not acquire any of the twenty parcels identified in Figure 5-2 [Potential New Santa Ana
Redevelopment Agency Acquisitions]. Upon completion of rehabilitation, the rehabilitated houses would
be offered for-sale as low or moderate income housing. The proposed Transit Zoning Code would
remain the same under this Alternative.
In total, this Alternative would provide approximately 75 rental units and approximately 24 for sale units
within the Station District, for a total of approximately 99 units. Of these, approximately 72 would be
rented to low, very-low and extremely-low income households, approximately 19 would be offered for
sale as low income units, and one would be offered for sale to those meeting the Orange County criteria
for Moderate Income. (See EIR Appendix J (Updated) [Alternatives Testing: Financial Analysis], Table 1,
Alternatives Analysis.) By contrast, approximately 124 units would be provided by the proposed
Developer Project, of which 121 would be rented to low, very-low and extremely-low income
households, and thirty two units would be offered for sale, of which six units would be offered for sale to
those meeting the Orange County criteria for Moderate Income. (Id.)
Findings
The City= hereby finds that specific economic, legal, social, technological, or other considerations make
the adoption of this alternative infeasible.
Construction of affordable housing units is critical to meeting the City's Regional Housing Needs
Assessment (RHNA) for 2006-2014. The City's RHNA calls for 3,393 units of new residential
construction, 694 of which are to be affordable to very low income households, 574 of which are to be
affordable to low income households, and 665 to be affordable to moderate income households (EIR,
Section 4.9). Alternative 4 would provide 37 fewer units that would be affordable to very-low, low and
Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 3_9
Considerations 8OA-80
Chapter 3 Findings Regarding Project Alternatives
moderate income households than the proposed Developer Project. This reduction in the number of
affordable housing units eliminates an opportunity to provide affordable housing in furtherance of
meeting the City's RHNA. It also eliminates the opportunity to provide Special Needs housing through
the Mercy House project.
Similarly, Alternative 4 does not to meet the City's policy of "maximiz[ing] affordable housing on
Agency-owned properties that is of high quality, sustainable, and available to various income levels." (See
Santa Ana Housing Element [2006-2014], Policy HE-2.8.) Nor does it go far enough to meet the City's
policy to "encourage the construction of rental housing for Santa Ana's residents and workforce,
including a commitment to very low, low and moderate income residents and moderate income Santa
Ana workers" (Policy HE-2.3) or its policy to "facilitate and encourage a diversity and range in types,
prices, and sizes of housing, including single-family homes, apartments, town homes, mixed/multiuse
housing, transit-oriented developments, and live/work housing" (Policy HE-2.4). (See Santa Ana
Housing Element [2006-2014].)
Further, the City of Santa Ana currently has a shortage of rental units appropriately sized to
accommodate families. As stated in the City's 2006-2014 Housing Element, while multiple-family
housing comprises 41% of all housing stock within the City, only 13% of multiple family and single-
family= rental units have three or more bedrooms. It is estimated that 45% of all families who rent have
five or more members. This translates into a shortage of 12,000 large family rental units. The Developer
Project contains 78 two-bedroom units (two of which are manager units) and 67 three-bedroom units. In
addition, the Mercy House project would provide one three-bedroom, five-one bedroom and five two-
bedroom units (exclusive of manager's unit) of special needs housing. These units are appropriately sized
to meet Santa Ana's identified demographic needs. Implementation of Alternative 4 would not further
the City's policies relating to the need for rental housing suitable for families, nor would it achieve the
project objectives described above.
Moreover, the California Legislature has enacted Government Code section 65589.5, the "Housing
Accountability Act," which restricts the City's ability to disapprove, or require density reductions, in
certain types of residential projects. Specifically, the City may not disapprove a housing development
project for very low, low-, or moderate-income households unless it makes certain findings set forth in
Government Code section 65589.5, subsection (d). The City is unable to make any of these findings at
this time. Therefore, disapproval of the proposed Developer Project is legally infeasible.
Additionally, Alternative 4 also affects the fixed ratio of construction costs but does not commensurately
reduce construction costs. Therefore, although the total cost of this alternative to the City/Agency would
be less than the proposed Developer Project, the cost/unit would be approximately $26,000 higher than
the proposed Developer Project. This is attributable to the fact that smaller apartment projects would be
developed under this alternative, which generate a higher per unit financial gap, according to the financial
analysis prepared by Keyser Marston Associates (KMA) for the City of Santa Ana (as updated on May
22, 2010) and included in Appendix J of the EIR. This is a significantly less efficient and effective way to
spend the funds available for redevelopment of the Agency-owned parcels than the proposed Developer
Project.
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Chapter 3 Findings Regarding Project Alternatives
Further, under Alternative 4, the proposed park identified in the Developer Project would no longer be
included as a project component. The park was one element of several in the overall vision for
development of the Agency-owned properties. The selection of Alternative 4 effectively eliminates the
ability to construct a park on the block on which it is currently envisioned given that the three structures
currently located on the Agency-owned properties within that block would remain under Alternative 4,
and the City/Agency under this scenario would be precluded from acquiring any additional properties.
Further, Alternative 4 would not meet the objective of the Developer Proposal to redevelop all of the
Agency-owned properties, and, as explained above, it would not meet the objective of providing new
affordable housing for families in furtherance of the City's affordable housing goals to the same extent as
the proposed project. Also, it is unlikely that the City/Agency would be able to attract a quality developer
to undertake a small scale scattered site development such as that which would be constructed under
Alternative 4. This will seriously constrain the potential for providing economically viable
redevelopment.
In light of these considerations, the City rejects this alternative as infeasible.
¦ Alternative 5: No Demolition of Agency Properties/Relocate to Agency-
Owned Infill Sites/Rehabilitate in Place
Description
This alternative would eliminate the demolition on the fourteen parcels within the Station District
currently owned by the City of Santa Ana Redevelopment Agency that were slated for demolition under
the proposed Developer Project (see Figure 5-1 [Demolitions]). Instead, those properties would be
rehabilitated in place or moved to vacant lots and rehabilitated, with the exception of the property
located at 611 N. Minter Street, which would be demolished. Of the properties identified for demolition
on parcels currently owned by the Agency, and those that may potentially be acquired in the future, only
one is currently listed on the Santa Ana Register of Historical Properties-the Whitson-Powelson House
located at 501 E. Fifth Street. The remaining houses have primarily been the subject of "windshield"
surveys to determine their potential eligibility for listing as a historic resource. (See EIR, Section 4.4 and
Appendix D.) Following a comprehensive historic survey of the properties, the City's Historic Resources
Commission would evaluate all of the structures to determine their eligibility for listing on the City's
Register of Historical Properties and would make recommendations regarding the selection of houses to
be moved and onto which sites they should be moved. Once moved and/or rehabilitated the houses
would then be offered as for-sale affordable housing. The proposed Transit Zoning Code would remain
the same under this Alternative.
In total, this Alternative would provide approximately 145 units (approximately 124 rental units and
approximately 21 for sale units) on the Agency-owned parcels within the Station District. Of these,
approximately 121 units would be rented to low, very-low and extremely-low income households. (See
EIR Appendix J [Alternatives Testing: Financial Analysis], Table 1, Alternatives Analysis.) This is the
same number of units that would be rented to low, very-low and extremely-low income households in
the proposed Developer Project. (Id.) Alternative 5 would also offer for sale 16 low income units, one
moderate income unit and four market rate units.
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Chapter 3 Findings Regarding Project Alternatives
Findings
The City hereby finds that specific economic, legal, social, technological, or other considerations make
the adoption of this alternative infeasible. Specifically, Alternative 5 would reduce the number of
residential units by 11 and would increase costs to the Agency by approximately $6.62 million, according
to the financial analysis prepared by Keyser Marston Associates (KMA) for the City of Santa Ana (as
updated on May 22, 2010) and included in Appendix J of the EIR. Additionally, this alternative would
cost the Agency approximately $56,800 more per unit than the proposed Developer Project, due
primarily to the substantial rehabilitation and relocation costs that would be involved in this alternative.
(See Appendix J (updated).) This represents a 39% increase in per unit costs. This is a significantly less
efficient and effective way to spend the funds available for redevelopment of the Agency-owned parcels
than the proposed Developer Project. The significant additional cost to the Agency of this Alternative
renders it economically infeasible.
Additionally, Alternative 5 does not meet the City's policy of "maximiz[ing] affordable housing on
Agency-owned properties that is of high quality, sustainable, and available to various income levels."
(Refer to Santa Ana Housing Element [2006-2014], Policy HE-2.8.) Nor does it go far enough to meet
the City's policy to "encourage the construction of rental housing for Santa Ana's residents and
workforce, including a commitment to very low, low and moderate income residents and moderate
income Santa Ana workers" (Policy HE-2.3) or its policy to "facilitate and encourage a diversity and
range in types, prices, and sizes of housing, including single-family homes, apartments, town homes,
mixed/multiuse housing, transit-oriented developments, and live/work housing." (Policy HE-2.4).
(Refer to Santa Ana Housing Element [2006-2014].)
Moreover, the California Legislature has enacted Government Code Section 65589.5, the "Housing
Accountability Act," which restricts the City's ability to disapprove, or require density reductions, in
certain types of residential projects. Specifically, the City may not disapprove a housing development
project for very low, low-, or moderate-income households unless it makes certain findings set forth in
Government Code section 65589.5, subsection (d). The City is unable to make any of these findings at
this time. Therefore, disapproval of the proposed Developer Project is legally infeasible.
Further, under Alternative 5, the proposed park identified in the Developer Project would no longer be
included as a project component. The park was one element of several in the overall vision for
development of the Agency-owned properties. The selection of Alternative 5 effectively eliminates the
ability to construct a park on the block on which it is currently envisioned given that the three structures
currently located on the Agency-owned properties within that block would remain under Alternative 5.
Finally, Alternative 5 would not meet the objective of the Developer Proposal to redevelop all of the
Agency-owned properties. Nor would it meet the objective of providing an economically viable
redevelopment scenario for Agency-owned properties, as explained above or the objective of providing
new affordable housing for families in furtherance of the City's affordable housing goals to the same
extent as the proposed project.
In light of these considerations, the City rejects this alternative as infeasible.
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Chapter 3 Findings Regarding Project Alternatives
¦ Alternative 6: Rehabilitate 611 N. Minter Street in Place
Description
This alternative would be identical to the proposed Developer Project, with the exception that the
bungalow court located at 611 N. Minter Street would be retained and rehabilitated. Once rehabilitated,
the units at 611 N. Minter Street would be offered for rent to very-low and extremely-low income
households. Alternative 6 would provide 88 rental units, of which 85 would be available to low, very-low
and extremely-low income households, and would provide 32 ownership units, of which six units would
be available for sale to households meeting the Orange County criteria for Moderate Income. In total,
this Alternative would provide approximately 36 fewer low, very-low and extremely-low income units
than the proposed Developer Project. (See EIR Appendix J (updated) [Alternatives Testing: Financial
Analysis], Table 1, Alternatives Analysis.)
Findings
The City hereby finds that specific economic, legal, social, technological, or other considerations make
the adoption of this alternative infeasible.
Specifically, as described above, construction of affordable housing units is critical to meeting the City's
RHNA for 2006-2014. The location of the 611 N. Minter Street property at the southeast corner of
Minter Street and Santa Ana Boulevard serves as one of the primary foundations of both the
architectural and engineering design of the largest component of the Developer Project. By eliminating
this property from the overall site (identified as Rental Lot 1 on Figure 3-7) it forces a significant
redesign of the multi-family development project proposed for this site and results in a significant
reduction of units, all of which would be deed-restricted for long-term affordability.
Elimination of 36 affordable housing units from the proposed Developer Project inhibits the City's
ability to meet its housing requirements. It also inhibits the City's ability to "maximize affordable housing
on Agency-owned properties that is of high quality, sustainable, and available to various income levels"
(Policy HE-2.8). (See Santa Ana Housing Element (2006-2014).) This alternative also does not go as far
to "encourage the construction of rental housing for Santa Ana's residents and workforce, including a
commitment to very low, low and moderate income residents and moderate income Santa Ana workers"
(Policy HE-2.3) or to "facilitate and encourage a diversity and range in types, prices, and sizes of housing,
including single-family homes, apartments, town homes, mixed/multiuse housing, transit-oriented
developments, and live/work housing" (Policy HE-2.4). (Id.)
In addition to creating infeasibilities due to the reduction in total affordable housing yield, the proposal
to rehabilitate the existing units contained within the 611 N. Minter Street bungalow court would not be
consistent with the policies contained in the 2006-2014 Housing Element, which identifies the need to
create rental units appropriately sized for large families. The existing bungalows at 611 N. Minter Street
are currently configured as studio units. The sleeping area is comprised of a "Murphy-style" fold-out bed
and the kitchen facilities are minimal. In addition, the property is severely deteriorated. The most likely
rehabilitation scenario, which would require the consolidation of existing units, would result in the
creation of one one-bedroom unit and six two-bedroom units. This is a much less desirable unit mix than
that achieved by the Developer Project.
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Considerations 8OA-8 A
Chapter 3 Findings Regarding Project Alternatives
Moreover, the California Legislature has enacted Government Code section 65589.5, the "Housing
Accountability Act," which restricts the City's ability to disapprove, or require density reductions, in
certain types of residential projects. Specifically, the City may not disapprove a housing development
project for very low, low-, or moderate-income households unless it makes certain findings set forth in
Government Code section 65589.5, subsection (d). The City is unable to make any of these findings at
this time. Therefore, disapproval of the proposed Developer Project is legally infeasible.
Alternative 6 also affects the fixed ratio of construction costs but does not commensurately reduce
construction costs. Specifically, although the total cost of this alternative to the City/Agency would be
slightly less than the proposed Developer Project, the cost/unit would be approximately $40,000 higher.
(Appendix J (updated).) This is a significantly less efficient and effective way to spend the funds available
for redevelopment of the Agency-owned parcels than the proposed Developer Project.
Finally, Alternative 6 would not meet the objective of the Developer Proposal to redevelop all of the
Agency-owned properties, and it would not meet the objective of providing new affordable housing for
families in furtherance of the City's affordable housing goals to the same extent as the proposed project.
Also, it is unlikely that the City/Agency would be able to attract a quality developer to undertake a small
scale scattered site development such as that which would be constructed under Alternative 6. This will
seriously constrain the potential for providing economically viable redevelopment.
In light of these considerations, the City rejects this alternative as infeasible.
3.4.3 Findings on Alternatives that were Considered but Eliminated
from Detailed Analysis in the Draft EIR
In addition to the six alternatives evaluated in the Draft FIR, the Lead Agency considered two other
alternatives, both of which it eliminated from detailed analysis in the FIR either because it did not meet
most of the basic project objectives, would not reduce or avoid significant impacts of the project as
proposed, and/or is not feasible. These alternatives are discussed below.
¦ Alternative Site
This alternative would use an alternative site from that proposed for the Transit Zoning Code and
Developer projects.
Findings
The City hereby finds that specific economic, legal, social, technological or other considerations make the
adoption of an Alternative Site alternative infeasible. The Transit Zoning Code is designed to guide
development near existing and planned transit and is therefore dependant on the location described for
the proposed project. An alternative site for the Transit Zoning Code project would not locate
development or provide the framework for development near existing or planned transit infrastructure.
Therefore, it would not be able to fulfill the basic project objectives of providing a transit-supportive,
pedestrian-oriented development framework to support the addition of new transit infrastructure, nor
would it encourage alternative modes of transportation, or increase access to the rail system that
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8OA-85 Considerations
Chapter 3 Findings Regarding Project Alternatives
connects San Diego to Los Angeles. Failure to meet these key project objectives renders an alternative
site infeasible.
It would also be infeasible to develop the proposed Developer Project in an alternative location.
Currently the Redevelopment Agency owns a cluster of parcels in the proposed project area and is
considering the acquisition of other properties in the vicinity of these Agency-owned parcels. The
proposed Developer Project is designed and proposed to redevelopment these specific properties. It
would not be practical or feasible to abandon plans for these parcels and begin new future acquisitions
elsewhere, and doing so would fail to meet most of the basic project objectives of the Developer Project.
Specifically, an alternative location would not result in redevelopment of the Agency-owned properties,
would not enhance the streetscape and urban form of the area, particularly along Santa Ana Boulevard,
with the construction of new buildings that meet the standards contained in the Transit Zoning Code
and that support future transit planning, and would not provide an economically viable redevelopment
scenario for the Agency-owned properties. Further, comparable parcels within the entire Transit Zoning
Code are limited by proposed future uses and incompatible existing surrounding uses. Therefore, the
proposed site of the Developer Project is the only feasible location for this redevelopment project.
¦ Rehabilitation of Potential New Acquisitions Alternative
In this alternative, the Redevelopment Agency would acquire properties within the Developer Project in
order to complete blocks where the Agency already has an ownership interest, as it would under the
proposed Developer Project. However, instead of demolishing these structures, the Redevelopment
Agency would rehabilitate them in place.
Findings
The City hereby finds that specific economic, legal, social, technological or other considerations make the
adoption of this alternative infeasible. This alternative would prevent redevelopment of Agency-owned
properties, a key project objective of the Developer Project. It would also substantially limit the
opportunity to provide new affordable housing for families in furtherance of the City's affordable
housing goals established in the Housing Element, the Implementation Plan for the Santa Ana Merged
Redevelopment Project Area, and the City of Santa Ana Consolidated Plan. Further it would not enhance
the streetscape and urban form of the area, particularly along Santa Ana Boulevard, with the construction
of new buildings that meet the standards contained in the Transit Zoning Code and that support future
transit planning. Nor would it secure provision of public open space or facilitation of a joint use
arrangement with SAUSD for a new community center. Finally, it would not provide an economically
viable redevelopment scenario for the Agency-owned properties. Additionally, it would result in the
elimination of an opportunity to provide new quality housing. As a result, if demolition of the properties
that may be acquired by the Agency were precluded, the Redevelopment Agency would not pursue their
acquisition, and the benefits of the Developer Project, including the creation of new public open space,
the elimination of blight, and an enhancement of the streetscape, would not be realized.
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Chapter 3 Findings Regarding Project Alternatives
3.4.4 Additional Findings
¦ Findings Related to Clarifications and Updates to the Draft EIR
Chapter 3 of the Final EIR includes the comments received on the Draft EIR and responses to those
comments. The focus of the responses to comments is on the disposition of significant environmental
issues as raised in the comments, as specified by CEQA Guidelines § 15088(b). Additionally, as a result
of refinements to the proposed Developer Project since publication of the Draft EIR, the allocation of
rental of units and for sale units that would be constructed under the proposed Developer Project and
under Alternatives 4, 5 and 6 has been slightly modified. The February 23, 2010 financial analysis
prepared by Keyser Marston Associates that was included as Appendix J to the EIR has been updated to
reflect these modifications. The updated financial analysis, dated May 22, 2010, is included as Appendix J
to the Final FIR.
Findings
Responses to comments made on the Draft EIR and revisions to the Final EIR merely clarify and
amplify the analysis presented in the EIR and do not trigger the need to recirculate per CEQA Guide-
lines §15088.5(b). Similarly, the refined reallocation of rental and for sale residential units that would be
provided by the Developer Project and the updates to the Keyser Marston Associates financial analysis
merely clarify and amplify the analysis presented in the EIR and do not trigger the need to recirculate per
CEQA Guidelines §15088.5(b).
¦ Findings on Measures Suggested in Comments on the Draft EIR
Several mitigation measures and alternatives were proposed in public comments on the Draft EIR.
Findings for these mitigation measures and alternatives are provided below.
Findings on Mitigation Measures Proposed to Reduce Impacts to Cultural Resources
¦ Proposed Mitigation Measure. Make the Lacy Neighborhood a special district based on its
historical character and proposed a Historic Neighborhood District, Conservation or Preservation
Overlay for the Lacy Neighborhood. (See Final EIR Chapter 3 (Responses to Comments), Letter
from Jeff Dickman (JD), comments JD-24, -27, -35, and -45.)
Finding. The City finds that specific economic, legal, social, technological, or other considerations
make this mitigation measure infeasible.
Rationale. The Lacy neighborhood has not been designated as historic, and there is no evidence
that the creation of a historic district within the Lacy Neighborhood would reduce the significant
impacts of the proposed project. Further, the creation of a historic district within the City is a
separate process requiring adoption of a local preservation ordinance and cannot be accomplished
through the CEQA process for the proposed project. (See Santa Ana Municipal Code, Part II,
Chapter 30.) Therefore, it is not feasible to adopt and implement this measure as part of the
project.
¦ Proposed Mitigation Measure. Create a "Master Plan for the Preservation of Cultural Resources
in the Transit Zoning Code Area" that identifies properties expected to be impacted by the project,
the type of impact expected, and mitigation measures to reduce impacts to and avoid demolition of
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Chapter 3 Findings Regarding Project Alternatives
historic properties. (See Final EIR Chapter 3 (Responses to Comments), Letter from Jeff Dickman
(JD), comment JD-26.)
Finding. The City finds that specific economic, legal, social, technological, or other considerations
make this mitigation measure infeasible.
Rationale. Identification of the properties that would be impacted by the project, identification of
the type of impact expected, and identification of mitigation measures to reduce impacts and avoid
demolition of historic properties has already been conducted in the EIR. Specifically, Table 4.4-2
(as modified in Final EIR Chapter 2) lists all properties proposed for demolition under the
proposed Developer Project, and the analysis under Impact 4.4-3 explains that multiple studies
have been completed that address many of the historic-age properties within the project area. In
2006, HRG conducted a reconnaissance-style survey and historic research project in support of the
Santa Ana Renaissance Specific Plan prepared by Moule & Polyzoides (HRG 2006). This project
aimed to provide recommendations for historic preservation planning on about 400 acres,
including many of the properties found within the Transit Zoning Code (SD 84A and SD 8413)
project area. Subsequent property-specific studies were conducted by Jones and Stokes (2006 and
2007), which resulted in the full recordation and evaluation of many of the properties within the
Transit Zoning Code (SD 84A and SD 84B) project area. These evaluations included
determinations of eligibility for the NRHP, CRHR, and the Santa Ana Register of Historic
Properties (SARHP). An additional historic resources memorandum for the record was then
prepared for several properties in Santa Ana by Sapphos Environmental, Inc. This memorandum
provided recommendations about the eligibility of 30 properties for inclusion in the SARHP.
(Refer to DEIR, Appendix D.) Table 4.4-1 lists all properties listed on the SARHP that could be
impacted by the proposed Transit Zoning Code, and Figure 4.4-1 shows all of these properties on
a map of the Transit Zoning Code area and the surrounding areas.
The EIR then identifies Mitigation Measure MM4.4-3 to reduce impacts to historic resources
throughout the Transit Zoning Code Area. This measure would require a qualified professional to
conduct site specific historical resource investigations for future developments within the project
area that would demolish or otherwise physically affect buildings or structures 50 years old or older
or affect their historic setting.
¦ Proposed Mitigation Measure. Preserve historic properties in the Lacy Neighborhood. (See
Final EIR Chapter 3 (Responses to Comments), Letter from Jeff Dickman QD), comment JD-28.)
Finding. The City finds that specific economic, legal, social, technological, or other considerations
make this mitigation measure infeasible.
Rationale. There are a very limited number of designated historic resources in the Lacy
Neighborhood (see Draft EIR Figure 4.4-1 [Santa Ana Register of Historical Properties within the
Transit Zoning Code Area]), and the neighborhood itself has not been designated as historic.
Mitigation measure MM4.4-3 would reduce impacts to historic resources throughout the Transit
Zoning Code Area to the extent feasible. Preservation of all historic properties in the Lacy
Neighborhood is not feasible because it may inhibit the City's ability to meet its affordable housing
goals. Construction of affordable housing units is critical to meeting the City's Regional Housing
Needs Assessment (RHNA) for 2006-2014, and the City has an adopted policy to "maximize
affordable housing on Agency-owned properties that is of high quality, sustainable, and available to
various income levels." (See Santa Ana Housing Element [2006-2014], Policy HE-2.8.)
Additionally, preservation of certain properties within the Lacy Neighborhood may inhibit the
City's ability to "encourage the construction of rental housing for Santa Ana's residents and
workforce, including a commitment to very low, low and moderate income residents and moderate
Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 3-17
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Chapter 3 Findings Regarding Project Alternatives
income Santa Ana workers" (Policy HE-2.3) and to fulfill its policy to "facilitate and encourage a
diversity and range in types, prices, and sizes of housing, including single-family homes,
apartments, town homes, mixed/multiuse housing, transit-oriented developments, and live/work
housing" (Policy HE-2.4). (See Santa Ana Housing Element [2006-2014].)
Further, preservation of all historic properties within the Lacy Neighborhood would be
inconsistent with the objectives of the proposed Developer Project to "redevelop all of the
Agency-owned properties" and "provide new affordable housing for families in furtherance of the
City's affordable housing goals established in the Housing Element, the Implementation Plan for
the Santa Ana Merged Redevelopment Project Area, and the City of Santa Ana Consolidated
Plan."
¦ Proposed Mitigation Measure. In-place rehabilitation, residential and business re-use, and/or
relocation of historic properties to vacant land within the Lacy Neighborhood. (See Final EIR
Chapter 3 (Responses to Comments), Letter from Jeff Dickman (JD), comments JD-34, 38.)
Finding. The City fords that specific economic, legal, social, technological, or other considerations
make this mitigation measure infeasible.
Rationale. Funding for development of the Agency-owned properties within the Lacy
Neighborhood is contingent upon these funds being spent on residential uses. Therefore, use of
these funds for non-residential adaptive re-use is prohibited. Accordingly, commercial re-use of
historic properties on the Agency-owned parcels within the Lacy Neighborhood is legally
infeasible.
Additionally, in-place rehabilitation and/or relocation and rehabilitation of properties proposed for
demolition on Agency-owned parcels within the Lacy Neighborhood are evaluated in Recirculated
Draft EIR (Chapter 5.0). Specifically, Alternative 4 would eliminate the demolition of the
structures currently existing on the Agency-owned properties and/or identified for acquisition, and
would instead require that those properties be retained and rehabilitated in their current locations.
Alternative 5 would reduce the demolition of properties owned by the Redevelopment Agency
and/or identified for acquisition, and would instead require that those properties be rehabilitated,
either in-place or off-site, with the exception of the property at 611 N. Minter Street, which would
be demolished. Alternative 6 would retain and rehabilitate the bungalow court located at 611 N.
Minter Street; however, the remainder of the structures located on the Agency-owned parcels
would be demolished. Please see Chapter 5.0 for additional details about these Alternatives.
¦ Proposed Mitigation. Creation of a community park within the Lacy Neighborhood by taking
the following actions:
> Close a portion of Sixth Street between Porter and Lacy. Relocate 3 of the vintage houses on
the south side of Sixth Street to other vacant land on Fifth Street.
> Build a single row of new housing along the south side of Santa Ana Blvd. Use the remainder of
the land south of this single row of new housing to create another segment of the park.
> Acquire 617 E. Sixth for park purposes. Salvage the wood components from this structure
before demolition.
> Preserve in place 701 and 713 E. Fifth Street.
(See Final EIR Chapter 3 (Responses to Comments), Letter from Jeff Dickman OD), comment
JD-39.)
Finding. The City finds that specific economic, legal, social, technological, or other considerations
make this mitigation measure infeasible.
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Chapter 3 Findings Regarding Project Alternatives
Rationale. Closing a portion of Sixth Street between Porter and Lacy is not feasible because it
would severely limit future transit planning within the City and would be inconsistent with the
Transit Zoning Code objective of "providing a transit-supportive, pedestrian-oriented
development framework to support the addition of new transit infrastructure." Further, street
closures are, in general, counter to the policies and design standards contained within the proposed
Transit Zoning Code. Maintaining a fine-grained, gridded street network allows for increased
pedestrian and vehicular accessibility which serves to disperse traffic throughout the area. In
addition, maintaining the existing street grid allows for greater opportunities for future
transportation alignments.
Similarly, building a single row of new housing along the south side of Santa Ana Blvd. and using
the remainder of the land south of this single row of new housing to create another segment of the
suggested park is infeasible because it would be inconsistent with the Developer Project objective
of "enhancing the streetscape and urban form of the area, particularly along Santa Ana Boulevard,
with the construction of new buildings that meet the standards contained in the Transit Zoning
Code and that support future transit planning."
It would also result in the loss of units that would otherwise be rented to low, very-low and
extremely-low income households. Construction of affordable housing units is critical to meeting
the City's Regional Housing Needs Assessment (RHNA) for 2006-2014, and the loss of such units
would be inconsistent with the City's adopted policy to "maximize affordable housing on Agency-
owned properties that is of high quality, sustainable, and available to various income levels." (See
Santa Ana Housing Element [2006-2014], Policy HE-2.8.) Additionally, the loss of affordable
housing units would be inconsistent with the City's policy to "encourage the construction of rental
housing for Santa Ana's residents and workforce, including a commitment to very low, low and
moderate income residents and moderate income Santa Ana workers" (Policy HE-2.3) and its
policy to "facilitate and encourage a diversity and range in types, prices, and sizes of housing,
including single-family homes, apartments, town homes, mixed/multiuse housing, transit-oriented
developments, and live/work housing" (Policy HE-2.4). (See Santa Ana Housing Element [2006-
2014].)
Further, the City of Santa Ana currently has a shortage of rental units appropriately sized to
accommodate families. As stated in the City's 2006-2014 Housing Element, while multiple-family
housing comprises 41% of all housing stock within the City, only 13% of multiple family and
single-family rental units have three or more bedrooms. It is estimated that 45% of all families who
rent have five or more members. This translates into a shortage of 12,000 large family rental units.
The Developer Project contains 78 two-bedroom units (two of which are manager units) and 67
three-bedroom units. In addition, the Mercy House project would provide one three-bedroom,
five-one bedroom and five two-bedroom units (exclusive of manager's unit) of special needs
housing. These units are appropriately sized to meet Santa Ana's identified demographic needs.
Reducing the number of units that could be provided by the proposed Developer Project would
not further the City's policies relating to the need for rental housing suitable for families
Moreover, under Health and Safety Code section 33334.2, in redevelopment project areas, not less
than 20 percent of the gross tax increment generated from a project must be used by the
redevelopment agency to increase and improve the community's supply of affordable housing.
Therefore, the use of funds for community serving infrastructure on the Agency-owned properties
must be related and proportional to development of affordable housing. There is no evidence that
funds need to construct the community park suggested by the commenter would be proportional
to the provision of affordable housing. Without such proportionality, it would be legally infeasible
to use the Agency's set-aside funds to construct the park suggested by the commenter.
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Chapter 3 Findings Regarding Project Alternatives
Finally, the EIR analyzed numerous alternatives to the proposed project that would reduce impacts
to historic resources. (See Recirculated EIR Chapter 5.0.) Specifically, Alternative 4 would
eliminate the demolition of existing structures on Agency-owned properties and would eliminate
any of the new potential acquisitions identified in Figure 5-2. Therefore, the suggestion to preserve
in place 701 and 713 E. Fifth Street is within the range of alternatives already analyzed in Chapter
5.0. In addition, CEQA does not require alternatives to individual project components. The
suggestions provided in the comment are not considerably different from what is already analyzed
in the EIR and would not clearly lessen the significant environmental effects of the project.
Findings on Mitigation Measures Proposed to Reduce Impacts to
Transportation/Traf is
¦ Proposed Mitigation Measure. Add language to the proposed project zoning code that includes
measures for planned safety near rail crossings and suggested mitigation measures that include
grade separations for major thoroughfares, improvements to existing at-grade highway-rail
crossings, and continuous vandal resistant fencing or other appropriate barriers to limit access of
trespassers onto the railroad right-of-way. (See Final EIR Chapter 3 (Responses to Comments),
Letter from California Public Utilities Commission (CPUC), comment PUC-2.)
Finding. The City finds that specific economic, legal, social, technological, or other considerations
make this mitigation measure infeasible.
Rationale. The project would not have any significant impacts on safety at railroad crossings.
Therefore, mitigation measures that would require grade separations on project area roadways to
reduce potential auto/train conflicts are not required. Orange County Transportation Authority
(OCTA) is providing crossing safety enhancements at 10 railroad projects in the City of Santa Ana.
These planned upgrades will include flashing lights, pedestrian signals/gates, quad gates and raised
medians. Implementation of the Transit Zoning Code (SD 84A and SD 8413) project will enhance
safety for motorists and pedestrians. Current technology will also be used to upgrade traffic and
signal controllers with implementation of the proposed project. In addition to these project
components, the Transit Zoning Code will be amended to include policy language in the Street and
Network Concepts section that states: "Any future or planned development adjacent or near the
railroad right-of-way be planned with the safety of the rail corridor in mind. This includes
considering pedestrian circulation/destinations with respect to railroad right-of-way."
¦ Proposed Mitigation Measure. Identify improvements and/or funding mechanisms to mitigate
the project's traffic impacts. (See Final EIR Chapter 3 (Responses to Comments), Letter from City
of Tustin (TUS), comment TUS-5.)
Finding. The City finds that specific economic, legal, social, technological, or other considerations
make this mitigation measure infeasible.
Rationale. The DEIR identifies mitigation measures needed as a result of expected project-
generated traffic in Section 4.11.3. Specific improvements are identified in mitigation measures
MM4.11-1 through MM4.11-16. Further, mitigation measure MM4.11-4 requires the City of Santa
Ana to "institute a program for systematic mitigation of impacts as development proceeds within
the Transit Zoning Code to ensure mitigation of the individual improvements." The program is
required to include, among other things, "a funding and improvement program ... to identify
financial resources adequate to construct all identified mitigation measures in a timely basis."
(Draft EIR Section 4.11.3, MM4.11-4.) The mitigation measures suggested by the City of Tustin
are already included in the project and will not provide meaningful additional mitigation beyond
the measures that are adopted.
3-20 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-91 Considerations
Chapter 3 Findings Regarding Project Alternatives
Findings on Mitigation Measures Proposed to Reduce Impacts to Public Services
¦ Proposed Mitigation Measure. Require the application of parkland in-lieu fees in conjunction
with development of the project. (See Final EIR Chapter 3 (Responses to Comments), Letter from
City of Tustin (TUS), comment TUS-2.)
Finding. The City fords that specific economic, legal, social, technological, or other considerations
make this mitigation measure infeasible.
Rationale. Development under the Transit Zoning Code project and Developer Project is
required to comply with mitigation measure MM4.10-5, which requires payment into the Park
Acquisition and Development Fund pursuant to Santa Ana Municipal Code Chapter 35, Article IV.
Over and above the requirement for new development to pay into the Park Acquisition and
Development Fund, the Redevelopment Agency is pursuing the acquisition and construction of a
range of potential open space amenities within the Transit Zoning Code area, which could include
a public park, new community center and a tot lot. Finally, the standards for private open space
contained within the Transit Zoning Code are designed to ensure that new development provide
open space and outdoor amenities on-site as part of the project design. Consequently, the impact
of the project on park facilities is less than significant and no further mitigation is needed.
Findings on Mitigation Measures Proposed in Comments Received Since the Planning
Commission Hearing on May 27, 2010
¦ Proposed Mitigation Measure. Adaptive reuse of any of the viable Lacy Neighborhood
resources. (Letter from Susan Brandt-Hawley, dated June 4, 2010.)
Finding. The City finds that specific economic, legal, social, technological, or other considerations
make this mitigation measure infeasible.
Rationale. The concept of "adaptive reuse" generally refers to the process of converting a
structure traditionally occupied by one use, such as a house used for residential purposes, to
another use, such as house converted to an office. All Agency-owned parcels within the Lacy
Neighborhood were purchased using 20% Set-Aside Redevelopment Agency funding. This
funding source is restricted in its use and may only be used to support projects which result in the
production of affordable housing as defined by State law. (Health and Safety Code § 33334.2 ).
Were the Agency to use these funds for any purposes not relating to increasing, improving, and
preserving the community's supply of low- and moderate-income housing available at affordable
housing cost, the Redevelopment Agency would be required to make a finding that there is no
longer a need in the community to provide such housing. The Agency has not made and cannot
make such a finding in light of the demonstrated need for such housing. On the contrary, the
City's recently adopted and certified Housing Element details the need for affordable housing the
community at all levels of affordability. The scenarios analyzed in Alternatives 4, 5 and 6 all were
based on the restriction of this funding source to provide for affordable housing and, as such,
provided for continued use of the identified structures for residential purposes, specifically for
affordable housing. Adaptive reuse alternatives are found to be legally infeasible due to this
funding restriction. Adaptive reuse would result in nonresidential development, which is also
contrary to both the City and Agency's policy interest in promoting affordable housing in this
merged Project Area. (California Native Plant Society v. City of Santa Cm- (2009) 177 Cal.AppAth 957;
City of Del Mar v. City of San Diego (1982) 133 Ca1.App.3d 401.) Please also refer to the Findings on
Mitigation Measures Proposed to Reduce Impacts to Cultural Resources in the Findings of Fact
and Statement of Overriding Considerations for a further discussion.
Revised Station District Project and FOL Settlement Agreement Findings of FacVStatement of Overriding 3-21
Considerations 8OA-92
Chapter 3 Findings Regarding Project Alternatives
¦ Proposed Mitigation Measure. Revise mitigation measure MM4.6-1 to require future
development projects to adhere to "[...] the 4`h term Municipal NPDES Stormwater Permit for
the Santa Ana Region of Orange County as adopted on May 11, 2009." (Letter from Orange
County Public Works, dated June 3, 2010, comment OCPW-3.)
Finding. The City finds that specific economic, legal, social, technological, or other considerations
make this mitigation measure infeasible.
Rationale. Because the majority of the future development of the Transit Zoning Code may occur
years in the future, requiring development projects to comply with "current National Pollutant
Discharge Elimination System (NPDES) requirements" ensures compliance with the most up-to-
date standards over a long period of time, since the requirements that are in effect today may differ
in the future. Writing the mitigation measure in this way places the responsibility of complying
with NPDES regulations on future project proponents, regardless of how the regulations change
over time. Therefore, the City will adopt mitigation measure MM4.6-1 as set forth in the EIR.
Finding Related to Clarifications and Updates to the EIR in Response to Comments
Received Since the Planning Commission Hearing on May 27, 2010
Finding. Responses to all written and oral comments on the EIR received since the Planning
Commission Hearing on May 27, 2010, merely clarify and amplify the analysis presented in the EIR and
do not trigger the need to recirculate per CEQA Guidelines ?15088.5(b).
3-22 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-93 Considerations
CHAPTER 4 Findings on the Settlement Agreement
and the Revised Station District
Project
4.1 INTRODUCTION
As discussed above, the unincorporated association "Friends of the Lacy Historic Neighborhood" filed a
Petition for Writ of Mandamus against the City and Agency challenging the certification of the EIR and
approval of the TZC, the Station District Project and the related purchase and demolition of certain
structures in the Lacy Neighborhood in Orange County Superior Court Case No. 30-2010-00388033-
CU-WM-CZC (the "Litigation"). The parties to the litigation entered into a Settlement Agreement to
resolve and settle all claims related to the Litigation. The Settlement Agreement relates to and affects the
development of the Station District/Developer Project.
This chapter describes the primary differences between the Station District Project as previously
approved and the Station District Project as modified. It also describes the other terms of the Settlement
Agreement. Finally, this chapter includes findings that the Settlement Agreement does not result in any
substantial changes to the Station District Project or the circumstances under which the Station District
Project is undertaken that would require any major revisions in the Final EIR, and there is no new
information with respect to the Project that would require such revisions. Additionally, no other terms
of the Settlement Agreement would require revisions to the Final EIR or further environmental analysis
because the terms do not involve new significant environmental impacts or a substantial increase in the
severity of an impact, and/or have no potential to result in a direct or indirect physical change in the
environment, and/or are otherwise exempt from CEQA.
4.2 PREVIOUSLY APPROVED STATION DISTRICT PROJECT
The Station District Project approved by the City and Agency in June 2010 proposed to construct 112
rental units and 32 for sale units. Construction of these units was proposed to occur on 43 Agency-
owned parcels in the Lacy Neighborhood. This construction would have resulted in the demolition of as
many as eighteen (18) residential properties, some of which were determined in the Final EIR to be
potentially significant historical resources and one of which is listed on the Santa Ana Register of
Historical Properties (SARHP). (See Final EIR, Section 4.4.)
4.3 REVISED STATION DISTRICT PROJECT
The Station District Project, as revised, would result in demolition of eight (8) residential properties and
would rehabilitate ten (10) residential properties, including the SARHP-listed property (501 E. Fifth
Street), all of which would be offered as rental units to very low and extremely low income tenants. In
total, the Revised Station District Project would construct 99 rental units and 24 for sale units. Though
Transit Zoning Code (SD 84A and SD 84B) EIR FWdinJ OCatement of Overriding Considerations 4-1
Chapter 4 Findings on the Settlement Agreement and the Revised Station District Project
the mix of rental and for sale units has been slightly altered, construction would occur on the same lots as
the previously approved Station District Project.
Table 4-1 Pro
Address perties to Be R
APN ehabilitated/Demolished Under the Revised Station
District Project
Action Under Revised Station DIM& Project
501 -501 1/2 E. 5th Street 398-332-09 Rehabilate in Place
507 Mortimer 398-332-09 Rehabilate in Place
505 E. 5th Street 398-332-08 Rehabilate in Place
505 N. Minter Street 398-333-09 Demolish
507 N. Minter Street 398-333-09 Rehabilate in Place
601-603 E. 5th Street 398-311-19 Rehabilate in Place
610-612 E. 5th Street 398-338-03 Relocate to 511 E. 5th St.
615-617 E. 5th Street 398-333-06 Rehabilate in Place
621 E. 5th Street 398-333-05 Rehabilate in Place
508-510 N. Porter St. 398-333-05 Demolish
620 E. 5th Street 398-338-05 Demolish
712 E. 5th Street 398-337-03 Rehabilate in Place
617 E. 6th Street 398-311-08 Demolish
613 E. 6th Street 398-311-07 Relocate to 602 E. 6th St.
615 A & B E. 6th Street 398-311-07 Demolish
609 E. 6th Street 398-311-06 Demolish
623 N. Garfield Street 398-313-04 Demolish
611 N. Minter Street 398-311-01 Demolish
4.4 OTHER SETTLEMENT AGREEMENT TERMS
Under the Settlement Agreement, the City and/or the Agency will take the following actions:
• Historic Survey. The City will retain a cultural resource professional who meets the Secretary of
the Interior's Professional Qualifications Standards for Architectural History to conduct a survey
to determine the historic status and eligibility for listing on either the California Register of
Historical Resources (CRHR) or the SARHP of all residential properties within the Lacy
Neighborhood with a construction date prior to 1961 that have not been surveyed within five (5)
years of the commencement of the survey.
• Lacy Neighborhood Housing Fund. The Agency will establish a $200,000 residential housing
fund to encourage homeowners in the Lacy Neighborhood to re-invest in the exterior of their
properties. The fund will provide loans of up to $25,000. In addition, funds may be used for
4-2 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-95 Considerations
Chapter 4 Findings on the Settlement Agreement and the Revised Station District Project
payment of fees associated with nomination of homes to the CRHR or SARHP and the Mills Act
Property Tax Abatement Program.
• Architectural Salvage. The Agency will retain a qualified contractor to conduct salvage prior to
demolition of any residential structures that will be demolished as part of the Revised Station
District Project.
• Miscellaneous. The Agency will also make one property, 611 Minter Court, available for sale and
relocation prior to its demolition, and for eighteen (18) months, the Agency will notify petitioners
"Friends of Lacy" of the Agency's intended demolition of properties for redevelopment in the
Lacy Neighborhood, other than those properties that would be demolished pursuant to the
Revised Station District Project.
4.5 FINDING ON REVISED STATION DISTRICT PROJECT
Finding. The City hereby finds that the Station District Project, as revised, is feasible and will not result
in any substantial changes to the Station District Project or the circumstances under which the Station
District Project is undertaken that would require any major revisions in the Final EIR, and there is no
new information with respect to the Project that would require such revisions.
Rationale. The revisions to the Station District Project do not involve any new significant
environmental effects or a substantial increase in the severity of previously identified significant effects.
Specifically, the primary change in the project is the reduction in the number of residential properties that
will be demolished, from as many as eighteen (18) under the previously approved project to 8 under the
Revised Station District Project. This change reduces the number of demolitions by ten (10) and,
therefore, reduces the significant impact identified in the Final EIR to historical resources. There are no
other changes to the project that have any potential to result in any increased direct, indirect or
cumulative environmental impacts.
4.6 FINDINGS ON OTHER SETTLEMENT AGREEMENT TERMS
Finding. The City hereby finds that the terms of the Settlement Agreement do not require revisions to
the Final EIR or further environmental analysis because the terms do not involve new significant
environmental impacts or a substantial increase in the severity of an impact, and/or have no potential to
result in a direct or indirect physical change in the environment, and/or are otherwise exempt from
CEQA.
Rationale. The preparation of an historic survey is exempt from CEQA under CEQA Guidelines §
15306, which exempts "information collection." Because the Historic Survey would simply evaluate
existing resources and would not result in any disturbance of environmental resources, it is exempt from
CEQA review. Establishment of the Lacy Neighborhood Housing Fund is similarly exempt from
CEQA because any improvements that would result from use of the fund would consist of repair,
maintenance or minor alterations of private structures involving negligible or no expansion of the
existing use. Therefore, establishment of the fund is exempt under CEQA Guidelines § 15301 (Existing
Facilities). Further, any rehabilitation of homes consistent with the Secretary of the Interior's Standards
Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 4-3
Considerations 8OA-96
Chapter 4 Findings on the Settlement Agreement and the Revised Station District Project
for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and
Reconstructing Historic Buildings would also be exempt under CEQA Guidelines § 15331. The salvage
program is also exempt under CEQA because it is a component of the ongoing salvage process with the
Santa Ana Historic Preservation Society, which began in 2004, and under the Existing Facilities
exemption (CEQA Guidelines § 15301) as it involves only minor exterior and interior alterations. All
other provisions of the Settlement Agreement have no potential for resulting in a direct or indirect
physical change on the environment and, therefore, are not "projects" as that term is defined in CEQA
Guidelines § 15378. Accordingly, they are covered by "the general rule that CEQA only applies to
projects, which have the potential for causing a significant effect on the environment. Where it can be
seen with certainty that there is no possibility that the activity in question may have a significant effect on
the environment, the activity is not subject to CEQA." (See CEQA Guidelines § 15061(b)(3).)
4.7 OTHER RELATED FINDINGS
The City hereby finds that the Mitigation Monitoring and Reporting Program adopted on June 7, 2010 in
connection with approval of the Transit Zoning Code and the Station District Project remains in effect.
4-4 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8O A-97 Considerations
Chapter 5 Statement of Overriding Considerations
CHAPTER 5 Statement of Overriding
Considerations
5.1 INTRODUCTION
Section 15093 of the CEQA guidelines states:
(a) CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social,
technological, or other benefits of a proposed project against its unavoidable environmental risks
when determining whether to approve the project. If the specific economic, legal, social,
technological, or other benefits of a proposed project outweigh the unavoidable adverse
environmental effects, the adverse environmental effects may be considered "acceptable."
(b) When the lead agency approves a project which will result in the occurrence of significant effects
which are identified in the final EIR but are not avoided or substantially lessened, the agency shall
state in writing the specific reason to support its actions based on the final EIR and/or other
information in the record. The statement of overriding considerations shall be supported by
substantial evidence in the record.
(c) If an agency makes a statement of overriding considerations, the statement should be included in
the record of the project approval and should be mentioned in the notice of determination. This
statement does not substitute for, and shall be in addition to, findings required pursuant to Section
15091.
This Statement of Overriding Considerations describes the anticipated economic, social, and other
benefits or other considerations of the Proposed Project to support the decision to proceed with the
project even though not all of the identified impacts are mitigated to a less-than-significant level.
5.2 UNAVOIDABLE SIGNIFICANT ADVERSE IMPACTS
Even with mitigation measures identified in the EIR for the project, the following significant impacts are
unavoidable because no feasible mitigation is available to further reduce the impacts to a less-than-
significant level. Refer to Chapter 2 (CEQA Findings) for further clarification regarding the impacts
listed below.
Aesthetics
Impact 4.1-5 Long-term cumulative development occurring pursuant to the Transit Zoning
Code (SD 84A and SD 84B) would result in a substantial increase in
shade/shadows over sensitive uses.
Cumulative As noted in the discussion for Impact 4.1-5, new sources of increased shade
would likely result from new development under the proposed Transit Zoning
Code (SD 84A and SD 8413). Since there is typically no feasible mitigation
available to reduce to less than significant or eliminate shading impacts, significant
and unavoidable shading impacts would result from the proposed Transit Zoning
Code (SD 84A and SD 8413). Cumulative development of additional medium- and
Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 5-5
Considerations 8OA-98
Chapter 5 Statement of Overriding Considerations
high-rise buildings would lead to additional shade impacts to various shade-
sensitive uses throughout the City. Therefore, cumulative shading impacts from
future projects in the Transit Village (IV) and Downtown (DT) Zones
constructed pursuant to the Transit Zoning Code would make a considerable
contribution to this significant cumulative impact.
Air Quality
Impact 4.2-5 Construction activities associated with the construction of individual projects
within the Transit Zoning Code area, including the Developer project, would
contribute substantially to an existing or projected air quality violation for criteria
air pollutants.
Impact 4.2-6 Operation of the proposed project would exceed South Coast Air Quality
Management District standards for VOC, NOX, CO, and PM, and would result
in a projected air quality violation.
Impact 4.2-7 Construction and operation of the proposed project would result in a
cumulatively considerable net increase of criteria pollutants for which the
proposed project region is in nonattainment under an applicable federal or state
ambient air quality standard.
Cumulative As the Basin is currently in nonattainment for ozone, CO, NOX, PM,,,, and PMZS,
cumulative development would violate an air quality standard or contribute to an
existing or projected air quality violation. Therefore, this is considered to be a
significant cumulative impact within the Basin. Construction under the proposed
project would make a cumulatively considerable contribution to this significant
impact. In addition, as discussed in Impact 4.2-6, operation at full buildout of the
proposed project would result in quantities of air emissions that exceed the
SCAQMD thresholds for VOC, NOX, CO, and PM,,,, and would create a
cumulatively considerable contribution to this significant impact.
Cultural
Impact 4.4-3 The adoption of the Transit Zoning Code (SD 84A and SD 84B) would result in
substantial adverse change in the significance of a historical resource as defined in
Section 15064.5 of the CEQA Guidelines.
Cumulative The cumulative analysis for impacts on cultural and paleontological resources
considers a broad regional system of which the resources are a part. The
cumulative context for the cultural and paleontological resources analysis is
Orange County as a whole. While the project impact analysis for cultural
resources necessarily includes separate analyses for historic-period resources and
archaeological resources, the cumulative analysis combines these resources into a
single, non-renewable resource base and considers the additive effect of project-
specific impacts to significant regional impacts on cultural resources. Because all
cultural resources are unique and non-renewable members of finite classes, all
adverse effects or negative impacts erode a dwindling resource base. Federal,
state, and local laws protect cultural resources in most instances. Even so, it is not
always feasible to protect cultural resources, particularly when preservation in
5-6 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
80 w _99 Considerations
Chapter 5 Statement of Overriding Considerations
place would frustrate implementation of projects. For this reason, the cumulative
effects of development in the Orange County region are considered significant.
However, because it is currently infeasible to determine whether future
development under the proposed Transit Zoning Code would result in demolition
or removal of historical resources within the project boundaries, the project's
incremental contribution to these cumulative effects would be cumulatively
considerable (i.e., the project would contribute to the loss of historical resources
in Orange County).
Noise
Impact 4.8-8 Operation of the Southern California Regional Rail Authority's (SCRRA) rail line
would potentially expose noise-sensitive land uses located within the Transit
Zoning Code (SD 84A and SD 84B) area to noise levels that exceed the standards
established by the City of Santa Ana General Plan.
Impact 4.8-9 Construction activities associated with the proposed project would generate or
expose persons or structures to excessive ground borne vibration.
Cumulative Construction of individual projects pursuant to the Transit Zoning Code would
produce temporary vibration impacts. As discussed in Impact 4.8-9, the
construction vibration impact would be significant and unavoidable. As individual
development projects under the Transit Zoning Code (SD 84A and SD 84B) area
may be constructed concurrently with each other or other related projects, it is
possible that intense construction from two or more projects would
simultaneously occur at distances of 50 feet or less from existing nearby
receptors. Therefore, vibration from future development would potentially
combine with construction vibration of other projects to result in a potentially
significant cumulative impact.
Cumulative The proposed project is located within close proximity to the Southern California
Regional Rail Authority's (SCRRA) rail line. Sensitive receptors, including
residential uses with exterior uses such as communal areas consisting of pocket
parks or pedestrian walkways and private balconies, may or may not be shielded
from noise generated by railroad operations. As a result, noise levels within these
areas may exceed the 65 dBA CNEL "Desirable Maximum" standard.
Transportation
Impact 4.11-9 Long-term cumulative development under implementation of the Transit Zoning
Code would result in impacts related to freeway ramps in the vicinity of the
Transit Zoning Code area.
Cumulative As identified in Impact 4.11-8, because implementation of the proposed project
would contribute to significant impacts at the study area intersections, and
because implementation of the potential improvement measures cannot be
guaranteed, the long-term cumulative development pursuant to the Transit
Zoning Code would have a considerable contribution to cumulative impacts.
Climate Change
Revised Station District Project and FOL Settlement Agreement Findings of FacVStatement of Overriding 5_7
Considerations 8OA-1 00
Chapter 5 Statement of Overriding Considerations
Impact4.13-1 Long-term cumulative development pursuant to the Transit Zoning Code at full
build-out would result in significant localized air quality impacts for operational
level emissions. As a whole, this impact is significant for operational emissions
due to the size of the Transit Zoning Code (SD 84A and SD 84B) area.
Impact 4.13-2 Long-term cumulative development pursuant to the Transit Zoning Code at full
build-out has the potential to conflict with AB 32. The Project as a whole is
significant for operational emissions due to the size of the Transit Zoning Code
(SD 84A and SD 84B) area.
¦ Short-Term Impacts
Of the sixteen significant unavoidable impacts directly attributable to the Proposed Project and
associated cumulative impacts, as identified above, four would be classified as short-term. These short-
term impacts are related to construction activities and their temporary effect on air quality and
groundborne vibration. Once the various construction projects are complete, these impacts would no
longer exist.
¦ Long Term Impacts
Of the sixteen significant unavoidable impacts directly attributable to the Proposed Project and
associated cumulative impacts, as identified above, twelve of the aforementioned impacts are considered
long-term.
5.3 OVERRIDING CONSIDERATIONS
The City hereby finds that economic, legal, social, technological or other benefits of the project outweigh
the significant and unavoidable impacts identified in the EIR. In making this fording, the City has
balanced the benefits of the project against its unavoidable significant impacts and has indicated its
willingness to accept those adverse impacts. The Santa Ana City Council finds that the following benefits
of the Project warrant approval of the Project notwithstanding its significant, unavoidable environmental
impacts.
The project objectives of the Transit Zoning Code component of the Project are to:
¦ Provide zoning for the integration of new infill development into existing neighborhoods
¦ Provide for a range of housing options, including affordable housing
¦ Allow for the reuse of existing structures
¦ Allow the development of the Agency properties
¦ Provide a transit-supportive, pedestrian-oriented development framework to support the addition
of new transit infrastructure
¦ Preserve and reinforce the existing character and pedestrian nature of the City by strengthening
urban form through improved development and design standards
¦ Encourage alternative modes of transportation, including the rail system that connects San Diego
to Los Angeles
5-8 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-101 Considerations
Chapter 5 Statement of Overriding Considerations
The objectives of the Developer Proposal component of the Project for the Agency-owned properties
are to:
¦ Redevelop all of the Agency-owned properties
¦ Provide new affordable housing for families in furtherance of the City's affordable housing goals
established in the Housing Element, the Implementation Plan for the Santa Ana Merged
Redevelopment Project Area, and the City of Santa Ana Consolidated Plan
¦ Enhance the streetscape and urban form of the area, particularly along Santa Ana Boulevard, with
the construction of new buildings that meet the standards contained in the Transit Zoning Code
and that support future transit planning
¦ Eliminate blight
¦ Provide additional public open space and facilitate joint use arrangement with SAUSD for a new
community center
¦ Provide an economically viable redevelopment scenario for the Agency-owned properties
Having (i) adopted all feasible mitigation measures, (ii) rejected as infeasible alternatives to the Project
discussed above, (iii) recognized all significant, unavoidable impacts, and (iv) balanced the benefits of the
Project against the Project's significant and unavoidable impacts, the City hereby finds that its benefits
outweigh and override its significant unavoidable impacts for the reasons stated below. Each benefit set
forth below constitutes an overriding consideration warranting approval of the project, independent of
the other benefits, despite each and every unavoidable impact.
¦ Project Benefits
a. The Transit Zoning Code component of the Project provides a framework for the development of
compact, transit-oriented development that contains a mix of residential, commercial and
professional uses in order to address the City's and the region's goals of providing sites for housing
in already urbanized locations that are adjacent to transit, thereby reducing vehicle trips and related
greenhouse gas emissions, as well as stimulating investment in underutilized land, and improving
the jobs/housing balance within the City. According to a study published by the Southern
California Association of Governments entitled "The New Economy and the Jobs/Housing
Balance in Southern California," the Los Angeles and Orange Counties regions have a higher
proportion of jobs to housing than do those areas in the Inland Empire. Due to a lack of readily
available land for new housing construction in these jobs-rich areas, workers are required to drive
farther and farther distances in order to find affordable housing. A situation that exacerbates this
lack of available land for new housing is the over-zoning of land for commercial uses, which cities
have historically done in order to increase sales tax revenues following the adoption of Proposition
13 in 1978. The Transit Zoning Code would re-zone property, either through standard zoning
tools or through overlay zones, that was not historically zoned for residential use, thereby
increasing the land available for residential development and providing more housing in an already
urbanized, jobs-rich environment (The New Economy and the Jobs/Housing Balance in Southern
California, Southern California Association of Governments, April 2001. Los Angeles, CA.)
b. The Transit Zoning Code area is ideally located for increased growth by its proximity to major
transit systems and its adjacency to existing residential communities and an established gridded
street network. The Transit Zoning Code supports the existing transportation network, and creates
amenity-enriched connections between the Government Center and Rail Station, and improves
area-wide walkability.
Revised Station District Project and FOL Settlement Agreement Findings of FaGVStatement of Overriding 5_9
Considerations
8OA-102
Chapter 5 Statement of Overriding Considerations
c. The Transit Zoning Code allows land uses and land densities that will provide transit-supportive
development necessary to generate adequate ridership on the proposed Santa Ana Fixed Guideway
transit system which will serve Santa Ana Regional Transit Center ("SARTC").
d. The Transit Zoning Code provides zoning which would allow for the integration of new infill
development into existing neighborhoods.
e. The Project is consistent with and furthers the goals, policies and objectives of the Southern
California Association of Governments ("SCAG") 2008 Regional Transportation Plan: Making the
Connections (RTP), and SCAG's 2008 Regional Comprehensive Plan: He ping Communities Achieve a
Sustainable Future (RCP) land use goals. The RTP's goals include identifying strategic areas for infill,
pedestrian friendly environments, and focusing housing and employment growth in transit-
accessible locations through transit-oriented developments (EIR, Section 4.7 [Land Use], and RTP,
pp. 90-91). The RCP includes similar strategies, such as establishment of mixed-use clusters and
other transit oriented development around transit stations and along transit corridors (RCP, pp.
15-17).
f. Development of the Transit Zoning Code will result in fewer traffic impacts than the No
Project/Reasonably Foreseeable Development (Table 5-3). This result is consistent with and
furthers the implementation strategies detailed in the California Resources Board Climate Change
Scoping Plan (Scoping Plan). AB 32 directed the California Air Resources Board (ARB) to develop
a Scoping Plan with actions to reach the target. The Scoping Plan's proposed strategies for local
governments include a greenhouse gas (GHG) reduction measure of "infill, affordable and transit-
oriented housing development and the land use changes necessary to increase such development."
(Scoping Plan, Vol. 1, C-76.)
g. The Transit Zoning Code plays a critical role in achieving targets under SB 375, California's
Sustainable Communities and Climate Protection Act. The ARB Scoping Plan cites the key role of
SB 375 in implementing AB 32, noting SB 375 "reflects the importance of achieving significant
additional reductions of greenhouse gas emissions from changed land use patterns and improved
transportation to help achieve the goals of AB 32." (Scoping Plan, p. 47.) The role of local
governments is also recognized in reaching SB 375 targets. "Local Governments have the ability to
directly influence both the siting and design of new residential and commercial developments in a
way that reduces greenhouse gases associated with vehicle travel, as well as energy, water, and
waste.... Enhanced public transit service combined with incentives for land use development that
provides a better market for public transit will play an important role in helping to reach regional
targets." (Scoping Plan, p. 48.) The AB 32 implementation strategy for SB 375 includes the following
measure: "Enhanced public transit service combined with incentives for land use development that
provides a better market for public transit will play an important role in helping to reach regional
targets." (Scoping Plan, p. 48.)
h. The City of Santa Ana currently has a shortage of rental units appropriately sized to accommodate
families. As stated in the City's 2006-2014 Housing Element, while multiple-family housing
comprises 41% of all housing stock within the City, only 13% of multiple family and single-family
rental units have three or more bedrooms. It is estimated that 45% of all families who rent have
five or more members. This translates into a shortage of 12,000 large family rental units. The
Developer Project contains 77 two-bedroom units and 68 three-bedroom units. In addition, the
Mercy House project will provide one three-bedroom and five two-bedroom units. These units are
appropriately sized to meet Santa Ana's identified demographic needs.
I. The City currently suffers from a shortage of affordable housing. As set forth in the City's certified
Housing Element (2006-2014), the City of Santa Ana's share of the Regional Housing Needs
5-10 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
80A-103 Considerations
Chapter 5 Statement of Overriding Considerations
Allocation (RHNA) for 2006-2014 3,393 units of new residential construction, 694 of which are to
be affordable to very low income households, 574 of which are to be affordable to low income
households, and 665 to be affordable to moderate income households (EIR, Section 4.9). State law
mandates that in order to satisfy its RHNA requirement the City create opportunities for new
housing, particularly affordable housing, through the application of zoning which allows for
increased density. The existing maximum density allowed under the current zoning within the area
covered by the Transit Zoning Code is 15 dwelling units per acre, though there are projects within
the area that were constructed prior to the establishment of the current zoning that exceed the 15
dwelling units per acre. The State Department of Housing and Community Development (HCD)
requires that cities provide zoning that allows for residential construction at a minimum density of
30 dwelling units per acre in order to meet the density criteria that HCD has established as being
supportive of affordable housing production. The City's Housing Element identified the
Renaissance Specific Plan area, which shares the same geographic boundary as the Transit Zoning
Code area, as one that has the potential to provide a new source of residential in-fill development
and, as such, was used to partially satisfy the City's RHNA requirement. During the planning
period covered by the Housing Element (2006-2014) it is estimated that the City could anticipate
up to 238 units of new residential development. Throughout the life of the Transit Zoning Code (a
planning horizon of 20 to 30 years) it is estimated that there could be as many as 4,075 new
residential units, a portion of which could be expected to meet affordability requirements. The
Project implements the Housing Element and provides the zoning necessary to stimulate new
affordable housing production.
J. The Developer Project component of the Project and the Mercy House project (and/or another
form of affordable housing or other use on the site of the Mercy House project) will provide up to
220 new residential units. As currently designed these projects will provide approximately 122
rental units affordable to those meeting the Orange County criteria for Low, Very-Low and
Extremely Low Income, three manager's units for the rental projects, approximately 24 for-sale
units, up to five of which will be affordable to those meeting the Orange County criteria for
Moderate Income, and the balance of which will be market-rate for-sale units. This creates a
combined total of approximately 149 new residential units. Of these, approximately 127 will be
deed-restricted affordable housing and will be counted towards the City's RHNA requirement.
These 127 affordable units represent 53% of all new units estimated to be constructed within the
2006-2014 planning horizon of the Housing Element for the Transit Zoning Code area and
represent 10% of the City's total RHNA requirement for Very Low and Low Income housing
(1,268 units - City of Santa Ana Housing Element 2006-2014 Table 4). This is a significant
contribution to meeting both the State mandated requirements for affordable housing production,
as well as meeting a real need for the residents of Santa Ana. In addition, the Mercy House project
(11 of the 127 previously described units) meets the City's criteria for Special Needs housing, also
identified as a need in the Housing Element. Failure to approve the Developer Project and the
Mercy House project will eliminate an important new source of affordable housing and special
needs housing.
k. The Project furthers the City's policy of "maximiz[ing] affordable housing on Agency-owned
properties that is of high quality, sustainable, and available to various income levels." (See Santa
Ana Housing Element [2006-2014], Policy HE-2.8.) It meets the City's policy to "encourage the
construction of rental housing for Santa Ana's residents and workforce, including a commitment
to very low, low and moderate income residents and moderate income Santa Ana workers" (Policy
HE-2.3) and its policy to "facilitate and encourage a diversity and range in types, prices, and sizes
of housing, including single-family homes, apartments, town homes, mixed/mull-use housing,
Revised Station District Project and FOL Settlement Agreement Findings of FacVStatement of Overriding 5-11
Considerations
8OA-104
Chapter 5 Statement of Overriding Considerations
transit-oriented developments, and live/work housing" (Policy HE-2.4). (See Santa Ana Housing
Element [2006-2014].) The Transit Zoning Code component of the Project accomplishes this by
creating zoning and affordable housing incentives that supports the development of new
affordable housing by allowing for densities which provide the economies of scale necessary to
allow for below-market construction. The Transit Zoning Code also provides for a wide variety of
housing types which includes everything from single-family detached houses to high-rise mixed-use
development. By allowing for a mixture of uses both horizontally on single properties, and
vertically within single buildings, the Transit Zoning Code provides opportunities for a diverse mix
of housing in furtherance of the City's Housing Element. The Developer Project and the Mercy
House component of the Project accomplish this by providing 125 new rental units and 24 new
for-sale units. Of these units, approximately 127 will be deed restricted to ensure their long-term
affordability. This new housing is comprised of a variety of product types including courtyard
housing, townhomes and row houses in furtherance of the provisions of the Housing Element and
the Transit Zoning Code.
1. The Transit Zoning Code provides for a planning and zoning framework to allow for the
redevelopment of the Agency-owned properties, thereby eliminating blight and providing for new
property tax generation. The Agency-properties are, for the most part, vacant land in the
ownership of a public agency and, as such, do not currently generate any property tax revenue. The
Project will allow for the redevelopment of these properties and their return to economic use. The
adoption of the Transit Zoning Code also allows for the future development of other vacant and
underutilized properties currently in private or public ownership in other parts of the project area.
One such example is the current County of Orange Operations Yard. The Operations Yard
comprises approximately 9.5 acres of underutilized land as the County of Orange continues to
consolidate their fleet and maintenance operations in other facilities. Adoption of the Transit
Zoning Code provides for the zoning framework and environmental analysis necessary to allow
these properties to transition into more economically productive uses and to potentially generate
new property and sales tax revenues. Many areas within the Transit Zoning Code suffer from a
lack of modern infrastructure and are in need of new street and sidewalk improvements. The
additional tax revenues generated by new development within the Transit Zoning Code area will
allow for reinvestment in public infrastructure and new investment that will stimulate the economy
of this area.
m. The Project furthers the Project Objectives set forth above, incorporated in full by this reference.
5-12 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-105 Considerations
RESOLUTION NO. CRA 2011-
A RESOLUTION OF THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF
SANTA ANA ADOPTING CEQA FINDINGS OF FACT
AND A STATEMENT OF OVERRIDING
CONSIDERATIONS AND APPROVING THE FIRST
AMENDMENT TO THE DISPOSITION AND
DEVELOPMENT AGREEMENT BETWEEN THE
AGENCY AND SANTA ANA STATION DISTRICT,
LLC AND MAKING CERTAIN OTHER FINDINGS IN
CONNECTION THEREWITH
BE IT RESOLVED BY THE MEMBERS OF THE BOARD OF THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, AS FOLLOWS:
Section 1. The Board of the Community Redevelopment Agency of the City of Santa
Ana hereby finds, determines and declares as follows:
A. The Community Redevelopment Agency for the City of Santa Ana
("Agency") entered into that certain Disposition and Development Agreement with Santa
Ana Station District, LLC ("Developer"), dated as of June 7, 2010 ("DDA"), a copy of
which is on file with the Agency, under which the Developer was to develop certain
property identified therein as the "Site" located in the City of Santa Ana ("City").
B. Pursuant to the California Environmental Quality Act (Public Resources
Code § 21000, et seq.) ("CEQA") the City Council of the City of Santa Ana ("Council')
certified Environmental Impact Report ("Final EIR") No. 2006-02 for Transit Zoning Code
(SD 84A and SD 84B) and the development of that certain property identified in the DDA
as the Site (the "Station District Project"), a copy of which is on file with the City (SCH No.
2006071100), on June 7, 2010.
C. The Council and the Agency, respectively, adopted CEQA Findings of
Fact, a Statement of Overriding Considerations, and a Mitigation Monitoring and
Reporting Program ("MMRP") in connection with approval of the DDA on June 7, 2010.
D. The DDA provided that the Site would be conveyed to the Developer and
Developer would develop the Site in phases, including the construction of affordable
housing units, as more particularly set out in the Scope of Development attached and
incorporated into the DDA.
E. On July 8, 2010, the unincorporated association "Friends of the Lacy
Historic Neighborhood" filed a Petition for Writ of Mandamus against the City and Agency
challenging the certification of the EIR and approval of the TZC, the Station District
Project and the related purchase and demolition of certain structures in the Lacy
Neighborhood in Orange County Superior Court Case No. 30-2010-00388033-CU-WM-
CXC (the "Litigation").
Exhibit 2
80A-106
F. The Parties have mutually agreed that settlement is the most efficient and
practical way to resolve the Litigation and have proposed a settlement agreement to
resolve and settle all claims related to the Litigation ("Settlement Agreement").
G. The parties now deem it in their best interests to amend and restate the
Scope of Development as set forth in the proposed First Amendment to Disposition and
Development Agreement in the form submitted herewith ("First Amendment").
H. All actions required by all applicable law with respect to the proposed First
Amendment have been taken in an appropriate and timely manner
1. The DDA as amended by the First Amendment would assist in the
alleviation or removal of blighting conditions and provide housing for low- or moderate-
income persons.
J. The Agency has adopted an Implementation Plan pursuant to CRL Section
33490, which sets forth the objective of providing housing to satisfy the needs and
desires of various constituent elements of the community.
K. The DDA as amended by the First Amendment furthers the goals of the
Agency set forth in the Implementation Plan as it will facilitate the creation of affordable
housing which will serve the residents of the neighborhood and the City.
L. The DDA as amended by the First Amendment would assist in the
alleviation or removal of blighting conditions and provide housing for low- or moderate-
income persons and would further the goals of the Implementation Plan by providing for
the development of such housing.
M. The Agency has duly considered all terms and conditions of the proposed
First Amendment and believes that the DDA as amended by the First Amendment is in
the best interests of the Agency and the City and the health, safety, and welfare of its
residents, and in accord with the public purposes and provisions of applicable State and
local law requirements.
Section 2. The foregoing recitals are true and correct and are hereby incorporated by
this reference.
Section 3. The Agency hereby finds and determines that there have been no
substantial changes proposed in the Station District Project as a result of the new Scope of
Development or the circumstances under which the Station District Project is undertaken, and
there is no new information with respect to the Project, which would require any major revisions
in the Final EIR pursuant to California Environmental Quality Act ("CEQA").
Section 4. The Agency hereby adopts the Findings of Fact and Statement of
Overriding Considerations for the Station District Project as defined in the new Scope of
Development, attached as Exhibit "A".
Section 5. The Agency hereby finds and determines that the MMRP adopted by the
Agency on June 7, 2010 remains in effect.
80A-107
Section 6. The Agency hereby finds and determines that the terms of the Settlement
Agreement do not require revisions to the Final EIR or further environmental analysis either
because the terms do not involve new significant environmental impacts or a substantial
increase in the severity of an impact, and/or have no potential to result in a direct or indirect
physical change in the environment, and/or are otherwise exempt from CEQA.
Section 7. The Agency hereby finds and determines that, based upon substantial
evidence provided in the record before it, the First Amendment is consistent with the provisions
and goals of the Implementation Plan
Section 8. The Agency hereby approves the First Amendment between the Agency
and Developer, in the form of the First Amendment.
Section 9. The Executive Director and the Agency Secretary are hereby authorized to
execute and attest the First Amendment, including any related attachments, on behalf of the
Agency. Copies of the final form of the First Amendment, when duly executed and attested,
shall be placed on file in the office of the City Clerk.
Section 10. The Executive Director (or his/her duly authorized representative) is further
authorized to implement the First Amendment and take all further actions and execute all
documents referenced therein and/or necessary and appropriate to carry out the First
Amendment. The Executive Director (or his/her duly authorized representative) is hereby
authorized to the extent necessary during the implementation of the First Amendment to make
technical or minor changes thereto after execution, as necessary to properly implement and
carry out the First Amendment, provided the changes shall not in any manner materially affect
the rights and obligations of the Agency.
Section 11. The Agency Secretary shall certify to the adoption of this Resolution.
8OA-108
ADOPTED this day of , 2011.
Carlos Bustamante
Acting Chair
APPROVED AS TO FORM:
By:
Joseph Straka
Interim General Counsel
AYES:
NOES:
ABSTAIN:
NOT PRESENT:
Boardmembers:
Boardmembers:
Boardmembers:
Boardmembers:
CERTIFICATION OF ATTESTATION AND ORIGINALITY
I, Maria D. Huizar, Secretary of the Agency, do hereby attest to and certify the attached
Resolution No. 2011- to be the original resolution adopted by the Community
Redevelopment Agency of the City of Santa Ana on , 2011.
Date:
Secretary, Community Redevelopment Agency
80A-109
REVISED STATION
DISTRICT PROJECT AND
"FRIENDS OF LACY"
SETTLEMENT
AGREEMENT
Findings of Fact/
Statement of Overriding Considerations
The City of Santa Ana
Community Redevelopment Agency
20 Civic Center Plaza M20
PO Box 1988
Santa Ana, California 92702
ExhibitA
April 18, 2011
8OA-110
8OA-111
Chapter 1 Introduction
Contents
CHAPTT3R 1 Introduction ............................................................................................................1-1
CHAPTER2 CEQA Findings ......................................................................................................2-1
2.1 Introduction ..................................................................................................................... 2-1
CHAPTER 3 Findings Regarding Project Alternatives ............................................................... 3-1
3.1 Introduction ................................................................................................................... .. 3-1
3.2 Project Objectives ......................................................................................................... ..3-1
3.3 Selection of Alternatives .............................................................................................. .. 3-2
3.4 Project Alternative Findings ........................................................................................ .. 3-2
3.4.1 Findings on Alternatives to the Proposed Transit Zoning Code
Analyzed in the Draft EIR ........................................................................... .. 3-2
3.4.2 Findings on Alternatives to the Proposed Transit Zoning Code
Analyzed in the Draft EIR ........................................................................... .. 3-9
3.4.3 Findings on Alternatives that were Considered but Eliminated
from Detailed Analysis in the Draft EIR ................................................... 3-14
3.4.4 Additional Findings ....................................................................................... 3-16
CHAPTI,R 4 Findings on the Settlement Agreement and the Revised Station District
Project ..................................................................................................................... 4-1
4.1 Introduction ..................................................................................................................... 4-1
4.2 Previously Approved Station District Project ............................................................ 4-1
4.3 Revised Station District Project .................................................................................... 4-1
4.4 Other Settlement Agreement terms ............................................................................. 4-2
4.5 Finding On Revised Station District Project .............................................................. 4-3
4.6 Findings On Other Settlement Agreement Terms .................................................... 4-3
4.7 Other Related Findings .................................................................................................. 4-4
CHAPTER 5 Statement of Overriding Considerations ............................................................... 5-5
5.1 Introduction ..................................................................................................................... 5-5
5.2 Unavoidable Significant Adverse Impacts ................................................................... 5-5
5.3 Overriding Considerations ............................................................................................ 5-8
Table
Table 1-1 Summary of Transit Zoning Code Potential Net Change .................................................................1-3
Table 2-1 CEQA Findings ............................................................................................................................................. 2-3
Table 3-1 Alternative 2 and Proposed Transit Zoning Code (SD 84) Characteristics ................................. 3-4
Table 3-2 Alternative 3 and Proposed Transit Zoning Code (SD 84) Characteristics ................................. 3-7
Table 4-1 Properties to Be Rehabilitated/Demolished Under the Revised Station District
Project ............................................................................................................................................................... 4 2
Revised Station District Project and FOL Settlement Agreement Findings of FacVStatement of Overriding
Considerations
8OA-112
8OA-113
Chapter I Introduction
CHAPTER 1 Introduction
On June 7, 2010, the City of Santa Ana ("City") certified an Environmental Impact Report (EIR) for the
Transit Zoning Code (SD 84) and the development of certain properties owned by the Community
Redevelopment Agency of the City of Santa Ana ("Agency") in the Station District (the "Station District
Project"), in compliance with the requirements of the California Environmental Quality Act (CEQA)
(Public Resources Code section 21000 et seq.). The Agency has discretionary approval power over the
Station District Project and is, therefore, a Responsible Agency under CEQA. As such, prior to reaching
a decision on Transit Zoning Code ("TZC") and Station District project, both the City and the Agency
considered the environmental effects of the project as shown in the EIR and adopted specific findings.
On July 8, 2010, the unincorporated association "Friends of the Lacy Historic Neighborhood" filed a
Petition for Writ of Mandamus against the City and Agency challenging the certification of the EIR and
approval of the TZC, the Station District Project and the related purchase and demolition of certain
structures in the Lacy Neighborhood in Orange County= Superior Court Case No. 30-2010-00388033-
CU-WM-CXC (the "Litigation"). On April 18, 2011, the parties to the litigation entered into a
Settlement Agreement to resolve and settle all claims related to the Litigation. The Settlement
Agreement relates to and affects the development of the Station District Project, also referred to herein
as the "Developer Project."
As further discussed in Chapter 4, the Settlement Agreement does not result in any substantial changes to
the Station District Project or the circumstances under which the Station District Project is undertaken
that would require any major revisions in the Final EIR, and there is no new information with respect to
the Project that would require such revisions. Additionally, no other terms of the Settlement Agreement
would require revisions to the Final EIR or further environmental analysis because the terms do not
involve new significant environmental impacts or a substantial increase in the severity of an impact,
and/or have no potential to result in a direct or indirect physical change in the environment, and/or are
otherwise exempt from CEQA.
Therefore, this document presents the Findings of Fact and Statement of Overriding Considerations that
were adopted by the City and the Agency pursuant to the requirements of Public Resources Code
Sections 21002.1(b) and (d), 21081 and 21081.5 and Sections 15091, 15093, and 15096, respectively, of
the State Guidelines for the Implementation of CEQA (CEQA Guidelines) on June 7, 2010. All of these
Findings remain in effect as they apply to the Transit Zoning Code and apply equally to the modified
Station District Project as they did before adoption of the modifications.
This document provides specific additional Findings related to the modified Station District Project and
the Settlement Agreement in Chapter 4.
This document is organized as follows:
Chapter 1 Introduction to the Findings of Fact and Statement of Overriding Considerations.
Chapter 2 Presents the CEQA Findings of the Environmental Impact Report (EIR),
including the identified significant impacts.
Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 1-1
Considerations 8OA-114
Chapter 1 Introduction
Chapter 3 Presents the alternatives to the project as originally proposed and evaluates them in
relation to the findings contained in Section 15091(a)(3) of the CEQA Guidelines.
The Agency must consider and make findings regarding alternatives when a project
would involve environmental impacts that cannot be reduced to a less-than-
significant level, or cannot be substantially reduced, by proposed mitigation
measures.
Chapter 4 Presents Findings related to the modified Station District Project and the
Settlement Agreement.
Chapter 5 Presents a Statement of Overriding Considerations that is required in accordance
with Section 15093 of the CEQA Guidelines for significant impacts of the Project
that cannot be mitigated to a less-than-significant level.
The Transit Zoning Code project area is located in the central urban core of the City of Santa Ana and
comprises over 100 blocks and 450 acres. The project area is located in the area west of Interstate 5,
north of First Street, and between Grand Avenue and Flower Street and south of Civic Center Drive in
the City of Santa Ana in Orange County, California.
The Transit Zoning Code provides new zoning for all of the properties contained within its boundary
with the exception of those properties zoned M1-Light Industrial or M2-Heavy Industrial. These M1
and M2 properties would retain their existing zoning, but would be covered by an overlay zone that
allows for the option of future mixed-use development to be exercised at the discretion of the property
owner. The Transit Zoning Code provides for the integration of new infill development into existing
neighborhoods, allows for the reuse of existing buildings, supports mixed-use development, provides a
transit-supportive, pedestrian-oriented development framework to reduce vehicle trips, reduce
greenhouse gas emissions, and support the addition of new transit infrastructure, and provides an
economic development stimulus.
Within the boundary of the Transit Zoning Code, the Agency owns forty-nine parcels comprising
approximately seven noncontiguous acres. The Agency/City is pursuing the potential acquisition of
twenty additional properties within the immediate vicinity of the forty-nine parcels mentioned above for
the purposes of completing the assemblage of properties on those blocks in which the Agency already
has majority ownership, as well as to secure property to provide for additional open space. The
acquisition of these additional properties may lead to demolition and/or relocation of existing structures,
as well as the potential relocation of any existing residents.
The Agency and the Related Companies of California, LLC and Griffin Realty Corporation, a California
Corporation (the Developer) propose to redevelop these properties. The Developer concept for these
properties includes the development of a maximum of 155 rental units and a maximum of 65 for-sale
unitsa total of 220 new residential units (the Developer Project). A component of this residential
development will be affordable pursuant to the County of Orange's criteria for low-to-moderate income
housing. The City/Agency is also pursuing the addition of new public open space that could include a
public park, a public tot lot, and a 10,000 square foot community building. The redevelopment of these
properties requires the demolition of approximately 30,243 square feet of building area, on fifteen
Agency-owned properties.
1-2 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-115 Considerations
Chapter 1 Introduction
The City will amend the current General Plan to permit these new land uses and amend the Zoning Code
to establish development standards that implement the project. These amendments will allow the City to
provide a framework for the development of compact, transit-oriented development that contains a mix
of residential, commercial, and professional uses in order to address the City's and the region's goals of
providing sites for housing in already urbanized locations that are adjacent to transit, thereby reducing
vehicle trips, stimulating investment in underutilized land, and improving the jobs/housing balance
within the City. This will lead to potential development of approximately 4,075 residential units,
387,000 sf of retail development, and an additional 15.5 acres of open space within the City. Adoption of
this project would allow the City to consider subsequent actions consistent with these updates in the
General Plan and Land Use designations. Table 3-1 (Summary of Transit Zoning Code [SD84A and
SD8413] Development Potential) lists the overall potential net change that would occur as a result of the
project area.
In terms of net development, the Transit Zoning Code would allow for the potential development of
approximately 351,000 square feet (so of retail development and the addition of new open space within
the City. Creation of this Transit Zoning Code area would allow the City to consider subsequent actions
consistent with these updates. Table 1-1 (Summary of Transit Zoning Code Potential Net Change) lists
the overall potential net change that could occur as a result of any new construction built pursuant to the
standards contained within the Transit Zoning Code.
Table I -I
Land Use Type Summary of Tran
Potential Gross Development sit Zoning Code Potential Net Change
Exisfing Uses to be Converted `Potential Net Development
Residential (units) 4,272 197 4,075
Retail (so 693,00 306,00 387,000
Industrial (so 90,000 1,080,000 (990,000)
Commercial (so 0 124,000 (124,000)
Civic (st) 8,000 29,000 (21,000)
Open Space (so 680,000 0 680,000
Surface Parking Lot (so 67,000 1,839,00 (1,772,000)
The key procedural actions related to the CEQA process for the Transit Zoning Code and the Developer
Project include:
¦ Circulate Initial Study/Notice of Preparation (30 days) July 20, 2006-August 22, 2006
¦ Filed NOC and Circulated Draft EIR February 2, 2010
¦ Conducted Scoping Meeting at February 22, 2010 Planning Commission Meeting
¦ Re-Circulated Alternatives Section/ extended DEIR review period, February 24, 2010- April 12,
2010
¦ Conducted Scoping Meeting at March 22, 2010 Planning Commission Meeting
Transit Zoning Code (SD 84) EIR Findings of FatlyKel J gerriding Considerations 1-3
8OA-117
Chapter 2 CEQA Findings
CHAPTER 2 CEQA Findings
2.1 INTRODUCTION
This chapter presents the potential impacts that were identified in the EIR and the findings that are
required in accordance with Section 15091 of the CEQA Guidelines. The possible findings for each
significant and/or potentially significant adverse impact are as follows:
(1) Changes or alterations have been required in, or incorporated into, the project which avoid or
substantially lessen the significant environmental effect as identified in the EIR ("Finding 1").
(2) Such changes or alterations are within the responsibility and jurisdiction of another public agency
and not the agency making the fmding. Such changes have been adopted by such other agency or
can and should be adopted by such other agency ("Finding 2").
(3) Specific economic, social, or other considerations, including provision of employment
opportunities for highly trained workers, make infeasible the mitigation measures or project
alternatives in the EIR ("Finding 3").
CEQA requires that a Responsible Agency adopt mitigation measures or alternatives, where feasible, to
avoid or substantially reduce significant environmental impacts that would otherwise occur as a result of
a project. A Responsible Agency has responsibility for mitigating or avoiding only the direct or indirect
environmental effects of those parts of the project which it decides to carry out, finance or approve
(State CEQA Guidelines §15096(8)[1]). Project modification or alternatives are not required, however,
where they are infeasible or where the responsibility for modifying the project lies with some other
agency (State CEQA Guidelines §15091(a)[2],[3]). Public Resources Code Section 21061.1 defines
"feasible" to mean "capable of being accomplished in a successful manner within a reasonable period of
time, taking into account economic, environmental, social, and technological factors." State CEQA
Guidelines Section 15364 adds another factor: "legal" considerations. (See also Cititiens of Goleta Valley v.
Board of Supervisors [Goleta 11 [1990] 52 Cal.3d 553, 565 [276 Cal. Rptr. 410].)
Only after fully complying with the findings requirement can an agency adopt a Statement of Overriding
Considerations (Cititiens forQuality Growth v. City of Mount Shasta [1988] 198 Cal.App.3d 433, 442, 445 [243
Cal. Rptr. 727]). CEQA requires the Responsible Agency to state in writing the specific rationale to
support its actions based on the Final EIR and/or information in the record. This written statement is
known as the Statement of Overriding Considerations. The Statement of Overriding Considerations
provides the information that demonstrates the decision making body of the Responsible Agency has
weighed the benefits of the project against its unavoidable adverse effects in determining whether to
approve the project. If the benefits of the project outweigh the unavoidable adverse environmental
effects, the adverse effects may be considered "acceptable."
The California Supreme Court has stated that, "the wisdom of approving any development project, a
delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local
officials and their constituents who are responsible for such decisions. The law as we interpret and apply
it simply requires that those decisions be informed, and therefore balanced" (Goleta II, 52 Cal.3d 553, 576
[276 Cal. Rptr. 401]).
Revised Station District Project and FOL Settlement Agreement Findings of FaGVStatement of Overriding 2_1
Considerations 8OA-118
Chapter 2 CEQA Findings
Table 2-1 (CEQA Findings) summarizes the potentially significant impacts of the EIR that were reduced
to less-than-significant levels with mitigation as well as the significant and unavoidable impacts of the
Transit Zoning Code (SD No. 84) and the Developer Project (collectively, the Project).
Additional facts that support the findings are set forth in the Final EIR, the staff reports to the Planning
Commission and City Council, and the record of proceedings. Key discussions that support the Findings
from the Final EIR are provided in "Evidence Supporting Finding." However, other evidence may be
contained in the overall record of the project to further support the finding.
The documents and other materials that constitute the record of proceedings on which the Project
findings are based are located at the City of Santa Ana Planning and Building Agency, 20 Civic Center
Plaza, M-20, Santa Ana, California 92702. The custodian for these documents is Lucy Linnaus. This
information is provided in compliance with Public Resources Code §21081.6(a)(2) and CEQA Guidelines
§15091(e).
2_2 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-119 Considerations
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8OA-172
8OA-173
Chapter 3 Findings Regarding Project Alternatives
CHAPTER 3 Findings Regarding Project
Alternatives
3.1 INTRODUCTION
The EIR prepared for Transit Zoning Code considered six (6) alternatives to the Project as it was
proposed. Pursuant to Section 15126.6(a) of the CEQA Guidelines, the primary intent of an alternatives
evaluation is to "describe a range of reasonable alternatives to the project, or to the location of the
project, which would feasibly attain most of the basic objectives of the project but would avoid or
substantially lessen any of the significant effects of the project, and evaluate the comparative merits of
the alternatives."
This chapter describes the project objectives and design criteria used to develop and evaluate project
alternatives presented in the Draft EIR. A description of the alternatives compared to the Project and the
findings regarding the feasibility of adopting the described alternatives are presented below.
3.2 PROJECT OBJECTIVES
The project objectives of the Transit Zoning Code are to:
¦ Provide zoning for the integration of new infill development into existing neighborhoods
¦ Provide for a range of housing options, including affordable housing
¦ Allow for the reuse of existing structures
¦ Allow the development of the Agency properties
¦ Provide a transit-supportive, pedestrian-oriented development framework to support the addition
of new transit infrastructure
¦ Preserve and reinforce the existing character and pedestrian nature of the City by strengthening
urban form through improved development and design standards
¦ Encourage alternative modes of transportation, including the rail system that connects San Diego
to Los Angeles
The project objectives of the Developer Project for the Agency-owned properties are to:
¦ Redevelop all of the Agency-owned properties
¦ Provide new affordable housing for families in furtherance of the City's affordable housing goals
established in the Housing Element, the Implementation Plan for the Santa Ana Merged
Redevelopment Project Area, and the City of Santa Ana Consolidated Plan
¦ Enhance the streetscape and urban form of the area, particularly along Santa Ana Boulevard, with
the construction of new buildings that meet the standards contained in the Transit Zoning Code
and that support future transit planning
¦ Eliminate blight
Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 3-1
Considerations 8OA-174
Chapter 3 Findings Regarding Project Alternatives
¦ Provide additional public open space and facilitate joint use arrangement with SAUSD for a new
community center
¦ Provide an economically viable redevelopment scenario for the Agency-owned properties
3.3 SELECTION OF ALTERNATIVES
The Draft EIR and Recirculated Draft EIR evaluated six (6) alternatives, including the No Project/No
Development alternative, in Chapter 5.0. This evaluation compared the environmental advantages and
disadvantages of each alternative to the Project. Alternative 1, 2, and 3 are primarily designed to address
alternatives to the Transit Zoning Code as a whole. Alternatives 4, 5, and 6 present alternatives to the
Developer Project, and under each of these Alternatives, the Transit Zoning Code would remain the
unchanged.
The range of feasible alternatives was selected and discussed in a manner to foster meaningful public
participation and informed decision-making. Among the factors that were taken into account when
considering the feasibility of alternatives (as described in CEQA Guidelines Section 15126.6[fJ[1]) were
environmental impacts, economic viability, availability of infrastructure, regulatory limitations,
jurisdictional boundaries, and attainment of project objectives. As stated in Section 15126.6(a) of the
CEQA Guidelines, an EIR need not consider an alternative whose effects could not be reasonably
identified, whose implementation is remote or speculative, or one that would not achieve the basic
project objectives. The analysis includes sufficient information about each alternative to provide
meaningful evaluation, analysis, and comparison with the Project.
It should be noted that the Alternatives section of the DEIR was re-circulated due to the addition of
three new alternatives (Alternatives 4, 5 and 6) which would lessen the impacts related to historic
structures located within the Developer Project area. The re-circulation of the Alternatives section
concurrently extended the public comment period on the DEIR.
3.4 PROJECT ALTERNATIVE FINDINGS
3.4.1 Findings on Alternatives to the Proposed Transit Zoning Code
Analyzed in the Draft EIR
Alternative 1, 2, and 3 are primarily designed to address alternatives to the Transit Zoning Code as a
whole. The Agency's findings on each alternative and the rationale behind each finding are set forth
below.
¦ Alternative 1: No Project,/No Development Alternative
This alternative assumes a continuation of the City's existing General Plan and zoning designations to
guide future growth and development within the Transit Zoning Code project area. The impacts of this
alternative were analyzed under a maximum buildout scenario within the Transit Zoning Code area with
the current allowed land uses and development standards designated in the existing General Plan and
zoning designations. In addition, this alternative assumes that the proposed Developer Project would not
go forward on the Agency-owned properties. Maintaining the existing General Plan and zoning
3.2 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-175 Considerations
Chapter 3 Findings Regarding Project Alternatives
designations throughout the Transit Zoning Code area would result in impacts that are similar, for the
most part, to those of the proposed Transit Zoning Code, although many of the significant impacts
associated with aesthetics, air quality, climate change, and noise/vibration would be reduced as compared
to the Proposed Project. A number of impacts would be greater under the No Project/No Development
Alternative than under the proposed project due to the absence of mitigation measures that would be
adopted as part of the proposed project, e.g., impacts from increased light and glare. Additionally,
because the City's existing General Plan and zoning designations do not emphasize alternative modes of
transportation and do not contain the development framework necessary to support the transit-oriented
development, impacts to traffic/ transportation would be greater under the No Project/No Development
Alternative than under the proposed Transit Zoning Code.
Findings
The Agency hereby finds that specific economic, legal, social, technological, or other considerations
make the adoption of the No Project/No Development Alternative infeasible.
Although Alternative 1 would moderately reduce some of the proposed project's significant impacts, it
would not achieve most of the basic project objectives. Specifically, Alternative 1 would not provide
zoning for the integration of new infill development into existing neighborhoods. It would not provide
for a range of housing options, including affordable housing. It would not provide for the reuse of
existing structures, allow the development of the Agency-owned properties, or strengthening urban form
through improved development and design standards. Moreover, unlike the proposed project, it would
not provide a transit-supportive, pedestrian-oriented development framework to support transit-oriented
development, or encourage alternative modes of transportation.
As a result of its inability to meet the basic project objectives, the No Project/No Development
Alternative would eliminate the opportunity to provide the numerous benefits of the proposed project,
as set forth in the Statement of Overriding Considerations, including land use development that provides
a better market for public transit, consistent with the goals of SB 375, California's Sustainable
Communities and Climate Protection Act; providing strategic areas for infill, pedestrian friendly
environments, and focusing housing and employment growth in transit-accessible locations through
transit-oriented developments, consistent with the Southern California Association of Governments
(SCAG) 2008 Regional Transportation Plan: Making the Connections (RTP), and SCAG's 2008 Regional
Comprehensive Plan: He ping Communities Acbieve a Sustainable Future (RCP) land use goals; and providing
opportunities to meet the City of Santa Ana's share of the Regional Housing Needs Allocation (RHNA)
for 2006-2014.
Additionally, Alternative 1 would not further the established Goals and Policies of the City's General
Plan to the same extent as the proposed Transit Zoning Code. In particular, it would not further
Housing Element Policies HE-2.1, 2.2, 2.3, 2.4, which support the goal of providing a diversity of quality
housing, affordability levels, and living experiences that accommodate Santa Ana's residents and
workforce of all household types, income levels, and age groups to foster an inclusive community to the
same extent as the proposed Transit Zoning Code. Nor would it further Land Use Element policies LE-
1.2, 1.3, 1.5, 1.6, 1.7, and 1.9, which promote a balance of land uses to address basic community needs,
LE-2.4, 2.6, 2.8, 2.9, and 2.10, which promote land uses which enhance the City's economic and fiscal
Transit Zoning Code (SD 84) EIR Findings of FagBaKe &erriding Considerations 3-3
Chapter 3 Findings Regarding Project Alternatives
viability, LE-4.3, 4.4, and 4.5, which support the goal of protecting and enhancing developments sites
and districts which are unique community assets that enhance the quality of life, or LE-5.1, 5.2, 5.5, 5.7,
5.9, 5.10, and 5.11, which ensure that the impacts of development are mitigated to the same extent as the
proposed Transit Zoning Code. (See Land Use Element; Draft EIR Table 4.7-3.) Similarly, it would not
further the goals of the Urban Design Element (Goals 1-7) to the same extent as the proposed Transit
Zoning Code. (See Urban Design Element; Draft EIR Table 4.7-3.) Moreover, the integrated and
cohesive development standards that are proposed for the Transit Zoning Code area would not be
implemented.
Lastly, Alternative 1 would increase impacts on transportation as a result of lack of emphasis on
alternative modes of transportation in the current General Plan and zoning designations and the lack of a
development framework to support transit-oriented development. For these reasons, the Agency rejects
Alternative 1 as infeasible.
¦ Alternative 2: Overall Reduced Density
The Overall Reduced Density Alternative would reduce the intensity of all anticipated land uses within
the Transit Zoning Code (SD 84) area by 25 percent. In general, this alternative would reduce the
number of residences, including affordable housing, and reduce employment opportunities as a result of
less commercial uses in the area. Specifically, this alternative would result in approximately 1,019 fewer
residential units, and 96,750 fewer square feet of retail within the Transit Zoning Code (SD 84) area.
Specific development characteristics that would be allowed under this alternative relative to the proposed
Transit Zoning Code (SD 84) are specified in Table 3-1 (Alternative 2 and Proposed Transit Zoning
Code [SD 84] Characteristics).
Table 3-1 Alte
Land Use Type rnative 2 and Prop
Attemative 2 osed Transit Zoning Code (SD 84) C
Transit Zoning Code (SD 84) haracteristics
Werence
Residential (units) 3,056 4,075 (1,019)
Retail (so 290,250 387,000 (96,750)
Industrial (so (990,000) (990,000) 0
Commercial (so (124,000) (124,000) 0
Civic (so (21,000) (21,000) 0
Green (so 680,000 680,000 0
Parking (1,772,000) (1,772,000) 0
SOURCE: PBS&J 2010
Findings
The Agency hereby finds that specific economic, legal, social, technological, or other considerations
make the adoption of this alternative infeasible.
Although Alternative 2 would somewhat reduce the significant impacts of the proposed Transit Zoning
Code (SD 84) on aesthetics, climate change, and transportation, it would not reduce any of those impacts
3-4 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-1 77 Considerations
Chapter 3 Findings Regarding Project Alternatives
to below the level of significance. In addition, Alternative 2 would not meet the housing and transit
objectives of the Project to the same extent as the proposed project.
Alternative 2 would reduce housing by 25 percent, from 4,075 to 3,056 residential units. The potential
number of affordable housing units would also be reduced by 25 percent. Providing 3,056 new units
would not meet Santa Ana's Regional Housing Needs Assessment for 2006-2014, which calls for 3,393
total units, 1,248 of which must be affordable for low, very low, and extremely low income households.
The City of Santa Ana has a great need for affordable housing; sixty percent of the households in Santa
Ana have low, very low, and extremely low income. (City of Santa Ana General Plan Draft Housing
Element 2006-2014, Appendix A, p. A-10.) Goal 2 of the Housing Element is to "provide a diversity of
quality housing, affordability levels, and living experiences that accommodate Santa Ana's residents and
workforce of all household types, income levels, and age groups to foster an inclusive community."
Alternative 2 would not meet this goal, or the following Housing Element policies, to the same extent as
the proposed project:
HE-2.3 Rental Housing. Encourage the construction of rental housing for Santa Ana's
residents and workforce, including a commitment to very low, low, and moderate
income residents and moderate income Santa Ana workers.
HE-2.4 Diversity of Housing Types. Facilitate and encourage a diversity and range in types,
prices, and sizes of housing, including single family homes, apartments, town
homes, mixed/multiuse housing, transit-oriented developments, and live/work
housing.
Alternative 2 would not meet the project's transit oriented objectives to the same extent as the proposed
project. Reducing the amount of housing and retail space would result in a failure to fully emphasize the
use of the Santa Ana Regional Transportation Center (SARTC) for City residents. A mixed-use urban
and transit-oriented neighborhood requires a critical mass and balance between residential and non-
residential uses in order to succeed. (Draft EIR, Section 5.5.) Alternative 2 would not provide that critical
mass and balance.
In addition, it would not implement established SCAG RTP or RCP policies, or General Plan Land Use
Element policies 1.2, 1.3, 1.5, 1.6, 1.7, 1.9, 2.4, 2.6, 2.8, 2.9, 2.10, 4.3, 4.4, 4.5, 5.1, 5.2, 5.5, 5.7, 5.9, 5.10,
and 5.11, or Urban Land Use Element Goals 1 through 7 to the same extent as the proposed project.
(See Land Use Element; Urban Design Element; Draft EIR Table 4.7-3.) Specifically, the Alternative 2
would not meet the following SCAG RTP Land Use Goals to the same extent as the proposed project:
¦ Create mixed-use districts or "complete communities" in strategic growth areas through a
concentration of activities with housing, employment, and a mix of retail and services, located in
close proximity to each other. Focusing a mix of land uses in strategic growth areas creates
complete communities wherein most daily needs can be met within a short distance of home,
providing residents with the opportunity to patronize their local area and run daily errands by
walking or cycling rather traveling by automobile.
¦ Intensify nodes along corridors with people-scaled, mixed-use developments. Many existing
corridors lack the residential and commercial concentration to adequately support non-auto transit
uses, without which the existing transit system cannot fully realize its potential for accommodating
additional trips and relieving the transportation system. These nodes along the corridor also create
Transit Zoning Code (SD 84) EIR Findings of Fatbat? =eitaerriding Considerations 3-5
Chapter 3 Findings Regarding Project Alternatives
vibrant, walkable communities with localized access to amenities, further reducing reliance on the
automobile for a variety of trips.
¦ Pedestrian-friendly environments and more compact development patterns in close proximity to
transit serve to support and improve transit use and ridership. Focusing housing and employment
growth in transit-accessible locations through this transit-oriented development approach will
serve to reduce auto use and support more multimodal travel behavior.
Further, the large reduction in retail space would significantly reduce potential new employment
opportunities and the economic benefits that accompany such opportunities, as compared to the
proposed Transit Zoning Code. It would also reduce the amount of potential tax revenue that the City
could use to reinvest and stimulate economic development.
On balance, reducing the development intensity by 25 percent under Alternative 2 would not provide any
significant environmental benefits that outweigh the extent to which it would inhibit the City's ability to
meet regional housing needs and its goal of establishing a transit-supportive, pedestrian-oriented
development framework to support the new transit-infrastructure.
For these reasons, the Agency rejects Alternative 2 as infeasible.
¦ Alternative 3: Low-Rise Project
This alternative is a low- to mid-rise version of the Transit Zoning Code (SD 84), which would limit
building heights in the Downtown and Transit Village Districts to four stories. Under Alternative 3, the
Downtown and Transit Village Districts would be redeveloped according to the standards of the First
Street Corridor District. The remaining districts of the Transit Zoning Code (SD 84) area would be
developed consistent with the proposed project. This would result in 2,049 fewer residential units and
36,000 fewer sf of retail uses. Because this alternative would allow building heights that are similar to
existing buildings in the area, the alternative would ensure future development would have less
shade/shadow impacts, as well as generate fewer automobile trips.
The anticipated mix of land uses would therefore be different than the proposed project, and a less
residential based area would result. Specific development characteristics that would be allowed under this
alternative relative to the proposed Transit Zoning Code (SD 84) are specified in Table 3-2 (Alternative 3
and Proposed Transit Zoning Code [SD 84] Characteristics).
3-6 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-179 Considerations
Chapter 3 Findings Regarding Project Alternatives
Table 3-2 Alte
Land Use Type rnative 3 and Prop
Altema0ve 3 osed Transit Zoning Code (SD 84) C
Trans# Zoning Code (SD 84) haracteristics
DiTference
Residential (units) 2,026 4,075 (2,049)
Retail (sfl 351,000 387,000 (36,000)
Industrial (sfl (990,000) (990,000) 0
Commercial (sfl (124,000) (124,000) 0
Civic (sfl (21,000) (21,000) 0
Green (sfl 680,000 680,000 0
Parking (1,534,000) (1,772,000) (238,000)
SOURCE: PBS&J 2010
Findings
The Agency hereby finds that specific economic, legal, social, technological, or other considerations
make the adoption of Alternative 3 infeasible.
Although Alternative 3 would reduce a significant and unavoidable impact of the proposed project to
aesthetics (shading and shadows) to a less than significant level, it would restrict development within the
City to low- to mid-rise development, which would not meet project objectives to the same extent as the
proposed project.
Specifically, this restriction would require a reduction in housing (including affordable housing) from
4,075 units to 2,026 units, which would not meet Santa Ana's Regional Housing Needs Assessment for
2006-2014, which call for 3,393 units, 1,248 of which must be affordable for low, very low, and extremely
low income households. The City of Santa Ana has a great need for affordable housing - sixty percent of
the households in Santa Ana have low, very low, and extremely low incomes. (City of Santa Ana General
Plan Draft Housing Element, Appendix A, p. A-10.) Goal 2 of the Housing Element is to "provide a
diversity of quality housing, affordability levels, and living experiences that accommodate Santa Ana's
residents and workforce of all household types, income levels, and age groups to foster an inclusive
community." Alternative 3 would not meet this goal to the same extent as the proposed project.
Similarly, it would not meet Housing Element policy 2.2, set forth below, to the same extent as the
proposed project:
HE-2.2 District Centers. Create high intensity, mixed-use urban villages and 24-hour
pedestrian-oriented experiences that support the mid-to high-rise office centers,
commercial activity, and cultural activities in the varied District Centers.
Alternative 3 would also fail to implement the following Housing Element policies to the same extent as
the proposed project:
HE-2.1 Downtown. Strengthen Santa Ana's core as a vibrant mixed-use and mixed-income
environment by capitalizing on the government center, arts district, and historic
downtown and facilitating transit-oriented development and diverse
neighborhoods.
Transit Zoning Code (SD 84) EIR Findings of Fa $ a =eitgderriding Considerations 3_7
Chapter 3 Findings Regarding Project Alternatives
HE-2.3 Rental Housing. Encourage the construction of rental housing for Santa Ana's
residents and workforce, including a commitment to very low, low, and moderate
income residents and moderate income Santa Ana workers.
HE-2.4 Diversity of Housing Types. Facilitate and encourage a diversity and range in types,
prices, and sizes of housing, including single family homes, apartments, town
homes, mixed/multiuse housing, transit-oriented developments, and live/work
housing.
Alternative 3 would not meet the project's transit oriented objectives to the same extent as the proposed
project. Reducing the amount of housing and retail space would result in a failure to fully emphasize the
use of the SARTC for City residents. A mixed-use urban and transit-oriented neighborhood requires a
critical mass and balance between residential and non-residential uses. (Draft EIR, Section 5.5.)
Alternative 3 would not provide that critical mass and balance.
Reducing housing and retail opportunities would result in a failure to fully benefit from the investment in
the expansion of the transit system and would not adequately target growth in housing, employment, and
commercial development within walking distance of the existing and planned transit stations. In addition,
Alternative 3 would not implement SCAG RTP and RCP policies or established General Plan Land Use
Element policies 1.2, 1.3, 1.5, 1.6, 1.7, 1.9, 2.4, 2.6, 2.8, 2.9, 2.10, 4.3, 4.4, 4.5, 5.1, 5.2, 5.5, 5.7, 5.9, 5.10,
and 5.11, or Urban Land Use Element Goals 1 through 7 to the extent that the proposed project would.
(See Land Use Element; Urban Design Element; Draft EIR Table 4.7-3.) Specifically, Alternative 3
would not meet the following SCAG RTP Land Use Goals to the same extent as the proposed project:
¦ Create mixed-use districts or "complete communities" in strategic growth areas through a
concentration of activities with housing, employment, and a mix of retail and services, located in
close proximity to each other. Focusing a mix of land uses in strategic growth areas creates
complete communities wherein most daily needs can be met within a short distance of home,
providing residents with the opportunity to patronize their local area and run daily errands by
walking or cycling rather traveling by automobile.
¦ Intensify nodes along corridors with people-scaled, mixed-use developments. Many existing
corridors lack the residential and commercial concentration to adequately support non-auto transit
uses, without which the existing transit system cannot fully realize its potential for accommodating
additional trips and relieving the transportation system. These nodes along the corridor also create
vibrant, walkable communities with localized access to amenities, further reducing reliance on the
automobile for a variety of trips.
¦ Pedestrian-friendly environments and more compact development patterns in close proximity to
transit serve to support and improve transit use and ridership. Focusing housing and employment
growth in transit-accessible locations through this transit-oriented development approach will
serve to reduce auto use and support more multimodal travel behavior.
Additionally, the reduction in retail space under Alternative 3 would reduce potential new employment
opportunities, and the economic benefits that accompany such opportunities, as compared to the
proposed project. It would also reduce the amount of potential tax revenue that the City could use to
reinvest and stimulate economic development.
3.8 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-181 Considerations
Chapter 3 Findings Regarding Project Alternatives
On balance, the reduction in impacts to shading and shadows provided by this alternative do not
outweigh the costs associated with the loss of housing and retail opportunities that would also occur
under this alternative.
For these reasons, the Agency rejects Alternative 3 as infeasible.
3.4.2 Findings on Alternatives to the Proposed Transit Zoning Code
Analyzed in the Draft EIR
Alternatives 4, 5, and 6, described below, present alternatives to the proposed Developer Project. Under
each of these Alternatives, the proposed Transit Zoning Code would remain the unchanged. The
Agency's findings on each alternative and the rationale behind each fording are set forth below.
¦ Alternative 4: No Demolition of Agency Properties/Rehabilitate in Place
Description
This alternative would eliminate the demolition of structures on the fourteen parcels within the Station
District currently owned by the City of Santa Ana Redevelopment Agency that were slated for
demolition under the proposed Developer Project (see Figure 5-1 [Demolitions]) and instead require that
those properties be retained and rehabilitated in their current locations. Additionally, the City/Agency
would not acquire any of the twenty parcels identified in Figure 5-2 [Potential New Santa Ana
Redevelopment Agency Acquisitions]. Upon completion of rehabilitation, the rehabilitated houses would
be offered for-sale as low or moderate income housing. The proposed Transit Zoning Code would
remain the same under this Alternative.
In total, this Alternative would provide approximately 75 rental units and approximately 24 for sale units
within the Station District, for a total of approximately 99 units. Of these, approximately 72 would be
rented to low, very-low and extremely-low income households, approximately 19 would be offered for
sale as low income units, and one would be offered for sale to those meeting the Orange County criteria
for Moderate Income. (See EIR Appendix J (Updated) [Alternatives Testing: Financial Analysis], Table 1,
Alternatives Analysis.) By contrast, approximately 124 units would be provided by the proposed
Developer Project, of which 121 would be rented to low, very-low and extremely-low income
households, and thirty two units would be offered for sale, of which six units would be offered for sale to
those meeting the Orange County criteria for Moderate Income. (Id.)
Findings
The Agency hereby finds that specific economic, legal, social, technological, or other considerations
make the adoption of this alternative infeasible.
Construction of affordable housing units is critical to meeting the City's Regional Housing Needs
Assessment (RHNA) for 2006-2014. The City's RHNA calls for 3,393 units of new residential
construction, 694 of which are to be affordable to very low income households, 574 of which are to be
affordable to low income households, and 665 to be affordable to moderate income households (EIR,
Section 4.9). Alternative 4 would provide 37 fewer units that would be affordable to very-low, low and
Transit Zoning Code (SD 84) EIR Findings of Fa baK
_eItg2erriding Considerations 3_9
Chapter 3 Findings Regarding Project Alternatives
moderate income households than the proposed Developer Project. This reduction in the number of
affordable housing units eliminates an opportunity to provide affordable housing in furtherance of
meeting the City's RHNA. It also eliminates the opportunity to provide Special Needs housing through
the Mercy House project.
Similarly, Alternative 4 does not to meet the City's policy of "maximiz[ing] affordable housing on
Agency-owned properties that is of high quality, sustainable, and available to various income levels." (See
Santa Ana Housing Element [2006-2014], Policy HE-2.8.) Nor does it go far enough to meet the City's
policy to "encourage the construction of rental housing for Santa Ana's residents and workforce,
including a commitment to very low, low and moderate income residents and moderate income Santa
Ana workers" (Policy HE-2.3) or its policy to "facilitate and encourage a diversity and range in types,
prices, and sizes of housing, including single-family homes, apartments, town homes, mixed/multiuse
housing, transit-oriented developments, and live/work housing" (Policy HE-2.4). (See Santa Ana
Housing Element [2006-2014].)
Further, the City of Santa Ana currently has a shortage of rental units appropriately sized to
accommodate families. As stated in the City's 2006-2014 Housing Element, while multiple-family
housing comprises 41% of all housing stock within the City, only 13% of multiple family and single-
family rental units have three or more bedrooms. It is estimated that 45% of all families who rent have
five or more members. This translates into a shortage of 12,000 large family rental units. The Developer
Project contains 78 two-bedroom units (two of which are manager units) and 67 three-bedroom units. In
addition, the Mercy House project would provide one three-bedroom, five-one bedroom and five two-
bedroom units (exclusive of manager's unit) of special needs housing. These units are appropriately sized
to meet Santa Ana's identified demographic needs. Implementation of Alternative 4 would not further
the City's policies relating to the need for rental housing suitable for families, nor would it achieve the
project objectives described above.
Moreover, the California Legislature has enacted Government Code section 65589.5, the "Housing
Accountability Act," which restricts the City's ability to disapprove, or require density reductions, in
certain types of residential projects. Specifically, the City may not disapprove a housing development
project for very low, low-, or moderate-income households unless it makes certain findings set forth in
Government Code section 65589.5, subsection (d). The City is unable to make any of these findings at
this time. Therefore, disapproval of the proposed Developer Project is legally infeasible.
Additionally, Alternative 4 also affects the fixed ratio of construction costs but does not commensurately
reduce construction costs. Therefore, although the total cost of this alternative to the City/Agency would
be less than the proposed Developer Project, the cost/unit would be approximately $26,000 higher than
the proposed Developer Project. This is attributable to the fact that smaller apartment projects would be
developed under this alternative, which generate a higher per unit financial gap, according to the financial
analysis prepared by Keyser Marston Associates (KMA) for the City of Santa Ana (as updated on May
22, 2010) and included in Appendix J of the EIR. This is a significantly less efficient and effective way to
spend the funds available for redevelopment of the Agency-owned parcels than the proposed Developer
Project.
3-10 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-183 Considerations
Chapter 3 Findings Regarding Project Alternatives
Further, under Alternative 4, the proposed park identified in the Developer Project would no longer be
included as a project component. The park was one element of several in the overall vision for
development of the Agency-owned properties. The selection of Alternative 4 effectively eliminates the
ability to construct a park on the block on which it is currently envisioned given that the three structures
currently located on the Agency-owned properties within that block would remain under Alternative 4,
and the City/Agency under this scenario would be precluded from acquiring any additional properties.
Further, Alternative 4 would not meet the objective of the Developer Proposal to redevelop all of the
Agency-owned properties, and, as explained above, it would not meet the objective of providing new
affordable housing for families in furtherance of the City's affordable housing goals to the same extent as
the proposed project. Also, it is unlikely that the City/Agency would be able to attract a quality developer
to undertake a small scale scattered site development such as that which would be constructed under
Alternative 4. This will seriously constrain the potential for providing economically viable
redevelopment.
In light of these considerations, the Agency rejects this alternative as infeasible.
¦ Alternative 5: No Demolition of Agency Properties/Relocate to Agency-
Owned Infill Sites/Rehabilitate in Place
Description
This alternative would eliminate the demolition on the fourteen parcels within the Station District
currently owned by the City of Santa Ana Redevelopment Agency that were slated for demolition under
the proposed Developer Project (see Figure 5-1 [Demolitions]). Instead, those properties would be
rehabilitated in place or moved to vacant lots and rehabilitated, with the exception of the property
located at 611 N. Minter Street, which would be demolished. Of the properties identified for demolition
on parcels currently owned by the Agency, and those that may potentially be acquired in the future, only
one is currently listed on the Santa Ana Register of Historical Properties-the Whitson-Powelson House
located at 501 E. Fifth Street. The remaining houses have primarily been the subject of "windshield"
surveys to determine their potential eligibility= for listing as a historic resource. (See EIR, Section 4.4 and
Appendix D.) Following a comprehensive historic survey of the properties, the City's Historic Resources
Commission would evaluate all of the structures to determine their eligibility for listing on the City's
Register of Historical Properties and would make recommendations regarding the selection of houses to
be moved and onto which sites they should be moved. Once moved and/or rehabilitated the houses
would then be offered as for-sale affordable housing. The proposed Transit Zoning Code would remain
the same under this Alternative.
In total, this Alternative would provide approximately 145 units (approximately 124 rental units and
approximately 21 for sale units) on the Agency-owned parcels within the Station District. Of these,
approximately 121 units would be rented to low, very-low and extremely-low income households. (See
EIR Appendix J [Alternatives "Testing: Financial Analysis], Table 1, Alternatives Analysis.) This is the
same number of units that would be rented to low, very-low and extremely-low income households in
the proposed Developer Project. (Id.) Alternative 5 would also offer for sale 16 low income units, one
moderate income unit and four market rate units.
Transit Zoning Code (SD 84) EIR Findings of Fact[Sd -e 640erridi ngConsiderations 3-11
Chapter 3 Findings Regarding Project Alternatives
Findings
The Agency hereby finds that specific economic, legal, social, technological, or other considerations
make the adoption of this alternative infeasible. Specifically, Alternative 5 would reduce the number of
residential units by 11 and would increase costs to the Agency by approximately $6.62 million, according
to the financial analysis prepared by Keyser Marston Associates (KMA) for the City of Santa Ana (as
updated on May 22, 2010) and included in Appendix J of the EIR. Additionally, this alternative would
cost the Agency approximately $56,800 more per unit than the proposed Developer Project, due
primarily to the substantial rehabilitation and relocation costs that would be involved in this alternative.
(See Appendix J (updated).) This represents a 39% increase in per unit costs. This is a significantly less
efficient and effective way to spend the funds available for redevelopment of the Agency-owned parcels
than the proposed Developer Project. The significant additional cost to the Agency of this Alternative
renders it economically infeasible.
Additionally, Alternative 5 does not meet the City's policy of "maximiz[ing] affordable housing on
Agency-owned properties that is of high quality, sustainable, and available to various income levels."
(Refer to Santa Ana Housing Element [2006-2014], Policy HE-2.8.) Nor does it go far enough to meet
the City's policy to "encourage the construction of rental housing for Santa Ana's residents and
workforce, including a commitment to very low, low and moderate income residents and moderate
income Santa Ana workers" (Policy HE-2.3) or its policy to "facilitate and encourage a diversity and
range in types, prices, and sizes of housing, including single-family homes, apartments, town homes,
mixed/multiuse housing, transit-oriented developments, and live/work housing." (Policy HE-2.4).
(Refer to Santa Ana Housing Element [2006-2014].)
Moreover, the California Legislature has enacted Government Code Section 65589.5, the "Housing
Accountability Act," which restricts the City's ability to disapprove, or require density reductions, in
certain types of residential projects. Specifically, the City may not disapprove a housing development
project for very low, low-, or moderate-income households unless it makes certain findings set forth in
Government Code section 65589.5, subsection (d). The City= is unable to make any of these findings at
this time. Therefore, disapproval of the proposed Developer Project is legally infeasible.
Further, under Alternative 5, the proposed park identified in the Developer Project would no longer be
included as a project component. The park was one element of several in the overall vision for
development of the Agency-owned properties. The selection of Alternative 5 effectively eliminates the
ability to construct a park on the block on which it is currently envisioned given that the three structures
currently located on the Agency-owned properties within that block would remain under Alternative 5.
Finally, Alternative 5 would not meet the objective of the Developer Proposal to redevelop all of the
Agency-owned properties. Nor would it meet the objective of providing an economically viable
redevelopment scenario for Agency-owned properties, as explained above or the objective of providing
new affordable housing for families in furtherance of the City's affordable housing goals to the same
extent as the proposed project.
In light of these considerations, the Agency rejects this alternative as infeasible
3-12 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-185 Considerations
Chapter 3 Findings Regarding Project Alternatives
¦ Alternative 6: Rehabilitate 611 N. Minter Street in Place
Description
This alternative would be identical to the proposed Developer Project, with the exception that the
bungalow court located at 611 N. Minter Street would be retained and rehabilitated. Once rehabilitated,
the units at 611 N. Minter Street would be offered for rent to very-low and extremely-low income
households. Alternative 6 would provide 88 rental units, of which 85 would be available to low, very-low
and extremely-low income households, and would provide 32 ownership units, of which six units would
be available for sale to households meeting the Orange County criteria for Moderate Income. In total,
this Alternative would provide approximately 36 fewer low, very-low and extremely-low income units
than the proposed Developer Project. (See EIR Appendix J (updated) [Alternatives Testing: Financial
Analysis], Table 1, Alternatives Analysis.)
Findings
The Agency hereby finds that specific economic, legal, social, technological, or other considerations
make the adoption of this alternative infeasible.
Specifically, as described above, construction of affordable housing units is critical to meeting the City's
RHNA for 2006-2014. The location of the 611 N. Minter Street property at the southeast corner of
Minter Street and Santa Ana Boulevard serves as one of the primary foundations of both the
architectural and engineering design of the largest component of the Developer Project. By eliminating
this property from the overall site (identified as Rental Lot 1 on Figure 3-7) it forces a significant
redesign of the multi-family development project proposed for this site and results in a significant
reduction of units, all of which would be deed-restricted for long-term affordability.
Elimination of 36 affordable housing units from the proposed Developer Project inhibits the City's
ability to meet its housing requirements. It also inhibits the City's ability to "maximize affordable housing
on Agency-owned properties that is of high quality, sustainable, and available to various income levels"
(Policy HE-2.8). (See Santa Ana Housing Element (2006-2014).) This alternative also does not go as far
to "encourage the construction of rental housing for Santa Ana's residents and workforce, including a
commitment to very low, low and moderate income residents and moderate income Santa Ana workers"
(Policy HE-2.3) or to "facilitate and encourage a diversity and range in types, prices, and sizes of housing,
including single-family homes, apartments, town homes, mixed/multiuse housing, transit-oriented
developments, and live/work housing" (Policy HE-2.4). (Id.)
In addition to creating infeasibilities due to the reduction in total affordable housing yield, the proposal
to rehabilitate the existing units contained within the 611 N. Minter Street bungalow court would not be
consistent with the policies contained in the 2006-2014 Housing Element, which identifies the need to
create rental units appropriately sized for large families. The existing bungalows at 611 N. Minter Street
are currently configured as studio units. The sleeping area is comprised of a "Murphy-style" fold-out bed
and the kitchen facilities are minimal. In addition, the property is severely deteriorated. The most likely
rehabilitation scenario, which would require the consolidation of existing units, would result in the
creation of one one-bedroom unit and six tvvo-bedroom units. This is a much less desirable unit mix than
that achieved by the Developer Project.
Transit Zoning Code (SD 84) EIR Findings of Fa ate =eit§6erriding Considerations 3_13
Chapter 3 Findings Regarding Project Alternatives
Moreover, the California Legislature has enacted Government Code section 65589.5. the "Housing
Accountability Act," which restricts the City's ability to disapprove, or require density reductions, in
certain types of residential projects. Specifically, the City may not disapprove a housing development
project for very low, low-, or moderate-income households unless it makes certain findings set forth in
Government Code section 65589.5, subsection (d). The City is unable to make any of these findings at
this time. Therefore, disapproval of the proposed Developer Project is legally infeasible.
Alternative 6 also affects the fixed ratio of construction costs but does not commensurately reduce
construction costs. Specifically, although the total cost of this alternative to the City/Agency would be
slightly less than the proposed Developer Project, the cost/unit would be approximately $40,000 higher.
(Appendix J (updated).) This is a significantly less efficient and effective way to spend the funds available
for redevelopment of the Agency-owned parcels than the proposed Developer Project.
Finally, Alternative 6 would not meet the objective of the Developer Proposal to redevelop all of the
Agency-owned properties, and it would not meet the objective of providing new affordable housing for
families in furtherance of the City's affordable housing goals to the same extent as the proposed project.
Also, it is unlikely that the City/Agency would be able to attract a quality developer to undertake a small
scale scattered site development such as that which would be constructed under Alternative 6. This will
seriously constrain the potential for providing economically viable redevelopment.
In light of these considerations, the Agency rejects this alternative as infeasible.
3.4.3 Findings on Alternatives that were Considered but Eliminated
from Detailed Analysis in the Draft EIR
In addition to the six alternatives evaluated in the Draft EIR, the Lead Agency considered two other
alternatives, both of which it eliminated from detailed analysis in the EIR either because it did not meet
most of the basic project objectives, would not reduce or avoid significant impacts of the project as
proposed, and/or is not feasible. These alternatives are discussed below.
¦ Alternative Site
This alternative would use an alternative site from that proposed for the Transit Zoning Code and
Developer projects.
Findings
The Agency hereby fords that specific economic, legal, social, technological or other considerations make
the adoption of an Alternative Site alternative infeasible. The Transit Zoning Code is designed to guide
development near existing and planned transit and is therefore dependant on the location described for
the proposed project. An alternative site for the Transit Zoning Code project would not locate
development or provide the framework for development near existing or planned transit infrastructure.
Therefore, it would not be able to fulfill the basic project objectives of providing a transit-supportive,
pedestrian-oriented development framework to support the addition of new transit infrastructure, nor
would it encourage alternative modes of transportation, or increase access to the rail system that
3-14 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-187 Considerations
Chapter 3 Findings Regarding Project Alternatives
connects San Diego to Los Angeles. Failure to meet these key project objectives renders an alternative
site infeasible.
It would also be infeasible to develop the proposed Developer Project in an alternative location.
Currently the Redevelopment Agency owns a cluster of parcels in the proposed project area and is
considering the acquisition of other properties in the vicinity of these Agency-owned parcels. The
proposed Developer Project is designed and proposed to redevelopment these specific properties. It
would not be practical or feasible to abandon plans for these parcels and begin new future acquisitions
elsewhere, and doing so would fail to meet most of the basic project objectives of the Developer Project.
Specifically, an alternative location would not result in redevelopment of the Agency-owned properties,
would not enhance the streetscape and urban form of the area, particularly along Santa Ana Boulevard,
with the construction of new buildings that meet the standards contained in the Transit Zoning Code
and that support future transit planning, and would not provide an economically viable redevelopment
scenario for the Agency-owned properties. Further, comparable parcels within the entire Transit Zoning
Code are limited by proposed future uses and incompatible existing surrounding uses. Therefore, the
proposed site of the Developer Project is the only feasible location for this redevelopment project.
¦ Rehabilitation of Potential New Acquisitions Alternative
In this alternative, the Redevelopment Agency would acquire properties within the Developer Project in
order to complete blocks where the Agency already has an ownership interest, as it would under the
proposed Developer Project. However, instead of demolishing these structures, the Redevelopment
Agency would rehabilitate them in place.
Findings
The Agency hereby finds that specific economic, legal, social, technological or other considerations make
the adoption of this alternative infeasible. This alternative would prevent redevelopment of Agency-
owned properties, a key project objective of the Developer Project. It would also substantially limit the
opportunity to provide new affordable housing for families in furtherance of the City's affordable
housing goals established in the Housing Element, the Implementation Plan for the Santa Ana Merged
Redevelopment Project Area, and the City of Santa Ana Consolidated Plan. Further it would not enhance
the streetscape and urban form of the area, particularly along Santa Ana Boulevard, with the construction
of new buildings that meet the standards contained in the Transit Zoning Code and that support future
transit planning. Not would it secure provision of public open space or facilitation of a joint use
arrangement with SAUSD for a new community center. Finally, it would not provide an economically
viable redevelopment scenario for the Agency-owned properties. Additionally, it would result in the
elimination of an opportunity to provide new quality housing. As a result, if demolition of the properties
that may be acquired by the Agency were precluded, the Redevelopment Agency would not pursue their
acquisition, and the benefits of the Developer Project, including the creation of new public open space,
the elimination of blight, and an enhancement of the streetscape, would not be realized.
Transit Zoning Code (SD 84) EIR Findings of Fab =eit overriding Considerations 3-15
Chapter 3 Findings Regarding Project Alternatives
3.4.4 Additional Findings
¦ Findings Related to Clarifications and Updates to the Draft EIR
Chapter 3 of the Final EIR includes the comments received on the Draft EIR and responses to those
comments. The focus of the responses to comments is on the disposition of significant environmental
issues as raised in the comments, as specified by CEQA Guidelines 5 15088(b). Additionally, as a result
of refinements to the proposed Developer Project since publication of the Draft EIR, the allocation of
rental of units and for sale units that would be constructed under the proposed Developer Project and
under Alternatives 4, 5 and 6 has been slightly modified. The February 23, 2010 financial analysis
prepared by Keyser Marston Associates that was included as Appendix J to the EIR has been updated to
reflect these modifications. The updated financial analysis, dated May 22, 2010, is included as Appendix J
to the Final EIR.
Findings
Responses to comments made on the Draft EIR and revisions to the Final EIR merely clarify and
amplify the analysis presented in the EIR and do not trigger the need to recirculate per CEQA Guide-
lines ?15088.5(b). Similarly, the refined reallocation of rental and for sale residential units that would be
provided by the Developer Project and the updates to the Keyser Marston Associates financial analysis
merely clarify and amplify the analysis presented in the EIR and do not trigger the need to recirculate per
CEQA Guidelines §15088.5(b).
¦ Findings on Measures Suggested in Comments on the Draft EIR
Several mitigation measures and alternatives were proposed in public comments on the Draft EIR.
Findings for these mitigation measures and alternatives are provided below.
Findings on Mitigation Measures Proposed to Reduce Impacts to Cultural Resources
¦ Proposed Mitigation Measure. Make the Lacy Neighborhood a special district based on its
historical character and proposed a Historic Neighborhood District, Conservation or Preservation
Overlay for the Lacy Neighborhood. (See Final EIR Chapter 3 (Responses to Comments), Letter
from Jeff Dickman (JD), comments JD-24, -27, -35, and -45.)
Finding. The Agency finds that specific economic, legal, social, technological, or other
considerations make this mitigation measure infeasible.
Rationale. The Lacy neighborhood has not been designated as historic, and there is no evidence
that the creation of a historic district within the Lacy Neighborhood would reduce the significant
impacts of the proposed project. Further, the creation of a historic district within the City is a
separate process requiring adoption of a local preservation ordinance and cannot be accomplished
through the CEQA process for the proposed project. (See Santa Ana Municipal Code, Part Il,
Chapter 30.) Therefore, it is not feasible to adopt and implement this measure as part of the
project.
¦ Proposed Mitigation Measure. Create a "Master Plan for the Preservation of Cultural Resources
in the Transit Zoning Code Area" that identifies properties expected to be impacted by the project,
the type of impact expected, and mitigation measures to reduce impacts to and avoid demolition of
3-16 Revised Station District Project and FOL Settlement Agreement Findings of FacVStatement of Overriding
8 OA-18 9 Considerations
Chapter 3 Findings Regarding Project Alternatives
historic properties. (See Final EIR Chapter 3 (Responses to Comments), Letter from Jeff Dickman
QD), comment JD-26.)
Finding. The Agency finds that specific economic, legal, social, technological, or other
considerations make this mitigation measure infeasible.
Rationale. Identification of the properties that would be impacted by the project, identification of
the type of impact expected, and identification of mitigation measures to reduce impacts and avoid
demolition of historic properties has already been conducted in the EIR. Specifically, Table 4.4-2
(as modified in Final EIR Chapter 2) lists all properties proposed for demolition under the
proposed Developer Project, and the analysis under Impact 4.4-3 explains that multiple studies
have been completed that address many of the historic-age properties within the project area. In
2006, HRG conducted a reconnaissance-style survey and historic research project in support of the
Santa Ana Renaissance Specific Plan prepared by Moule & Polyzoides (HRG 2006). This project
aimed to provide recommendations for historic preservation planning on about 400 acres,
including many of the properties found within the Transit Zoning Code (SD 84) project area.
Subsequent property-specific studies were conducted by Jones and Stokes (2006 and 2007), which
resulted in the full recordation and evaluation of many of the properties within the Transit Zoning
Code (SD 84) project area. These evaluations included determinations of eligibility for the NRHP,
CRHR, and the Santa Ana Register of Historic Properties (SARHP). An additional historic
resources memorandum for the record was then prepared for several properties in Santa Ana by
Sapphos Environmental, Inc. This memorandum provided recommendations about the eligibility
of 30 properties for inclusion in the SARHP. (Refer to DEIR, Appendix D.) Table 4.4-1 lists all
properties listed on the SARHP that could be impacted by the proposed Transit Zoning Code, and
Figure 4.4-1 shows all of these properties on a map of the Transit Zoning Code area and the
surrounding areas.
The EIR then identifies Mitigation Measure MM4.4-3 to reduce impacts to historic resources
throughout the Transit Zoning Code Area. This measure would require a qualified professional to
conduct site specific historical resource investigations for future developments within the project
area that would demolish or otherwise physically affect buildings or structures 50 years old or older
or affect their historic setting.
¦ Proposed Mitigation Measure. Preserve historic properties in the Lacy Neighborhood. (See
Final EIR Chapter 3 (Responses to Comments), Letter from Jeff Dickman UD), comment JD-28.)
Finding. The Agency finds that specific economic, legal, social, technological, or other
considerations make this mitigation measure infeasible.
Rationale. There are a very limited number of designated historic resources in the Lacy
Neighborhood (see Draft EIR Figure 4.4-1 [Santa Ana Register of Historical Properties within the
Transit Zoning Code Area]), and the neighborhood itself has not been designated as historic.
Mitigation measure MM4.4-3 would reduce impacts to historic resources throughout the Transit
Zoning Code Area to the extent feasible. Preservation of all historic properties in the Lacy
Neighborhood is not feasible because it may inhibit the City's ability to meet its affordable housing
goals. Construction of affordable housing units is critical to meeting the City's Regional Housing
Needs Assessment (RHNA) for 2006-2014, and the City has an adopted policy to "maximize
affordable housing on Agency-owned properties that is of high quality, sustainable, and available to
various income levels." (See Santa Ana Housing Element [2006-2014], Policy HE-2.8.)
Additionally, preservation of certain properties within the Lacy Neighborhood may inhibit the
City's ability to "encourage the construction of rental housing for Santa Ana's residents and
workforce, including a commitment to very low, low and moderate income residents and moderate
Transit Zoning Code (SD 84) EIR Findings of Fact[SWtein=n1 QLQyerriding Considerations 3-17
Chapter 3 Findings Regarding Project Alternatives
income Santa Ana workers" (Policy HE-2.3) and to fulfill its policy to "facilitate and encourage a
diversity and range in types, prices, and sizes of housing, including single-family homes,
apartments, town homes, mixed/multiuse housing, transit-oriented developments, and live/work
housing" (Policy HE-2.4). (See Santa Ana Housing Element [2006-2014].)
Further, preservation of all historic properties within the Lacy Neighborhood would be
inconsistent with the objectives of the proposed Developer Project to "redevelop all of the
Agency-owned properties" and "provide new affordable housing for families in furtherance of the
City's affordable housing goals established in the Housing Element, the Implementation Plan for
the Santa Ana Merged Redevelopment Project Area, and the City of Santa Ana Consolidated
Plan."
¦ Proposed Mitigation Measure. In-place rehabilitation, residential and business re-use, and/or
relocation of historic properties to vacant land within the Lacy Neighborhood. (See Final EIR
Chapter 3 (Responses to Comments), Letter from Jeff Dickman QD), comments JD-34, 38.)
Finding. The Agency finds that specific economic, legal, social, technological, or other
considerations make this mitigation measure infeasible.
Rationale. Funding for development of the Agency-owned properties within the Lacy
Neighborhood is contingent upon these funds being spent on residential uses. Therefore, use of
these funds for non-residential adaptive re-use is prohibited. Accordingly, commercial re-use of
historic properties on the Agency-owned parcels within the Lacy Neighborhood is legally
infeasible.
Additionally, in-place rehabilitation and/or relocation and rehabilitation of properties proposed for
demolition on Agency-owned parcels within the Lacy Neighborhood are evaluated in Recirculated
Draft EIR (Chapter 5.0). Specifically, Alternative 4 would eliminate the demolition of the
structures currently existing on the Agency-owned properties and/or identified for acquisition, and
would instead require that those properties be retained and rehabilitated in their current locations.
Alternative 5 would reduce the demolition of properties owned by the Redevelopment Agency
and/or identified for acquisition, and would instead require that those properties be rehabilitated,
either in-place or off-site, with the exception of the property at 611 N. Minter Street, which would
be demolished. Alternative 6 would retain and rehabilitate the bungalow court located at 611 N.
Minter Street; however, the remainder of the structures located on the Agency-owned parcels
would be demolished. Please see Chapter 5.0 for additional details about these Alternatives.
¦ Proposed Mitigation. Creation of a community park within the Lacy Neighborhood by taking
the following actions:
> Close a portion of Sixth Street between Porter and Lacy. Relocate 3 of the vintage houses on
the south side of Sixth Street to other vacant land on Fifth Street.
> Build a single row of new housing along the south side of Santa Ana Blvd. Use the remainder of
the land south of this single row of new housing to create another segment of the park.
> Acquire 617 E. Sixth for park purposes. Salvage the wood components from this structure
before demolition.
> Preserve in place 701 and 713 E. Fifth Street.
(See Final EIR Chapter 3 (Responses to Comments), Letter from Jeff Dickman QD), comment
JD-39.)
Finding. The Agency finds that specific economic, legal, social, technological, or other
considerations make this mitigation measure infeasible.
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8OA-191 Considerations
Chapter 3 Findings Regarding Project Alternatives
Rationale. Closing a portion of Sixth Street between Porter and Lacy is not feasible because it
would severely limit future transit planning within the City and would be inconsistent with the
Transit Zoning Code objective of "providing a transit-supportive, pedestrian-oriented
development framework to support the addition of new transit infrastructure." Further, street
closures are, in general, counter to the policies and design standards contained within the proposed
Transit Zoning Code. Maintaining a fine-grained, gridded street network allows for increased
pedestrian and vehicular accessibility which serves to disperse traffic throughout the area. In
addition, maintaining the existing street grid allows for greater opportunities for future
transportation alignments.
Similarly, building a single row of new housing along the south side of Santa Ana Blvd. and using
the remainder of the land south of this single row of new housing to create another segment of the
suggested park is infeasible because it would be inconsistent with the Developer Project objective
of "enhancing the streetscape and urban form of the area, particularly along Santa Ana Boulevard,
with the construction of new buildings that meet the standards contained in the Transit Zoning
Code and that support future transit planning."
It would also result in the loss of units that would otherwise be rented to low, very-low and
extremely-low income households. Construction of affordable housing units is critical to meeting
the City's Regional Housing Needs Assessment (RHNA) for 2006-2014, and the loss of such units
would be inconsistent with the City's adopted policy to "maximize affordable housing on Agency-
owned properties that is of high quality, sustainable, and available to various income levels." (See
Santa Ana Housing Element [2006-2014], Policy HE-2.8.) Additionally, the loss of affordable
housing units would be inconsistent with the City's policy to "encourage the construction of rental
housing for Santa Ana's residents and workforce, including a commitment to very low, low and
moderate income residents and moderate income Santa Ana workers" (Policy HE-2.3) and its
policy to "facilitate and encourage a diversity and range in types, prices, and sizes of housing,
including single-family homes, apartments, town homes, mixed/multiuse housing, transit-oriented
developments, and live/work housing" (Policy HE-2.4). (See Santa Ana Housing Element [2006-
2014].)
Further, the City of Santa Ana currently has a shortage of rental units appropriately sized to
accommodate families. As stated in the City's 2006-2014 Housing Element, while multiple-family
housing comprises 41% of all housing stock within the City, only 13% of multiple family and
single-family rental units have three or more bedrooms. It is estimated that 45% of all families who
rent have five or more members. This translates into a shortage of 12,000 large family rental units.
The Developer Project contains 78 two-bedroom units (two of which are manager units) and 67
three-bedroom units. In addition, the Mercy House project would provide one three-bedroom,
five-one bedroom and five two-bedroom units (exclusive of manager's unit) of special needs
housing. These units are appropriately sized to meet Santa Ana's identified demographic needs.
Reducing the number of units that could be provided by the proposed Developer Project would
not further the City's policies relating to the need for rental housing suitable for families
Moreover, under Health and Safety Code section 33334.2, in redevelopment project areas, not less
than 20 percent of the gross tax increment generated from a project must be used by the
redevelopment agency to increase and improve the community's supply of affordable housing.
Therefore, the use of funds for community serving infrastructure on the Agency-owned properties
must be related and proportional to development of affordable housing. There is no evidence that
funds need to construct the community park suggested by the commenter would be proportional
to the provision of affordable housing. Without such proportionality, it would be legally infeasible
to use the Agency's set-aside funds to construct the park suggested by the commenter.
Transit Zoning Code (SD 84) EIR Findings of Fabtatgm= rat 6 2erridi ng Considerations 3-19
Chapter 3 Findings Regarding Project Alternatives
Finally, the EIR analyzed numerous alternatives to the proposed project that would reduce impacts
to historic resources. (See Recirculated EIR Chapter 5.0.) Specifically, Alternative 4 would
eliminate the demolition of existing structures on Agency-owned properties and would eliminate
any of the new potential acquisitions identified in Figure 5-2. Therefore, the suggestion to preserve
in place 701 and 713 E. Fifth Street is within the range of alternatives already analyzed in Chapter
5.0. In addition, CEQA does not require alternatives to individual project components. The
suggestions provided in the comment are not considerably different from what is already analyzed
in the EIR and would not clearly lessen the significant environmental effects of the project.
Findings on Mitigation Measures Proposed to Reduce Impacts to
Transportation/Trafc
¦ Proposed Mitigation Measure. Add language to the proposed project zoning code that includes
measures for planned safety near rail crossings and suggested mitigation measures that include
grade separations for major thoroughfares, improvements to existing at-grade highway-rail
crossings, and continuous vandal resistant fencing or other appropriate barriers to limit access of
trespassers onto the railroad right-of-way. (See Final EIR Chapter 3 (Responses to Comments),
Letter from California Public Utilities Commission (CPUC), comment PUC-2.)
Finding. The Agency fords that specific economic, legal, social, technological, or other
considerations make this mitigation measure infeasible.
Rationale. The project would not have an), significant impacts on safety at railroad crossings.
Therefore, mitigation measures that would require grade separations on project area roadways to
reduce potential auto/train conflicts are not required. Orange County Transportation Authority
(OCTA) is providing crossing safety enhancements at 10 railroad projects in the City of Santa Ana.
These planned upgrades will include flashing lights, pedestrian signals/gates, quad gates and raised
medians. Implementation of the Transit Zoning Code (SD 84) project will enhance safety for
motorists and pedestrians. Current technology will also be used to upgrade traffic and signal
controllers with implementation of the proposed project. In addition to these project components,
the Transit Zoning Code will be amended to include policy language in the Street and Network
Concepts section that states: "Any future or planned development adjacent or near the railroad
right-of-way be planned with the safety of the rail corridor in mind. This includes considering
pedestrian circulation/destinations with respect to railroad right-of-way."
¦ Proposed Mitigation Measure. Identify improvements and/or funding mechanisms to mitigate
the project's traffic impacts. (See Final EIR Chapter 3 (Responses to Comments), Letter from City
of Tustin (TUS), comment TUS-5.)
Finding. The Agency finds that specific economic, legal, social, technological, or other
considerations make this mitigation measure infeasible.
Rationale. The DEIR identifies mitigation measures needed as a result of expected project-
generated traffic in Section 4.11.3. Specific improvements are identified in mitigation measures
MM4.11-1 through MM4.11-16. Further, mitigation measure MM4.11-4 requires the City of Santa
Ana to "institute a program for systematic mitigation of impacts as development proceeds within
the Transit Zoning Code to ensure mitigation of the individual improvements." The program is
required to include, among other things, "a funding and improvement program ... to identify
financial resources adequate to construct all identified mitigation measures in a timely basis."
(Draft EIR Section 4.11.3, MM4.11-4.) The mitigation measures suggested by the City of Tustin
are already included in the project and will not provide meaningful additional mitigation beyond
the measures that are adopted.
3-20 Revised Station District Project and FOL Settlement Agreement Findings of FacVStatement of Overriding
8OA-193 Considerations
Chapter 3 Findings Regarding Project Alternatives
Findings on Mitigation Measures Proposed to Reduce Impacts to Public Services
¦ Proposed Mitigation Measure. Require the application of parkland in-lieu fees in conjunction
with development of the project. (See Final EIR Chapter 3 (Responses to Comments), Letter from
City of Tustin (TUS), comment TUS-2.)
Finding. The Agency finds that specific economic, legal, social, technological, or other
considerations make this mitigation measure infeasible.
Rationale. Development under the Transit Zoning Code project and Developer Project is
required to comply with mitigation measure MM4.10-5, which requires payment into the Park
Acquisition and Development Fund pursuant to Santa Ana Municipal Code Chapter 35, Article IV.
Over and above the requirement for new development to pay into the Park Acquisition and
Development Fund, the Redevelopment Agency is pursuing the acquisition and construction of a
range of potential open space amenities within the Transit Zoning Code area, which could include
a public park, new community center and a tot lot. Finally, the standards for private open space
contained within the Transit Zoning Code are designed to ensure that new development provide
open space and outdoor amenities on-site as part of the project design. Consequently, the impact
of the project on park facilities is less than significant and no further mitigation is needed.
Findings on Mitigation Measures Proposed in Comments Received Since the Planning
Commission Hearing on May 27, 2010
¦ Proposed Mitigation Measure. Adaptive reuse of any of the viable Lacy Neighborhood
resources. (Letter from Susan Brandt-Hawley, dated June 4, 2010.)
Finding. The Agency finds that specific economic, legal, social, technological, or other
considerations make this mitigation measure infeasible.
Rationale. The concept of "adaptive reuse" generally refers to the process of converting a
structure traditionally occupied by one use, such as a house used for residential purposes, to
another use, such as house converted to an office. All Agency-owned parcels within the Lacy
Neighborhood were purchased using 20% Set-Aside Redevelopment Agency funding. This
funding source is restricted in its use and may only be used to support projects which result in the
production of affordable housing as defined by State law. (Health and Safety Code § 33334.2 ).
Were the Agency to use these funds for any purposes not relating to increasing, improving, and
preserving the community's supply- of low- and moderate-income housing available at affordable
housing cost, the Redevelopment Agency would be required to make a finding that there is no
longer a need in the community to provide such housing. The Agency has not made and cannot
make such a finding in light of the demonstrated need for such housing. On the contrary, the
City's recently adopted and certified Housing Element details the need for affordable housing the
community at all levels of affordability. The scenarios analyzed in Alternatives 4, 5 and 6 all were
based on the restriction of this funding source to provide for affordable housing and, as such,
provided for continued use of the identified structures for residential purposes, specifically for
affordable housing. Adaptive reuse alternatives are found to be legally infeasible due to this
funding restriction. Adaptive reuse would result in nonresidential development, which is also
contrary to both the City and Agency's policy interest in promoting affordable housing in this
merged Project Area. (California Native Plant Society v. City of Santa Cru- (2009) 177 Cal.AppAth 957;
City of Del Mar r. City of San Diego (1982) 133 Cal.App.3d 401.) Please also refer to the Findings on
Mitigation Measures Proposed to Reduce Impacts to Cultural Resources in the Findings of Fact
and Statement of Overriding Considerations for a further discussion.
Transit Zoning Code (SD 84) EIR Findings of Fact/Sttatem nt of overriding Considerations 3-21
0A-1 94
Chapter 3 Findings Regarding Project Alternatives
¦ Proposed Mitigation Measure. Revise mitigation measure MM4.6-1 to require future
development projects to adhere to "[...] the 4`h term Municipal NPDES Stormwater Permit for
the Santa Ana Region of Orange County as adopted on May 11, 2009." (Letter from Orange
County Public Works, dated June 3, 2010, comment OCPW-3.)
Finding. The Agency finds that specific economic, legal, social, technological, or other
considerations make this mitigation measure infeasible.
Rationale. Because the majority of the future development of the Transit Zoning Code may occur
years in the future, requiring development projects to comply with "current National Pollutant
Discharge Elimination System (NPDES) requirements" ensures compliance with the most up-to-
date standards over a long period of time, since the requirements that are in effect today may differ
in the future. Writing the mitigation measure in this way places the responsibility of complying
with NPDES regulations on future project proponents, regardless of how the regulations change
over time. Therefore, the City will adopt mitigation measure MM4.6-1 as set forth in the EIR.
Finding Related to Clarifications and Updates to the EIR in Response to Comments
Received Since the Planning Commission Hearing on May 27, 2010
Finding. Responses to all written and oral comments on the EIR received since the Planning
Commission Hearing on May 27, 2010, merely clarify and amplify the analysis presented in the EIR and
do not trigger the need to recirculate per CEQA Guidelines §15088.5(b).
3_22 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
Considerations
8OA-195
Chapter 4 Findings on the Settlement Agreement and the Revised Station District Project
CHAPTER 4 Findings on the Settlement Agreement
and the Revised Station District
Project
4.1 INTRODUCTION
As discussed above, the unincorporated association "Friends of the Lacy Historic Neighborhood" filed a
Petition for Writ of Mandamus against the City and Agency challenging the certification of the EIR and
approval of the TZC, the Station District Project and the related purchase and demolition of certain
structures in the Lacy Neighborhood in Orange County Superior Court Case No. 30-2010-00388033-
CU-WM-CXC (the "Litigation"). The parties to the litigation entered into a Settlement Agreement to
resolve and settle all claims related to the Litigation. The Settlement Agreement relates to and affects the
development of the Station District/Developer Project.
This chapter describes the primary differences between the Station District Project as previously
approved and the Station District Project as modified. It also describes the other terms of the Settlement
Agreement. Finally, this chapter includes findings that the Settlement Agreement does not result in any
substantial changes to the Station District Project or the circumstances under which the Station District
Project is undertaken that would require any major revisions in the Final EIR, and there is no new
information with respect to the Project that would require such revisions. Additionally, no other terms
of the Settlement Agreement would require revisions to the Final EIR or further environmental analysis
because the terms do not involve new significant environmental impacts or a substantial increase in the
severity of an impact, and/or have no potential to result in a direct or indirect physical change in the
environment, and/or are otherwise exempt from CEQA.
4.2 PREVIOUSLY APPROVED STATION DISTRICT PROJECT
The Station District Project approved by the City and Agency in June 2010 proposed to construct 112
rental units and 32 for sale units. Construction of these units was proposed to occur on 43 Agency-
owned parcels in the Lacy Neighborhood. This construction would have resulted in the demolition of as
many as eighteen (18) residential properties, some of which were determined in the Final EIR to be
potentially significant historical resources and one of which is listed on the Santa Ana Register of
Historical Properties (SARHP). (See Final EIR, Section 4.4.)
4.3 REVISED STATION DISTRICT PROJECT
The Station District Project, as revised, would result in demolition of eight (8) residential properties and
would rehabilitate ten (10) residential properties, including the SARHP-listed property (501 E. Fifth
Street), all of which would be offered as rental units to very low and extremely low income tenants. In
total, the Revised Station District Project would construct 99 rental units and 24 for sale units. Though
Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 4-1
Considerations
8OA-196
Chapter 4 Findings on the Settlement Agreement and the Revised Station District Project
the mix of rental and for sale units has been slightly altered, construction would occur on the same lots as
the previously approved Station District Project.
Table 4-1 Pro
Address perties to Be R
APN ehabilitated/Demolished Under the Revised Station
District Project
Action Under Revised Station District Project
501 -501 112 E. 5th Street 398-332-09 Rehabilate in Place
507 Mortimer 398-332-09 Rehabilate in Place
505 E. 5th Street 398-332-08 Rehabilate in Place
505 N. Minter Street 398-333-09 Demolish
507 N. Minter Street 398-333-09 Rehabilate in Place
601-603 E. 5th Street 398-311-19 Rehabilate in Place
610-612 E. 5th Street 398-338-03 Relocate to 511 E. 5th St.
615-617 E. 5th Street 398-333-06 Rehabilate in Place
621 E. 5th Street 398-333-05 Rehabilate in Place
508-510 N. Porter St. 398-333-05 Demolish
620 E. 5th Street 398-338-05 Demolish
712 E. 5th Street 398-337-03 Rehabilate in Place
617 E. 6th Street 398-311-08 Demolish
613 E. 6th Street 398-311-07 Relocate to 602 E. 6th St.
615 A & B E. 6th Street 398-311-07 Demolish
609 E. 6th Street 398-311-06 Demolish
623 N. Garfield Street 398-313-04 Demolish
611 N. Minter Street 398-311-01 Demolish
4.4 OTHER SETTLEMENT AGREEMENT TERMS
Under the Settlement Agreement, the City and/or the Agency will take the following actions:
• Historic Survey. The City will retain a cultural resource professional who meets the Secretary of
the Interior's Professional Qualifications Standards for Architectural History to conduct a survey
to determine the historic status and eligibility for listing on either the California Register of
Historical Resources (CRHR) or the SARHP of all residential properties within the Lacy
Neighborhood with a construction date prior to 1961 that have not been surveyed within five (5)
years of the commencement of the survey.
• Laces Neighborhood Housing Fund. The Agency will establish a $200,000 residential housing
fund to encourage homeowners in the Lacy Neighborhood to re-invest in the exterior of their
properties. The fund will provide loans of up to $25,000. In addition, funds may be used for
4-2 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
80A-1 97 Considerations
Chapter 4 Findings on the Settlement Agreement and the Revised Station District Project
payment of fees associated with nomination of homes to the CRHR or SARHP and the Mills Act
Property Tax Abatement Program.
• Architectural Salvage. The Agency= will retain a qualified contractor to conduct salvage prior to
demolition of any residential structures that will be demolished as part of the Revised Station
District Project.
• Miscellaneous. The Agency will also make one property, 611 Minter Court, available for sale and
relocation prior to its demolition, and for eighteen (18) months, the Agency will notify petitioners
"Friends of Lacy" of the Agency's intended demolition of properties for redevelopment in the
Lacy Neighborhood, other than those properties that would be demolished pursuant to the
Revised Station District Project.
4.5 FINDING ON REVISED STATION DISTRICT PROJECT
Finding. The Agency hereby finds that the Station District Project, as revised, is feasible and will not
result in any substantial changes to the Station District Project or the circumstances under which the
Station District Project is undertaken that would require any major revisions in the Final EIR, and there
is no new information with respect to the Project that would require such revisions.
Rationale. The revisions to the Station District Project do not involve any new significant
environmental effects or a substantial increase in the severity of previously identified significant effects.
Specifically, the primary change in the project is the reduction in the number of residential properties that
will be demolished, from as many as eighteen (18) under the previously approved project to 8 under the
Revised Station District Project. This change reduces the number of demolitions by ten (10) and,
therefore, reduces the significant impact identified in the Final EIR to historical resources. There are no
other changes to the project that have any potential to result in any increased direct, indirect or
cumulative environmental impacts.
4.6 FINDINGS ON OTHER SETTLEMENT AGREEMENT TERMS
Finding. The Agency hereby fords that the terms of the Settlement Agreement do not require revisions
to the Final EIR or further environmental analysis because the terms do not involve new significant
environmental impacts or a substantial increase in the severity of an impact, and/or have no potential to
result in a direct or indirect physical change in the environment, and/or are otherwise exempt from
CEQA.
Rationale. The preparation of an historic survey is exempt from CEQA under CEQA Guidelines
15306, which exempts "information collection." Because the Historic Survey would simply evaluate
existing resources and would not result in any disturbance of environmental resources, it is exempt from
CEQA review. Establishment of the Lacy Neighborhood Housing Fund is similarly exempt from
CEQA because any improvements that would result from use of the fund would consist of repair,
maintenance or minor alterations of private structures involving negligible or no expansion of the
existing use. Therefore, establishment of the fund is exempt under CEQA Guidelines § 15301 (Existing
Facilities). Further, any rehabilitation of homes consistent with the Secretary of the Interior's Standards
Transit Zoning Code (SD 84) EIR Findings of Fat&t? =e%gerriding Considerations 4-3
Chapter 4 Findings on the Settlement Agreement and the Revised Station District Project
for the Treatment of Historic properties with Guidelines for Preserving, Rehabilitating, Restoring and
Reconstructing Historic Buildings would also be exempt under CEQA Guidelines § 15331. The salvage
program is also exempt under CEQA because it is a component of the ongoing salvage process with the
Santa Ana Historic Preservation Society, which began in 2004, and under the Existing Facilities
exemption (CEQA Guidelines § 15301) as it involves only minor exterior and interior alterations. All
other provisions of the Settlement Agreement have no potential for resulting in a direct or indirect
physical change on the environment and, therefore, are not "projects" as that term is defined in CEQA
Guidelines § 15378. Accordingly, they are covered by "the general rule that CEQA only applies to
projects, which have the potential for causing a significant effect on the environment. Where it can be
seen with certainty that there is no possibility that the activity in question may have a significant effect on
the environment, the activity is not subject to CEQA." (See CEQA Guidelines § 15061(b)(3).)
4.7 OTHER RELATED FINDINGS
The Agency hereby finds that the Mitigation Monitoring and Reporting Program adopted on June 7,
2010 in connection with approval of the Transit Zoning Code and the Station District Project remains in
effect.
4-4 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-199 Considerations
Chapter 5 Statement of Overriding Considerations
CHAPTER 5 Statement of Overriding
Considerations
5.1 INTRODUCTION
If a project that a Responsible Agency decides to carry out, finance or approve will have significant
effects which are identified in the final EIR but are not avoided or substantially lessened, it shall make
the findings described in Section 15093 of the CEQA guidelines, which states:
(a) CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social,
technological, or other benefits of a proposed project against its unavoidable environmental risks
when determining whether to approve the project. If the specific economic, legal, social,
technological, or other benefits of a proposed project outweigh the unavoidable adverse
environmental effects, the adverse environmental effects may be considered "acceptable."
(b) When the lead agency approves a project which will result in the occurrence of significant effects
which are identified in the final EIR but are not avoided or substantially lessened, the agency shall
state in writing the specific reason to support its actions based on the final EIR and/or other
information in the record. The statement of overriding considerations shall be supported by
substantial evidence in the record.
(c) If an agency makes a statement of overriding considerations, the statement should be included in
the record of the project approval and should be mentioned in the notice of determination. This
statement does not substitute for, and shall be in addition to, findings required pursuant to Section
15091.
This Statement of Overriding Considerations describes the anticipated economic, social, and other
benefits or other considerations of the Proposed Project to support the decision to proceed with the
project even though not all of the identified impacts are mitigated to a less-than-significant level.
5.2 UNAVOIDABLE SIGNIFICANT ADVERSE IMPACTS
Even with mitigation measures identified in the EIR for the project, the following significant impacts are
unavoidable because no feasible mitigation is available to further reduce the impacts to a less-than-
significant level. Refer to Chapter 2 (CEQA Findings) for further clarification regarding the impacts
listed below.
Aesthetics
Impact 4.1-5 Long-term cumulative development occurring pursuant to the Transit Zoning
Code (SD 84) would result in a substantial increase in shade/shadows over
sensitive uses.
Cumulative As noted in the discussion for Impact 4.1-5, new sources of increased shade
would likely result from new development under the proposed Transit Zoning
Transit Zoning Code (SD 84) EIR Findings of FaGVStatement of
_ 200 Overriding Considerations 5-5
Chapter 5 Statement of Overriding Considerations
Code (SD 84). Since there is typically no feasible mitigation available to reduce to
less than significant or eliminate shading impacts, significant and unavoidable
shading impacts would result from the proposed Transit Zoning Code (SD 84).
Cumulative development of additional medium- and high-rise buildings would
lead to additional shade impacts to various shade-sensitive uses throughout the
City. Therefore, cumulative shading impacts from future projects in the Transit
Village (TV) and Downtown (DT) Zones constructed pursuant to the Transit
Zoning Code would make a considerable contribution to this significant
cumulative impact.
Air Quality
Impact 4.2-5 Construction activities associated with the construction of individual projects
within the Transit Zoning Code area, including the Developer project, would
contribute substantially to an existing or projected air quality violation for criteria
air pollutants.
Impact 4.2-6 Operation of the proposed project would exceed South Coast Air Quality
Management District standards for VOC, NO,, CO, and PM,,, and would result
in a projected air quality violation.
Impact 4.2-7 Construction and operation of the proposed project would result in a
cumulatively considerable net increase of criteria pollutants for which the
proposed project region is in nonattainment under an applicable federal or state
ambient air quality standard.
Cumulative As the Basin is currently in nonattainment for ozone, CO, NOx, PM,()5 and PMZ5,
cumulative development would violate an air quality standard or contribute to an
existing or projected air quality violation. Therefore, this is considered to be a
significant cumulative impact within the Basin. Construction under the proposed
project would make a cumulatively considerable contribution to this significant
impact. In addition, as discussed in Impact 4.2-6, operation at full buildout of the
proposed project would result in quantities of air emissions that exceed the
SCAQMD thresholds for VOC, NOx, CO, and PM,,„ and would create a
cumulatively considerable contribution to this significant impact.
Cultural
Impact 4.4-3 The adoption of the Transit Zoning Code (SD 84) would result in substantial
adverse change in the significance of a historical resource as defined in Section
15064.5 of the CEQA Guidelines.
Cumulative The cumulative analysis for impacts on cultural and paleontological resources
considers a broad regional system of which the resources are a part. The
cumulative context for the cultural and paleontological resources analysis is
Orange County as a whole. While the project impact analysis for cultural
resources necessarily includes separate analyses for historic-period resources and
archaeological resources, the cumulative analysis combines these resources into a
single, non-renewable resource base and considers the additive effect of project-
specific impacts to significant regional impacts on cultural resources. Because all
5-6 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
80A-201 Considerations
Chapter 5 Statement of Overriding Considerations
cultural resources are unique and non-renewable members of finite classes, all
adverse effects or negative impacts erode a dwindling resource base. Federal,
state, and local laws protect cultural resources in most instances. Even so, it is not
always feasible to protect cultural resources, particularly when preservation in
place would frustrate implementation of projects. For this reason, the cumulative
effects of development in the Orange County region are considered significant.
However, because it is currently infeasible to determine whether future
development under the proposed Transit Zoning Code would result in demolition
or removal of historical resources within the project boundaries, the project's
incremental contribution to these cumulative effects would be cumulatively
considerable (i.e., the project would contribute to the loss of historical resources
in Orange County).
Noise
Impact 4.8-8 Operation of the Southern California Regional Rail Authority's (SCRRA) rail line
would potentially expose noise-sensitive land uses located within the Transit
Zoning Code (SD 84) area to noise levels that exceed the standards established by
the City of Santa Ana General Plan.
Impact 4.8-9 Construction activities associated with the proposed project would generate or
expose persons or structures to excessive ground borne vibration.
Cumulative Construction of individual projects pursuant to the Transit Zoning Code would
produce temporary vibration impacts. As discussed in Impact 4.8-9, the
construction vibration impact would be significant and unavoidable. As individual
development projects under the Transit Zoning Code (SD 84) area may be
constructed concurrently- with each other or other related projects, it is possible
that intense construction from two or more projects would simultaneously occur
at distances of 50 feet or less from existing nearby receptors. Therefore, vibration
from future development would potentially combine with construction vibration
of other projects to result in a potentially significant cumulative impact.
Cumulative The proposed project is located within close proximity to the Southern California
Regional Rail Authority's (SCRRA) rail line. Sensitive receptors, including
residential uses with exterior uses such as communal areas consisting of pocket
parks or pedestrian walkways and private balconies, may or may not be shielded
from noise generated by railroad operations. As a result, noise levels within these
areas may exceed the 65 dBA CNEL "Desirable Maximum" standard.
Transportation
Impact 4.11-9 Long-term cumulative development under implementation of the Transit Zoning
Code would result in impacts related to freeway ramps in the vicinity of the
Transit Zoning Code area.
Cumulative As identified in Impact 4.11-8, because implementation of the proposed project
would contribute to significant impacts at the study area intersections, and
because implementation of the potential improvement measures cannot be
Transit Zoning Code (SD 84) EIR Findings of Fact/Statement of Overriding Considerations 5_7
8OA-202
Chapter 5 Statement of Overriding Considerations
guaranteed, the long-term cumulative development pursuant to the Transit
Zoning Code would have a considerable contribution to cumulative impacts.
Climate Change
Impact4.13-1 Long-term cumulative development pursuant to the Transit Zoning Code at full
build-out would result in significant localized air quality impacts for operational
level emissions. As a whole, this impact is significant for operational emissions
due to the size of the Transit Zoning Code (SD 84) area.
Impact 4.13-2 Long-term cumulative development pursuant to the Transit Zoning Code at full
build-out has the potential to conflict with AB 32. The Project as a whole is
significant for operational emissions due to the size of the Transit Zoning Code
(SD 84) area.
¦ Short-Term Impacts
Of the sixteen significant unavoidable impacts directly attributable to the Proposed Project and
associated cumulative impacts, as identified above, four would be classified as short-term. These short-
term impacts are related to construction activities and their temporary effect on air quality and
groundborne vibration. Once the various construction projects are complete, these impacts would no
longer exist.
¦ Long-Term Impacts
Of the sixteen significant unavoidable impacts directly attributable to the Proposed Project and
associated cumulative impacts, as identified above, twelve of the aforementioned impacts are considered
long-term.
5.3 OVERRIDING CONSIDERATIONS
The Agency hereby finds that economic, legal, social, technological or other benefits of the Developer
Project outweigh the significant and unavoidable impacts identified in the EIR. In making this finding,
the Agency has balanced the benefits of the Developer Project against its unavoidable significant impacts
and has indicated its willingness to accept those adverse impacts. The Agency finds that the following
benefits of the Developer Project warrant approval of the Developer Project notwithstanding its
significant, unavoidable environmental impacts.
The objectives of the Developer Proposal component of the Project for the Agency-owned properties
are to:
¦ Redevelop all of the Agency-owned properties
¦ Provide new affordable housing for families in furtherance of the City's affordable housing goals
established in the Housing Element, the Implementation Plan for the Santa Ana Merged
Redevelopment Project Area, and the City of Santa Ana Consolidated Plan
¦ Enhance the streetscape and urban form of the area, particularly along Santa Ana Boulevard, with
the construction of new buildings that meet the standards contained in the Transit Zoning Code
and that support future transit planning
5-8 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
8OA-203 Considerations
Chapter 5 Statement of Overriding Considerations
¦ Eliminate blight
¦ Provide additional public open space and facilitate joint use arrangement with SAUSD for a new
community center
¦ Provide an economically viable redevelopment scenario for the Agency-owned properties
Having (i) adopted all feasible mitigation measures, (ii) rejected as infeasible alternatives to the Project
discussed above, (iii) recognized all significant, unavoidable impacts, and (iv) balanced the benefits of the
Project against the Project's significant and unavoidable impacts, the Agency hereby finds that its
benefits outweigh and override its significant unavoidable impacts for the reasons stated below. Each
benefit set forth below constitutes an overriding consideration warranting approval of the project,
independent of the other benefits, despite each and every unavoidable impact.
¦ Developer Project Benefits
a. The Transit Zoning Code component of the Project provides a framework for the development of
compact, transit-oriented development, such as the Developer Project, that contains a mix of
residential, commercial and professional uses in order to address the City's and the region's goals
of providing sites for housing in already urbanized locations that are adjacent to transit, thereby
reducing vehicle trips and related greenhouse gas emissions, as well as stimulating investment in
underutilized land, and improving the jobs/housing balance within the City. According to a study
published by the Southern California Association of Governments entitled "The New Economy
and the Jobs/Housing Balance in Southern California," the Los Angeles and Orange Counties
regions have a higher proportion of jobs to housing than do those areas in the Inland Empire. Due
to a lack of readily available land for new housing construction in these jobs-rich areas, workers are
required to drive farther and farther distances in order to find affordable housing. A situation that
exacerbates this lack of available land for new housing is the over-zoning of land for commercial
uses, which cities have historically done in order to increase sales tax revenues following the
adoption of Proposition 13 in 1978. The Transit Zoning Code would re-zone property, either
through standard zoning tools or through overlay zones, that was not historically zoned for
residential use, thereby increasing the land available for residential development and providing
more housing in an already urbanized, jobs-rich environment (Tbe New Economy and the Jobs/Housing
Balance in Southern California, Southern California Association of Governments, April 2001. Los
Angeles, CA.)
b. The Transit Zoning Code area is ideally located for increased growth by its proximity to major
transit systems and its adjacency to existing residential communities and an established gridded
street network. The Transit Zoning Code supports the existing transportation network, and creates
amenity-enriched connections between the Government Center and Rail Station, and improves
area-wide walkability.
c. The Transit Zoning Code allows land uses and land densities that will provide transit-supportive
development, such as the Developer Project, necessary to generate adequate ridership on the
proposed Santa Ana Fixed Guideway transit system which will serve Santa Ana Regional Transit
Center ("SARTC").
d. The Transit Zoning Code provides zoning which would allow for the integration of new infill
development, such as the Developer Project, into existing neighborhoods.
e. The Transit Zoning Code and the Developer Project are consistent with and further the goals,
policies and objectives of the Southern California Association of Governments ("SCAG") 2008
Transit Zoning Code (SD 84) EIR Findings of FacVStatement of Overriding Considerations 5_9
8OA-204
Chapter 5 Statement of Overriding Considerations
Regional Transportation Plan: Making the Connections (RTP), and SCAG's 2008 Regional Comprehensive
Plan: He ping Communities Achieve a Sustainable Future (RCP) land use goals. The RTP's goals include
identifying strategic areas for infill, pedestrian friendly environments, and focusing housing and
employment growth in transit-accessible locations through transit-oriented developments (EIR,
Section 4.7 [Land Use], and RTP, pp. 90-91). The RCP includes similar strategies, such as
establishment of mixed-use clusters and other transit oriented development around transit stations
and along transit corridors (RCP, pp. 15-17).
f. Development of the Transit Zoning Code will result in fewer traffic impacts than the No
Project/Reasonably Foreseeable Development (Table 5-3). This result is consistent with and
furthers the implementation strategies detailed in the California Resources Board Climate Change
Scoping Plan (Scoping Plan). AB 32 directed the California Air Resources Board (ARB) to develop
a Scoping Plan with actions to reach the target. The Scoping Plan's proposed strategies for local
governments include a greenhouse gas (GHG) reduction measure of "infill, affordable and transit-
oriented housing development and the land use changes necessary to increase such development."
(Scoping Plan, Vol. 1, C-76.)
g. The Transit Zoning Code plays a critical role in achieving targets under SB 375, California's
Sustainable Communities and Climate Protection Act. The ARB Scoping Plan cites the key role of
SB 375 in implementing AB 32, noting SB 375 "reflects the importance of achieving significant
additional reductions of greenhouse gas emissions from changed land use patterns and improved
transportation to help achieve the goals of AB 32." (Scoping Plan, p. 47.) The role of local
governments is also recognized in reaching SB 375 targets. "Local Governments have the ability to
directly influence both the siting and design of new residential and commercial developments in a
way that reduces greenhouse gases associated with vehicle travel, as well as energy, water, and
waste.... Enhanced public transit service combined with incentives for land use development that
provides a better market for public transit will play an important role in helping to reach regional
targets." (Scoping Plan, p. 48.) The AB 32 implementation strategy for SB 375 includes the following
measure: "Enhanced public transit service combined with incentives for land use development that
provides a better market for public transit will play an important role in helping to reach regional
targets." (Scoping Plan, p. 48.)
h. The City of Santa Ana currently has a shortage of rental units appropriately sized to accommodate
families. As stated in the City's 2006-2014 Housing Element, while multiple-family housing
comprises 41% of all housing stock within the City, only 13% of multiple family and single-family
rental units have three or more bedrooms. It is estimated that 45% of all families who rent have
five or more members. This translates into a shortage of 12,000 large family rental units. The
Developer Project contains 77 two-bedroom units and 68 three-bedroom units. In addition, the
Mercy House project will provide one three-bedroom and five two-bedroom units. These units are
appropriately sized to meet Santa Ana's identified demographic needs.
i. The City currently suffers from a shortage of affordable housing. As set forth in the City's certified
Housing Element (2006-2014), the City of Santa Ana's share of the Regional Housing Needs
Allocation (RHNA) for 2006-2014 3,393 units of new residential construction, 694 of which are to
be affordable to very low income households, 574 of which are to be affordable to low income
households, and 665 to be affordable to moderate income households (EIR, Section 4.9). State law
mandates that in order to satisfy its RHNA requirement the City create opportunities for new
housing, particularly affordable housing, through the application of zoning which allows for
increased density. The existing maximum density allowed under the current zoning within the area
covered by the Transit Zoning Code is 15 dwelling units per acre, though there are projects within
the area that were constructed prior to the establishment of the current zoning that exceed the 15
5-10 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
Considerations
80A-205
Chapter 5 Statement of Overriding Considerations
dwelling units per acre. The State Department of Housing and Community Development (HCD)
requires that cities provide zoning that allows for residential construction at a minimum density of
30 dwelling units per acre in order to meet the density criteria that HCD has established as being
supportive of affordable housing production. The City's Housing Element identified the
Renaissance Specific Plan area, which shares the same geographic boundary as the Transit Zoning
Code area, as one that has the potential to provide a new source of residential in-fill development
and, as such, was used to partially satisfy the City's RHNA requirement. During the planning
period covered by the Housing Element (2006-2014) it is estimated that the City could anticipate
up to 238 units of new residential development. Throughout the life of the Transit Zoning Code (a
planning horizon of 20 to 30 years) it is estimated that there could be as many as 4,075 new
residential units, a portion of which could be expected to meet affordability requirements. The
Project implements the Housing Element and provides the zoning necessary- to stimulate new
affordable housing production.
j. The Developer Project component of the Project and the Mercy House project (and/or another
form of affordable housing or other use on the site of the Mercy House project) will provide up to
220 new residential units. As currently designed these projects will provide approximately 122
rental units affordable to those meeting the Orange County criteria for Low, Very-Low and
Extremely Low Income, three manager's units for the rental projects, approximately 24 for-sale
units, up to five of which will be affordable to those meeting the Orange County criteria for
Moderate Income, and the balance of which will be market-rate for-sale units. This creates a
combined total of approximately 149 new residential units. Of these, approximately 127 will be
deed-restricted affordable housing and will be counted towards the City's RHNA requirement.
These 127 affordable units represent 53% of all new units estimated to be constructed within the
2006-2014 planning horizon of the Housing Element for the Transit Zoning Code area and
represent 10% of the City's total RHNA requirement for Very Low and Low Income housing
(1,268 units - City of Santa Ana Housing Element 2006-2014 Table 4). This is a significant
contribution to meeting both the State mandated requirements for affordable housing production,
as well as meeting a real need for the residents of Santa Ana. In addition, the Mercy House project
(11 of the 127 previously described units) meets the City's criteria for Special Needs housing, also
identified as a need in the Housing Element. Failure to approve the Developer Project and the
Mercy House project will eliminate an important new source of affordable housing and special
needs housing.
k. The Developer Project furthers the City's policy of "maximiz[ing] affordable housing on Agency-
owned properties that is of high quality, sustainable, and available to various income levels." (See
Santa Ana Housing Element [2006-2014], Policy HE-2.8.) It meets the City's policy to "encourage
the construction of rental housing for Santa Ana's residents and workforce, including a
commitment to very low, low and moderate income residents and moderate income Santa Ana
workers" (Policy HE-2.3) and its policy to "facilitate and encourage a diversity and range in types,
prices, and sizes of housing, including single-family homes, apartments, town homes, mixed/multi-
use housing, transit-oriented developments, and live/work housing" (Policy HE-2.4). (See Santa
Ana Housing Element [2006-2014].) The Transit Zoning Code component of the Project
accomplishes this by creating zoning and affordable housing incentives that supports the
development of new affordable housing by allowing for densities which provide the economies of
scale necessary to allow for below-market construction. The Transit Zoning Code also provides for
a wide variety of housing types which includes everything from single-family detached houses to
high-rise mixed-use development. By allowing for a mixture of uses both horizontally on single
properties, and vertically within single buildings, the Transit Zoning Code provides opportunities
Transit Zoning Code (SD 84) EIR Findings of Fac /SStta/?1-20Overriding Considerations 5-11
Chapter 5 Statement of Overriding Considerations
for a diverse mix of housing in furtherance of the City's Housing Element. The Developer Project
and the Mercy House component of the Project accomplish this by providing 125 new rental units
and 24 new for-sale units. Of these units, approximately 127 will be deed restricted to ensure their
long-term affordability. This new housing is comprised of a variety of product types including
courtyard housing, townhomes and row houses in furtherance of the provisions of the Housing
Element and the Transit Zoning Code.
1. The Transit Zoning Code provides for a planning and zoning framework to allow for the
redevelopment of the Agency-owned properties, thereby eliminating blight and providing for new
property tax generation. The Agency-properties are, for the most part, vacant land in the
ownership of a public agency and, as such, do not currently generate any property tax revenue. The
Project will allow for the redevelopment of these properties and their return to economic use. The
adoption of the Transit Zoning Code also allows for the future development of other vacant and
underutilized properties currently in private or public ownership in other parts of the project area.
One such example is the current County= of Orange Operations Yard. The Operations Yard
comprises approximately 9.5 acres of underutilized land as the County of Orange continues to
consolidate their fleet and maintenance operations in other facilities. Adoption of the Transit
Zoning Code provides for the zoning framework and environmental analysis necessary to allow
these properties to transition into more economically productive uses and to potentially generate
new property and sales tax revenues. Many areas within the Transit Zoning Code suffer from a
lack of modern infrastructure and are in need of new street and sidewalk improvements. The
additional tax revenues generated by new development within the Transit Zoning Code area will
allow for reinvestment in public infrastructure and new investment that will stimulate the economy
of this area.
m. The Project furthers the Project Objectives set forth above, incorporated in full by this reference.
5_12 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding
Considerations
8OA-207
FIRST AMENDMENT TO
DEVELOPMENT AND DISPOSITION AGREEMENT
THIS FIRST AMENDMENT TO DISPOSITION AND DEVELOPMENT
AGREEMENT (this "First Amendment") is entered into as of , 2011 by and
between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA,
a public body, corporate and politic (the "Agency"), and SANTA ANA STATION DISTRICT,
LLC, a California limited liability company (the "Developer").
RECITALS
A. The Agency and the Developer have
Agreement ("DDA"), dated as of June 7, 2010, which
of and assemble an approximately six (6) acre site `.`
and in turn to convey the Site to Developer in pha
to develop, construct, and operate a number of" bir
which are described more particularly in the `18.gp
Attachment No. 5.
ntofed, thlo a Disposition and Development
ffi 94 es frthe Agency to acquire possession
)7'locatedanta Ana, California ("City"),
['he DDA furfx=provides for the Developer
ble housing until:`-Project'), the details of
of Development' aW hed to the DDA as
B. Developer, City, and
18, 2011 with certain other parties ("
and affects the development of the Site
C. The part
amending and restatin
with the terms and cM1fl4c
NOW,:TFiEREF(
herein, arli` 0:d,anc
aclrnovld; the Agency
1 Defined Te
this First A?dment shall
now i' m it
set fd[#lr,in this
mt Agreement dated as of April
Settlement Agreement relates to
Qes be made to the DDA.
Vests to amend the DDA by
related changes in accordance
mutual covenants and undertakings set forth
receipt and sufficiency of which are hereby
tee as follows:
in the DDA. All capitalized and defined terms used in
..given to them in the DDA.
2. ScW,, of Develom" ent. The Scope of Development attached to the DDA as
Attachment No. 5, `9i:l by dell and replaced with the new Scope of Development, attached to
this First Amendment as=ghihzt'f
3. Site Map. 'i'h Site Map attached to the DDA as Attachment No. 1, is hereby deleted
and replaced with the new Site Map, attached to this First Amendment as Exhibit 2.
4. Definitions. The definitions of "For Sale Portion of the Project," "For Sale Unit(s),"
"Phase FS," and "Phase R-2" shall be deleted and replaced with the following definitions
(a) "For-Sale Portion of the Project" means that portion of the Project that
consists of the For-Sale Units (including the Affordable For-Sale Units). The
For-Sale Portion of the Project consists of three (3) lots as identified on the
Site Map and may be constructed in multiple phases, and shall include any
1
Exhibit 3
DOCSOC/ 1491239v3/200272-0001
8OA-208
Additional Properties designated for For-Sale Units which are added to the
Project pursuant to Section 207 hereof. The Affordable For-Sale Units shall
be located within the For-Sale Portion of the Project.
(b) "For Sale Unit(s) " means the Housing Unit(s) (inclusive of the Affordable
For-Sale Units) that shall be constructed and developed on the For-Sale
Portion of the Project pursuant to and consistent with the terms of this
Agreement. A total of approximately twenty-four (24) For-Sale Units (plus
any For Sale Units to be constructed on the Additional Properties) shall be
constructed and developed by the Developer, inclusive of the Affordable For-
Sale Units.
(c) "Phase FS" shall mean the Phase 9 ction of the Project which shall
include the development of apprq 44 enty-four (24) For-Sale units
(inclusive of the Affordable For -.Safe Unitsgi. e For-Sale Portion of the
Site. Specifically, Phase F.S"! dflFbe constructer ? !Ihin the area identified on
the Site Map as "Lot B," "dt `F," and "Lot 4 "
(d) "Phase R-2" shall mean the se of cQ#Aruction of tli` =project, which shall
include the development ofappr? amaa Thirty-nine (39)l ntal Units on
the Rental Po' f.the Property Td fiall include any Additional Properties
designated for )x M42. which area ded to the Project pursuant to Section
207 hereof. Spe'e ically? . ase R-2 vvilli c. constructed within the area
identified on the 9&Iv1ap asp` ; t2"LdV._, "Lot A," "Lot C," "Lot D,"
(e) "dental Porft ist of the P1` t t" means thatportion of the Project that
desists of tK-111plental Units ~:The Rental Portion of the Project consists of
sevdij: 7 IQt t entified d ~lhe Site Map and shall be constructed in two fffa
separatehses (lhas_R-1 afcl'hase R-2).
S? - Develope ' Condrtt > s of Clok Settlement Agreement. A new Subsection
204 2(o) dite DDA is herel added v-' ch shall read as follows:
"(o) Se ment gYBement. Neither the Agency nor the
City shalEft- in default of the Settlement Agreement dated as
,f April;;:- $, 2011 entered into by the City, Agency,
lyelgpand certain other parties, including Friends of
La oric Neighborhood, an unincorporated association."
6. Lot Merger. Section 303.2 of the DDA is hereby deleted and replaced in its entirety
and with the following:
"Lot Merger. On or prior to the dates of conveyance for Lot
1 (Phase R-1), and Lots 2 and 3 (in Phase R-2), respectively,
the Agency shall cause a lot merger(s) pursuant to Santa Ana
Municipal Code Sections 34-366 through 34-377 or other
Subdivision Map Act compliance so as to combine all of the
applicable parcels of the applicable Lots into a single parcel."
2
Exhibit 3
DOCSOC/1481239v3/200272-0001
8OA-209
7. Number of Affordable Rental Units. Section 401.1 of the DDA is hereby deleted
and replaced in its entirety and with the following:
"Number of Affordable Rental Units. Pursuant to this
Agreement and the Regulatory Agreement, the Developer
covenants and agrees to make available, restrict occupancy to,
and rent the Rental Units at an affordable rent pursuant to
Section 401.5 as follows:
(a) In Phase R-1, of seventy-four (74) newly constructed
Rental Units: (i) thirty-nine (39) of the=two (2) bedroom
Rental Units to Very Lo
Affordable Rent; (ii) eleven
Rental Units to Extremely L
Affordable Rent; (iii) ninete
Rental Units to Very I
Affordable Rent; and rta .dt11
Rental Units to ExtreriW.J,i
Affordable Rent.
w lncon%*N 1*Ibuseholds at an
(I1 :i a two (2) bedroom
3111, Households at an
ri_` of the` fhe (3) bedroom
`income Ho490bolds at an
(4) of the three M- bedroom
w Income House}i"__at an
(b) In Phass l 2, of twenty f _,2s) newly constructed
Rental Units dh`,'1 mately fifteen (14) rehabilitated
Rental Units, 26*R' Ix txf„ all unit ill be available for
Extremely Low ItY(xlne H°ds6holds aric?=?he remaining for
:. .
V.;,et?u-b.w. Income FIQ aseholdss .,Affort _ le Rent. With
aspect to. number o+I bedramse final "distribution of
Dental Uni# Very Lave°eome Hous ids and Extremely
o;_Income=Households=I1 be subject to the approval of
the k'cncv.,i eutive Dire&&"
lrumr5eli Locatioq end (Zuali tl€Affvrdable For-Sale Units. Section 402.1 of the
DDA i's"- by deleted i6 replaced n4 is entirety and with the following:
"Numljer,, LocattOtt:,,and Quality of Affordable For-Sale
Units. least ond=(1) of the Housing Units developed on
each of th_three (3) separate lots constituting Phase FS, the
€F;or-Sale:rtion of the Development, but up to a total of five
for_...I pits, shall be sold to Moderate Income Households,
at` :# }prices set forth in Section 402.2 hereof, i.e., the
Afforble For-Sale Units. The location of the Affordable
For-Sale Units within the For-Sale Portion of the Project will
be subject to the reasonable approval of the Agency Executive
Director pursuant to applicable laws and regulations. The
Developer covenants and agrees that the workmanship,
quality of materials, and costs of construction for and the
amenities, and physical features of each and all of the
Affordable For-Sale Units shall be equal to, and under no
circumstances or conditions less desirable than, all other
Housing Units in the For-Sale Portion of the Project.
3
Exhibit 3
DOCSOC/ 1481239x3/200272-0001
80A-210
(a) The Developer will be constructing
several models, plans, or types of Housing Units in the For-
Sale Portion of the Project. All of the Affordable For-Sale
Units will be (3) three-bedroom Housing Units. The exact
units to be designated as affordable will be subject to Agency
approval. The Developer covenants and agrees that all
Affordable For-Sale Units in all respects shall be the
same/comparable in terms of quality of construction,
amenities, materials, design, etc. as the Housing Units of the
same size and model that are designed, constructed, and sold
on the open market.
(b) The Age
buyer of a market Housing Unit
upgrades or improvements
purchase price for a Housin;#?'
and thus not necessarily,.Jfi le
..
Affordable For-Sale Units ft p(
acknowledgment modifies b%
obligation to pfovide first quatif
as described cove '' ..
ledges that a
3 e1ebf aid pay for
e-not incliYe3::in the
of the same°' :_and model
in a correspond
ping in the foregoi
-ns the'D veloper's
i "ie For-Sale Urifts
9. DDA Otherwise Unc
conditions of the DDA shall remain in
4
Exhibit 3
DOCSOC/1481239v3/200272-0001
as expro! Y set forth herein, all terms and
et, unchaigisd by this First Amendment.
8OA-211
IN WITNESS WHEREOF, the parties hereto have signed this First Amendment to the
Disposition and Development Agreement as of the date set forth above.
COMMUNITY REDEVELOPMENT AGENCY
ATTEST: OF THE CITY OF SANTA ANA, a public body,
corporate and politic
Director
By.
Lisa E. Storck
Assistant General Counsel
ATIQN DISTRICT, LLC,
liability company
By:
Its:
s
Exhibit 3
DOCSOC/ 1481239v3/200272-0001
8OA-212
EXHIBIT 1
DOCSOC/1481239v3/200272-0001
[Insert new Scope of Development]
EXHIBIT 1-1
8OA-213
EXHIBIT 2
[Insert new Site Map]
EXHIBIT 2-1
DOCSOC/1481239v3/200272-0001
8OA-214
SCOPE OF DEVELOPMENT
PHASE FS:
Proiect Description
Phase FS consists of approximately 24 for-sale single family homes including a combination of
attached row homes and single family detached homes. The development will be constructed on
approximately 1.57 acres on three scattered sites identified on the Site Map as "Lot B," "Lot F,"
and "Lot 4." Up to five units total with a minimum of one unit on each of Lots B, F and will be
reserved to be affordable to a Moderate Income homebuyer. The Moderate Income units will be
deed restricted for affordability to qualified homebuyers.
Phase FS is generally designed as 2 story row homes using at-grade wood frame construction
with all parking provided on site in detached garage structures and 2 story single family detached
homes using at-grade wood frame construction with all parking provided on site in detached
garage structures. Parking is provided to satisfy requirements of the Transit Zoning Code.
Additional Properties
911 Brown, 604, and 602 E. Fifth, 409 and 411 Minter, and 812 E. Santa Ana have been
identified as Additional Properties with respect to Phase FS. Should the Agency acquire or gain
control of any or all of these parcels within the timeframe contemplated by the Agreement,
development would be expanded to include up to an additional 17 residential units (including
code required parking) on by expanding the Phase FS design concept to the Additional
Properties.
Signs
All signage on the premises shall be designed to meet applicable zoning codes.
Landscaping
Project landscaping shall be designed to maximize opportunities for on-site storm water
detention in areas not utilized for buildings, driveways and parking. Landscape elements may
include planters, terraces, trees, decorative walls, screenings and paving elements. Planted areas
will be equipped with permanent water sprinkler systems to ensure proper maintenance. In
addition to landscaping, common open space is to include amenities such as barbeques, benches
and/or enhanced paving, where physically feasible. Final landscape plan is subject to Agency
review and approval.
8OA-215
Utilities/Public Improvements
Developer shall be responsible for utility relocation or installation on the premises and hookups
to sewers, drains, water and gas distribution lines, electric, telephone and CATV lines, and for
hookup to all other public utility lines. Phase FS will include curb, gutter and sidewalk
replacement around the periphery of the project site where needed and all necessary dedications
and improvements to establish 17" x 17" comer cutoffs and wheelchair ramps at street
intersections. Phase FS shall also include installation of any needed water laterals as well as
sewer improvements as required by the Land Use Approvals.
Sustainability
Phase FS shall be designed to achieve a Certified LEED level of design and construction as
established by the US Green Building Council LEED for Homes program.
The LEED for Home program will insure: Indoor Environmental Quality -- the homes are
designed to maximize fresh air indoors and minimize exposure to toxins and pollutants; Energy
Efficiency - the homes will use less energy through the life of a house; Water Efficiency -
homes will use innovative strategies to reduce a home's water use and to find creative ways to
reuse water; Site Selection - the homes are close to schools, shopping, work and transit; Site
Development - homes will avoid destructive construction practices and have landscaping and
other elements that protect the land where the home sits; Materials Selection - homes will use
responsibly obtained materials everywhere possible; Residents' Awareness - homes will stands
as an example to the community of a well-built home and encourages others to live the same;
and Innovation - innovations will be used to increase a home's performance, taking into account
local and regional needs and promoting durability for a long-lasting, comfortable home.
Included Features
• Stainless steel under-counter kitchen sink
• Tile kitchen countertops
Kitchen • Delta faucet or equal
• Phone line
• 1/3 hp garbage disposal
Appliances . Whirlpool Stainless Steel/Black package
8OA-216
• Standard HVAC system
• Schlage interior chrome hardware or equal
Throughout • Dual glazed Low-E windows
• Standard craftsmen style maple cabinets throughout or equal
• 12x12 tile at entry
• Energy-efficient water heater
Garage /Exterior • Rain gutters at front
• Standard garage door openers with remotes
Family Room • Phone /data & cable lines
Secondary Bedrooms • Phone /data & cable lines
Bath • Fiberglass tub/shower combo
• Culture marble in vanity
8OA-217
PHASE R-1:
Protect Description
Phase R-1 consists of 74 multi-family residential units designed to provide affordable rental
housing for families, with one unit reserved for a full-time, on-site property manager. The
development will be constructed on approximately 2.44 acres on the block bounded by Santa
Ana Boulevard, Lacy Street, Sixth Street, and Minter Street. All units in Phase R-1 will have
long term affordability covenants restricting tenancy to qualifying households.
In addition to the residential units, the project includes on-site management offices, interior
resident community space and ground floor retail on the corner of Lacy and Sixth Streets. A
Portion of the community space may be made available for child care facilities consistent with
Section 305.3 of the Agreement.
The project is designed with an interior, at-grade parking podium that is wrapped with two-story
townhomes along the majority of the street frontage. Additional townhome units are arranged
atop the podium around interior courtyard spaces.
The project will include 23 3-Bedroom and 51 2-Bedroom units. Residential parking will be
located within the at-grade podium. Guest and retail parking is provided on site at grade along
Sixth Street. All parking is provided on site in ratios that satisfy the requirements of the Transit
Zoning Code.
Segura Parcels/Additional Prover
The Segura Parcels have been included in the Phase R-1 Conceptual Site Plan. The only
Additional Property in Phase R-1 is identified as 607 E. Sixth Street. Should the Agency acquire
this parcel within the timeframe contemplated by the Agreement, the parking and site
landscaping may be reconfigured to integrate such Additional Property into the Site Plan.
Overall development program and parking ratios would not be affected by this reconfiguration.
aim
All signage on the premises shall be designed to meet applicable zoning codes.
Landscaping
Project landscaping shall be designed to maximize opportunities for on-site stormwater detention
in areas not utilized for buildings, driveways and parking. Landscape elements may include
planters, terraces, trees, decorative walls, screenings, barbeques, benches, and paving elements.
Planted areas will be equipped with permanent water sprinkler systems. Final landscape/outdoor
amenity plan will be subject to Agency review and approval.
8OA-218
Utilities/Public Improvements
Phase R-1 will include utility connections and hookups to sewers, drains, water and gas
distribution lines, electric and telephone lines. The project will include curb, gutter and sidewalk
replacement around the periphery of the project site where needed and all necessary dedications
and improvements to establish 17" x 17" corner cutoffs and wheelchair ramps at street
intersections. Phase R-1 may also include sewer, street, and water main improvements as
required by project Land Use Entitlements.
Amenities
Phase R-1 will have an on-site resident manager and property management offices on site. It
will include a community room and on-site laundry facilities. Multiple courtyard areas will be
provided as common outdoor space atop the parking podium. Ground floor units will have
stoop/porch areas oriented to the street.
Public Art -- See Section 305.2.
Child Care Facilities -- See Section 305.3.
Retail Spaces -- See Section 305.4.
Sustainability
Phase R-1 will include several key sustainability features to ensure efficient use of natural
resources. These may include use of water efficient fixtures in bathrooms and kitchens, use of
low or no-VOC primers, sealants and adhesives, use of natural ventilation where feasible and/or
use of recycled building materials.
8OA-219
PHASE R-2:
Proiect Description
Phase R-2 consists of approximately 39 residential units including approximately 25 new
construction units and approximately 14 units which will be rehabilitated from existing structures
either currently located or to be relocated on to the project sites. Phase R-2 will be designed to
provide affordable rental housing for families, with one unit reserved for a full-time, on-site
property manager. The unit mix for the 25 new construction units includes 15 2-bedroom and 10
3-bedroom units. The units to be rehabilitated include a range of 1-4 Bedroom units which may
either be rehabilitated with existing floorplans or reconfigured into alternate unit types.
Phase R-2 will be constructed on approximately 2.49 acres-on six scattered sites identified on the
Site Map as "Lot 2," "Lot 3," "Lot A," "Lot C," "Lot D," and "Lot E." All units in Phase R-2
will have long term affordability covenants restricting tenancy to qualifying households.
The new construction component of Phase R-2 is designed as at-grade wood frame construction
including a mix of two-story attached townhomes and single story flats. Parking for the new
construction component of R-2 is provided in a combination of detached and "tuck under"
garages in ratios that satisfy the requirements of the Transit Zoning Code. The rehabilitation
component of Phase R-2 will include rehabilitation of existing single family and multifamily
residential structures and will provide either open parking or at grade parking garages as space
permits on site and/or per municipal code standards, as applicable.
Additional Properties
609 E. Fifth Street has been identified as an Additional Property with respect to Phase R-2.
Sim
All signage on the premises shall be designed to meet applicable zoning codes.
Landscaping
Project landscaping shall be designed to maximize opportunities for on-site stormwater detention
in areas not utilized for buildings, driveways and parking. Landscape elements may include
planters, terraces, trees, decorative walls, screenings, barbeques, benches, and paving elements.
Planted areas will be equipped with permanent water sprinkler systems to ensure proper
maintenance. Final landscape/outdoor amenity plan will be subject to Agency review and
approval.
Utilities/Public Improvements
Project will include utility connections and hookups to sewers, drains, water and gas distribution
lines, electric and telephone lines. The project will include curb, gutter and sidewalk
replacement around the periphery of the project site where needed and all necessary dedications
8OA-220
and improvements to establish 17" x 17" corner cutoffs and wheelchair ramps at street
intersections. Phase R-2 may also include sewer, street, and water main improvements as
required by project Land Use Approvals.
Amenities
The new construction component of Phase R-2 will contain two on-site laundry facilities (one for
each of the two new construction sites), and individual porches/patios for private open space as
well as landscaped and hardscaped common open space areas on each of the three sites. All
Phase R-2 residents will have access to the community room and any programming and services
provided in Phase R-l. The rehabilitated units will be provided with either individual or shared
washer/dryer units subject to Agency staff's approval. The properties to be rehabilitated will be
landscaped and provided with patios/porches, as space and/or municipal standards permit,
subject to plans to be approved by the City and Agency. Public art will be provided either on
site or off site consistent with the terms in the Agreement.
Sustainability
The project will include several key sustainability features to ensure efficient use of natural
resources. These may include use of water efficient fixtures in bathrooms and kitchens, use of
low or no-VOC primers, sealants and adhesives, use of natural ventilation where feasible and/or
use of recycled building materials.
80A-221
SITE MAP AND PROJECT PHASING
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For Sale
80A-222
LACY HOUSING FUND PROGRAM
The Community Redevelopment Agency of the City of Santa Ana (Agency) has designed
the Lacy Housing Fund (Program) to assist owners of rental properties and owner
occupants of detached single family homes to keep their homes attractive and well
maintained. In addition, funds may be used for payment of fees associated with
nomination to the California Register of Historical Resources (CRHR) or the Santa Ana
Register of Historic Properties (SARHP) and Mills Act Property Tax Abatement Program.
This Program is designed and implemented in accordance with the State laws that
govern its funding source. Should those laws change, the Program may be modified so
as to insure continued compliance with the law. Continued operation of the Program is
dependent upon availability of funds. The maximum loan amount is $25,000. The
amount eligible for the grant funds will be in addition to the maximum loan. Funding
will be prioritized on a fiscal year by 75% to be expended for homes 50 years and older
and 25% for homes less than 50 years old.
Eligibility Reauirements
Borrowers must be the owners of detached single family homes located within the Lacy
Neighborhood (Attachment 1) in the City of Santa Ana. These properties may be either
owner occupied or renter occupied. All owners of record must have a credit score of at
least 580, and must be current on all loans and taxes related to the property. Owners
must not have had a bankruptcy or foreclosure within the last two years.
Total debt on the property, including the exterior rehabilitation loan, cannot exceed 95
percent of its appraised, after rehabilitation value. There can be no more than one loan
superior to the Agency's rehabilitation loan. Only one loan and grant will be provided to
a property under this program.
Borrowers must agree to conform to all applicable Federal and State lead-based paint
and asbestos regulations. All Notices of Violation issued by the City must be corrected
by the time the Agency approved repairs are completed.
For owner occupants, total annual income of the household, meaning all persons using
the home as their primary residence, cannot exceed 120 percent of the area median
income as determined by the California Department of Housing and Community
Development. The following table was effective as of June 17, 2010:
Household Size Maximum
Income Household
Size Maximum
Income
1 Person $73,250 5 Persons $113,000
2 Persons $83,700 6 Persons $121,400
3 Persons $94,200 7 Persons $129,750
Page 1 of 3
Exhibit 4
80A-223
Household Size Maximum
Income Household
Size Maximum
Income
4 Persons $104,650 8 Persons $138,150
For rental properties, owners must demonstrate by means of evidence acceptable to
the Agency that at the time of the owner's application, all tenant households had
annual incomes at or below 120 percent of the area median income. All new tenants
must be income certified prior to move-in. Rental units must not be over-crowded. For
purposes of determining over-crowded there should be no more than 2 persons per
bedroom plus 1 (eg. 2 bedroom unit cannot have more than 5 occupants).
Owners must agree to restrict rents to those affordable to low income households (80%
AMI), and to do so for a period of ten years commencing with the loan date. As of
June 17, 2010 allowable rents were as follows:
Bedroom Size Allowable Rent
Studio $916
One Bedroom $981
Two Bedrooms $1,178
Three Bedrooms $1,308
Four Bedrooms $1,413
For owners who choose to rent their homes after the loan has been approved and
recorded, the ten years will still commence with the loan date.
Owners must agree to comply with all applicable Federal and State anti-discrimination
laws.
Use of Loan Proceeds
The loan may be used for exterior repairs, replacements and improvements, including,
but not limited to, the following categories:
• non-conforming fences that are visible from the street
• front yard landscaping and irrigation systems
• damaged or deteriorated roof
• flashing, sheathing, eaves, rafter tails, fascia board, gutters and downspouts
• exterior walls, trim, exterior doors, screens and windows
• damaged or deteriorated garage doors and garage door openers
• damaged or deteriorated driveways and walkways
• damaged or deteriorated exterior lighting
• new security lighting
Page 2 of 3
Exhibit 4
80A-224
All work must be performed by licensed general contractors who meet the City's
licensing and insurance requirements, and who have not been debarred by the U.S.
Department of Housing and Urban Development. All work must be performed in
accordance with applicable federal, state and local requirements.
In addition to repairs, loan proceeds may be used to pay for certain costs normally
associated with the loan process. These include but are not necessarily limited to the
cost of appraisals, title reports, credit checks, flood certificates, underwriting fees,
document preparation, and warehousing.
The funds may also be used for the payment of fees associated with nomination of a
property in the Lacy Neighborhood for listing on either the CRHR or the SARHP. An
owner may apply for funding from the Lacy Housing Fund Program to finance payment
of the nomination fees. If applying for such funding, the owner will be subject to all
requirements of the Lacy Housing Fund.
Funds may also be used to pay for fees associated with the application for Mills Act
Property Tax Abatement Program. An owner may apply for funding from the Lacy
Housing Fund to finance payment of the application fees. If applying for such funding,
the owner would be subject to all requirements of the Lacy Housing Fund.
Interest Rates and Repayment
Exterior repair loans will have a zero percent interest rate, and payments will be
deferred for thirty years or until the property is sold. The loans will be due and payable
at the end of the thirty years, but payment may be deferred for borrowers who are
unable to pay them off. These exterior repair loans are not assumable.
Rental property owners who fail to comply with the ten year affordability requirement or
to abide by all applicable Federal and State anti-discrimination laws will be immediately
required to repay the loan. Owners must correct all Notices of Violation prior to the
time the Agency loan is secured.
Funds used for paying fees associated with nomination of their property for listing on
the CRHR or the SARHP will be a grant. In addition, the fees associated with the
application for Mills Act Property Tax Abatement Program will be a grant. Grant funds
under this program will be payable directly from the Agency to the City for an approved
application.
Page 3 of 3
Exhibit 4
80A-225
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made and effective this day of April, 2011
(the "Effective Date") by and among the Santa Ana Station District, LLC, a California limited
liability company, the Related Companies of California, LLC, a California limited liability
company, and Griffin Realty Corporation, an affiliated company of Griffin Holdings
(collectively, the "Developer"); the Friends of Lacy Historic Neighborhood, an unincorporated
association ("FOL" ); Debra McEwen, an individual; the City of Santa Ana, a municipal
corporation, and the City Council of the City of Santa Ana (collectively, the "City"); and the
Community Redevelopment Agency of the City of Santa Ana, a public body, corporate and
politic, and the Board of the Community Redevelopment Agency of the City of Santa Ana
(collectively, the "Agency"). Developer, FOL, the City and the Agency are collectively referred
to herein as the "Parties" and individually as a "Party." FOL is sometimes referred to herein as
the "Petitioner." The City and the Agency are sometimes collectively referred to herein as the
"Respondents." The Developer is sometimes referred to herein as the "Real Parties in
Interest."
RECITALS
A. The Developer is the developer of that certain redevelopment project commonly known
as the "Station District Project" located on approximately six (6) acres of real property
in the City of Santa Ana, which consists of unimproved and improved lots with
residential uses. The parcels which make up the Station District Project are identified by
the phases in which they will be constructed on Exhibit "A" hereto (the "Site Map").
The Site Map also identifies the boundaries of the area commonly known as the "Station
District." The Station District Project will construct affordable rental housing that will
be available to and occupied by persons and families of very low and extremely low
income, affordable for-sale housing that will be available to and occupied by persons and
families of moderate income, and market rate for-sale housing that will be available to all
buyers, pursuant and subject to certain terms and conditions set forth in a Disposition and
Development Agreement between the Agency and the Developer referenced below in
paragraph E, the scope of which may be revised to comply with the terms of this
Agreement.
B. The Station District Project is located within the area of the City subject to the Transit
Zoning Code ("TZC") in the central urban core of the City. The TZC area comprises
over 100 blocks and 450 acres between First Street, Flower Street, Civic Center Drive,
Grand Avenue and Interstate 5 (I-5) and, more specifically, in the area west of I-5, north
of First Street, and between Grand Avenue and Flower Street and south of Civic Center
Drive, as shown on Exhibit "B" hereto (the "TZC Project Area").
C. The Station District Project is also within an area commonly known as the "Lacy
Neighborhood," which is bound by Civic Center Avenue on the north, First Street on the
south, Main Street on the west and Santiago Street on the east, as shown on Exhibit "C"
hereto (the "Lacy Neighborhood").
80A-226
D. On or about June 7, 2010, the City Council of the City ("City Council") certified the
Transit Zoning Code (SD 84A and SD 84B) Environmental Impact Report ("EIR") (SCH
No. 2006071100) prepared by the City under the California Environmental Quality Act
("CEQA", Public Resources Code § 21000, et seq.), which analyzed the environmental
impacts of the TZC at a programmatic level and the Station District Project at a project-
specific level. On or about June 7, 2010, the City Council also adopted certain
resolutions and ordinances necessary to implement the TZC.
E. On or about June 7, 2010, the Board of the Agency ("Board") approved the Disposition
and Development Agreement ("DDA"), attached hereto as Exhibit "G", between the
Agency and the Developer for development of the Station District Project by Resolution
No. CRA 2010-002, and the City Council consented to the approval of the DDA by
Resolution No. 2010-027.
Certain parcels within the Station District and the Lacy Neighborhood, on the northeast
corner of Santa Ana Boulevard and Garfield Street (APN 398-303-04, APN 398-303-05,
APN 398-303-06, and APN 398-303-07), may be developed for special needs affordable
housing (the "Mercy House Project") or another form of affordable housing or other
use.
G. The City has identified an approximately 1.5 acre site within the Station District and the
Lacy Neighborhood for potential future park/open space uses ("Potential Park Site").
The site is bound by Sixth Street on the north, Fifth Street on the south, Porter Street on
the west and Lacy Street on the east, as shown on the Site Map (Exhibit "A").
H. On July 8, 2010, FOL filed a Petition for Writ of Mandamus against the City and Agency
challenging the certification of the EIR and approval of the TZC, the Station District
Project and the related purchase and demolition of certain structures in the Lacy
Neighborhood in Orange County Superior Court Case No. 30-2010-00388033-CU-WM-
CXC (the "Litigation").
Financing of the affordable rental housing component of the Station District Project is
dependent on receipt of an allocation of federal low income tax credits granted pursuant
to section 42 of the Internal Revenue Code and/or, if applicable, state tax credits pursuant
to California Revenue and Taxation Code Sections 17057.5, 17058, 23610.4 and 23610.5
and California Health & Safety Code Section 50199, et seq. ("Tax Credits"), as allocated
by the California Tax Credit Allocation Committee ("TCAC"). TCAC will hold two
application cycles for awarding Tax Credits in 2011, unless circumstances warrant a
reduction in the number of cycles. The Developer has submitted an application for the
first funding cycle, and an award may be issued, if at all, on or about June 8, 2011 ("First
Round"). Only rental housing projects are eligible for Tax Credits. Tax Credits can be
allocated to new construction projects or existing properties undergoing rehabilitation.
Tax Credits are allocated on a competitive basis so that those meeting the highest housing
priorities and public policy objectives, as determined by TCAC, have first access to Tax
Credits.
2
80A-227
The Parties have mutually agreed that settlement is the most efficient and practical way to
resolve the Litigation. Without any Party admitting or denying the truthfulness of any of
the allegations or claims raised between and among the Parties and without accepting any
liability arising out of such claims, the Parties now intend to settle the Litigation in its
entirety on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits of this Agreement and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties hereby agree as follows:
Revised Station District Project FOL Settlement Pronerty Plan and Entitlements
1.1. Revised Station District Proiect. Developer hereby agrees to construct the Station
District Project consistent with the development, rehabilitations and demolitions
of the specific properties identified on the "FOL Settlement Property Plan",
attached hereto as Exhibit "D" and fully incorporated by this reference, as further
described on Exhibit "E" ("FOL Settlement Property Descriptions"), attached
hereto and fully incorporated by this reference, pursuant and subject to the terms
and conditions set forth in this Agreement and any terms and conditions set forth
in the DDA, the scope of which will be revised to comply with the terms of this
Agreement ("the Revised DDA"). Development of the Station District consistent
with the FOL Settlement Property Plan and FOL Settlement Property Descriptions
shall be known as the "Revised Station District Project".
1.2. Project Phases. Pursuant to the terms of the DDA or the Revised DDA, the
project site will be conveyed by the Agency to the Developer, and constructed, in
three separate, but potentially concurrent, phases. Phase R-1 and Phase R-2 shall
both consist of affordable rental housing that is available to and occupied by
persons and families of very low income and extremely low income. Phase FS
shall consist of for-sale housing, a portion of which shall be available and
occupied by persons and families of moderate income. The phases of the Revised
Station District Project are shown on the Site Map (Exhibit "A") attached hereto
and fully incorporated by this reference.
1.3. Construction of Phase R-1 and Phase R-2 Subject to Tax Credit Financing.
Construction of Phase R-1 and Phase R-2 is subject to receipt of Tax Credits, as
allocated by the TCAC. Tax Credits for Phase R-1 and Phase R-2 will be
solicited by the Developer separately and will be subject to all terms and
conditions set forth in the DDA and the Revised DDA. If the Developer is
awarded Tax Credits in the First Round for Phase R-1, the Developer agrees that
it shall use good faith efforts to apply for Tax Credits for Phase R-2 by July 6,
2011 for the second round of 2011 TCAC funding. If Tax Credits are not
awarded in the First Round for Phase R-1, the Developer agrees that it shall use
good faith efforts to apply for Tax Credits for Phase R-2 in the next available
round of funding following the round in which Tax Credits are awarded for Phase
R-1.
3
80A-228
1.4. Subject Properties in the Station District. Within the Station District, the
properties listed on the FOL Settlement Property Descriptions (Exhibit "E") are
the properties that the Parties agree will be either demolished, rehabilitated in
place, or moved and rehabilitated as specifically set forth in Section 1 herein, and
as shown on the FOL Settlement Property Plan. These properties are sometimes
referred to herein using the identification (ID) number by which they are listed on
Exhibit "E", e.g., "Property No. 1."
1.5. Rehabilitation and Development of Specific Properties.
1.5.1. Properties Nos. IA, 1B, 2, 313, 3C, 4, 5, 6A, 8, and 13, as identified on
Exhibit "E", will not be demolished and will instead be rehabilitated by
the Developer to the standards set forth in Sections 1.5.2 and 1.5.3 below
as part of Phase R-2 of the Revised Station District Project. The Parties
acknowledge and agree that Property No. 4, currently located at 610-612
E. Fifth Street, may be relocated to 511 E. Fifth Street immediately
following the Effective Date of this Agreement but will be rehabilitated as
part of Phase R-2 of the Revised Station District Project. The Parties
further acknowledge and agree that Property No. 13, currently located at
613 E. Sixth Street, may be relocated to 602 E. Sixth Street immediately
following the Effective Date of this Agreement but will be rehabilitated as
part of Phase R-2 of the Revised Station District Project.
1.5.2. Standards for Rehabilitation of Eligible and Listed Properties. The Parties
agree that Properties Nos. IA, 2, 3B, 4, 5, and 6A will be rehabilitated by
the Developer consistent with the "Secretary of the Interior's Standards for
the Treatment of Historic Properties with Guidelines for Preserving,
Rehabilitating Restoring and Reconstructing Historic Buildings" (36 Code
of Federal Regulations § 67.2) ("Secretary's Standards"). As defined in
the Secretary's Standards, "rehabilitation" means "the process of returning
a building or buildings to a state of utility, through repair or alteration,
which makes possible an efficient use while preserving those portions and
features of the building and its site and environment which are significant
to its historic, architectural, and cultural values as determined by the
Secretary." The Parties agree that "rehabilitation," as defined in the
Secretary's Standards and as used in this Subsection 1.5.2, not only
incorporates the retention of features that convey historic character but
also accommodates alterations and additions to facilitate continuing or
new uses. Any structure set forth in Section 1.5.1 above and identified on
the FOL Settlement Property Plan and the FOL Settlement Property
Descriptions for "rehabilitation" which is listed on the SARHP will also
be subject to the "Historic Structures Design Guidelines" set forth in
Chapter 13 of the "City of Santa Ana's Design Guidelines and
Development Standards" (the "Citywide Design Guidelines") and all
other applicable provisions of the City of Santa Ana Municipal Code
("Municipal Code").
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80A-229
1.5.3. Standards for Rehabilitation of Ineligible Properties. The Parties agree
that Properties Nos. 113, 3C, 8 and 13 will be developed by the Developer
in compliance with the either the "Single Family and Two-Family
Residential Guidelines" or the "Multiple Family Residential Guidelines"
set forth in Chapters 6 and 7, respectively, of the Citywide Design
Guidelines and all other applicable provisions of the Municipal Code. The
Parties agree that FOL may provide information to the Agency in writing
regarding reduced-cost solutions for implementing these rehabilitations,
which the Agency will provide to the Developer, and the Developer will
implement if the Developer reasonably determines that such solutions
have no adverse consequences related to financing, construction and
development of the Revised Station District Project.
1.6. Timing of Rehabilitation. The Developer will initiate rehabilitation of the
properties designated for rehabilitation as part of Phase R-2 of the Revised Station
District Project within one hundred and eighty (180) days of the execution of any
Tax Credit Regulatory Agreement by the Developer as a requirement of receiving
the Tax Credits for Phase R-2 of the Revised Station District Project. Prior to
initiation of rehabilitation, the Agency will continue to maintain the properties
designated for rehabilitation according to current practices, policies and standards.
1.7. Demolition of Specific Properties. As shown on the FOL Settlement Property
Plan and as more specifically described in the FOL Settlement Property
Descriptions, the Parties agree that Properties Nos. 3A, 613, 7, 9, 10, 11, 12, 13A,
14, 15, 16, 17, and 18 may be demolished, as specifically set forth below:
1.7.1. Properties No. 7. 12, 13A, 14, 15, 17, and 18. The Parties agree that
demolition of Properties Nos. 7, 12, 13A, 14, 15, 17, and 18 may occur as
soon as thirty (30) days after the Effective Date of this Agreement, or
upon receipt of a Tax Credit award for Phase R-1, whichever comes first,
or as otherwise needed to clear the parcels to permit receipt of future Tax
Credit awards and/or other financing.
1.7.2. Properties No. 3A and 6B. The Parties agree that demolition of Properties
No. 3A and 6B will occur as part of Phase R-2 of the Revised Station
District Project, and will not occur until the Developer is awarded Tax
Credits for Phase R-2.
1.7.3. Properties No. 9, 10, and 11. The Parties agree that so long as the Agency
and/or the City owns Properties Nos. 9, 10, and 11, those properties, as
well as structures on other parcels that the City or Agency may acquire on
the Potential Park Site, may be demolished if and when the City formally
designates any such parcel, or the entire Potential Park Site, for park/open
space uses. As provided in Section 2, the Parties do not and will not
contest said City approval.
5
80A-230
1.7.4. Property No. 16. The Parties agree that demolition of Property No. 16
("Minter Court") is subject to the specific provisions set forth in Section 3
of this Agreement.
1.7.5. The Parties acknowledge and agree that the Agency may initiate the
bidding process on a demolition contract for any of the Properties
identified in this Section 1.7 immediately following the Effective Date of
this Agreement, and prior to the award of Tax Credits for Phase R-1, to
ensure that the parcels will be cleared in compliance with all requirements
for receiving Tax Credits or other financing. It is the intent of the Parties
that the Properties identified in this Section 1.7 be demolished irrespective
of the eligibility determination that may be made in the Historic Survey to
be prepared under Section 4 of this Agreement.
1.8. Potential Demolition of Specific Additional Properties. The Parties acknowledge
that the Agency may acquire Property No. 19 and Property No. 20, which are
currently owned by third parties, and that if acquired, the structures on those
parcels may be demolished irrespective of the eligibility determination that may
be made in the Historic Survey to be prepared under Section 4 of this Agreement.
1.9. Submittal of Revised DDA. The Developer and the Agency will prepare and
submit the Revised DDA for consideration by the Board as soon as possible after
the Effective Date of this Agreement.
1.10. City and Agency Processing of the Revised DDA. The City and the Agency shall
consider in good faith and process the Revised DDA as quickly permitted by law.
1.11. Support of Revised Station District Project. Petitioner FOL agrees not to oppose,
challenge or undermine, and not to advocate that any members of the community,
including any members of FOL, oppose, challenge or undermine the Revised
DDA or the Revised Station District Project by referendum, initiative or
otherwise. Petitioner FOL shall not, directly or indirectly, (i) commence any new
litigation or any other judicial proceeding of any kind, nature or description
against the Developer, the City, the Agency or any other Party in any way relating
to the Revised DDA or the Revised Station District Project, or (ii) assert any
claim, argument, appeal, demand, request or statement in opposition to the
Revised Station District Project in connection with any administrative or
legislative proceeding held with respect to the Revised DDA or the Revised
Station District Project, or (iii) cooperate in any efforts to do any of the foregoing.
Without limiting the generality of the foregoing, Petitioner FOL shall not prepare
or submit any oral or written communication or appear at any public hearing in
opposition to the Revised DDA, the Revised Station District Project, or any
discretionary or ministerial governmental approval pertaining to the Revised
Station District Project.
1.12. Covenant Not to Sue on Revised Station District Project. Petitioner FOL and each
of its members and Debra McEwen covenant and agree that they shall forever
6
80A-231
refrain from instituting, prosecuting, maintaining, financing, proceeding on,
participating in, encouraging, supporting, or advising or recommending to be
commenced or prosecuted, any lawsuit, action or proceeding (judicial, arbitral, or
administrative) which arises out of, or is or may be, in whole or in part, based
upon, connected with or related to any Released Claims (as hereinafter defined)
set forth in Section 9. The Parties acknowledge and agree that this Agreement is a
complete defense to any lawsuit, action or proceeding which may be instituted by
or on behalf of Petitioner FOL or Debra McEwen at any time and in which any
Released Claims are or may be asserted. Debra McEwen and Petitioner FOL
agrees that each of them, and their agents, attorneys, officers, and members, shall
not directly or indirectly challenge, impede, or contest, by or in connection with,
participating in, encouraging, supporting, or advising or recommending to be
commenced or prosecuted any lawsuit, action or proceeding (judicial, arbitral, or
administrative) relating to the approval, entitlement, implementation,
construction, or funding of the Revised Station District Project, or any activities
of the City or Agency related to carrying out the Revised Station District Project;
and they shall not urge other persons to do so, or cooperate in any such efforts by
other persons.
2. Covenant Not to Sue on the Potential Park Site. Petitioner FOL and Debra McEwen
agree that the City and Agency may demolish Properties Nos. 9, 10 and 11 for park/open
space uses and that the City or the Agency may acquire other properties located on the
Potential Park Site identified on Exhibit "A" for park/open space uses. Petitioner FOL
and each of its members and Debra McEwen covenant and agree that they shall forever
refrain from instituting, prosecuting, maintaining, financing, proceeding on, participating
in, encouraging, supporting, or advising or recommending to be commenced or
prosecuted, any lawsuit, action or proceeding (judicial, arbitral, or administrative) which
arises out of, or is or may be, in whole or in part, based upon, connected with or related to
future demolition of structures or acquisition of property on the Potential Park Site for
park/open space uses. Petitioner FOL and each of its members and Debra McEwen shall
not, directly or indirectly, (i) commence any new litigation or any other judicial
proceeding of any kind, nature or description against the City, the Agency or any other
Party in any way relating to the use of the Potential Park Site for park/open space uses, or
(ii) assert any claim, argument, appeal, demand, request or statement in opposition to any
demolition or acquisition of property on the Potential Park Site in connection with any
administrative or legislative proceeding held with respect to the use of the Potential Park
Site for park/open space uses, or (iii) cooperate in any efforts to do any of the foregoing.
Without limiting the generality of the foregoing, Petitioner FOL shall not prepare or
submit any oral or written communication or appear at any public hearing in opposition
to any demolition or acquisition of property on the Potential Park Site for park/open
space uses, or any discretionary or ministerial governmental approval pertaining to any
demolition or acquisition of property on the Potential Park Site for park/open space uses.
3. Availability of 611 North Minter Court for Sale.
3.1. Immediately following the Effective Date of this Agreement, the Agency will act
with all reasonable expediency to offer the apartment court building located at
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80A-232
611 North Minter Court ("Minter Court"), identified as Property No. 16 in Exhibil
"E", for sale to any buyer ("Buyer") willing and able to relocate the structure(s)
off of the site designated as "Lot 1" on the FOL Settlement Property Plan (Exhibit
"D"). The Parties acknowledge and agree that, any party desiring to relocate
Minter Court must do so no later than May 15, 2011. Prior to said relocation, the
potential Buyer or other party desiring to relocate Minter Court must comply with
all legal requirements for purchase and relocation of the property, including all
applicable municipal and other laws. If by May 19, 2011, it appears that the
Developer is unlikely to receive an allocation of Tax Credits for Phase R-1 of the
Revised Station District Project in the First Round of 2011 funding, the City, the
Agency, and the Developer may decide to extend the deadline, and the Agency
will not demolish Minter Court until the expiration of that future timeftame. If
the Minter Court property is not sold and relocated by May 15, 2011, or by such
later date as the City, the Agency and the Developer may agree, the Parties agree
that Minter Court may be demolished immediately thereafter. If a Buyer requires
financial assistance related to the purchase of Minter Court, a Buyer may contact
the Agency, and the Agency will consider in good faith all available financing
options, including loan programs. Any financing provided by the Agency will
reduce the allocation of funds assigned to the Lacy Housing Fund by an equal
amount. In no event shall the consideration of financing options delay
demolition of Minter Court by the timeframes established in this paragraph 3.1.
3.2. The Parties acknowledge and agree that the Agency may initiate the bidding
process on a demolition contract for demolition of Minter Court concurrently with
offering Minter Court for sale to ensure that Lot 1 will be cleared prior to any
award of Tax Credits for Phase R-1.
3.3. Petitioner FOL covenants and agrees that it, and each of its members, shall
forever refrain from instituting, prosecuting, maintaining, financing, proceeding
on, participating in, encouraging, supporting, or advising or recommending to be
commenced or prosecuted, any lawsuit, action or proceeding (judicial, arbitral, or
administrative) which arises out of, or is or may be, in whole or in part, based
upon, connected with or related to bidding or approval of a demolition contract
for demolition of Minter Court.
4. Preparation of Historic Survey. The City will retain a cultural resource professional who
meets the Secretary of the Interior's Professional Qualifications Standards for
Architectural History to conduct a survey to determine the historic status and eligibility
for listing on either the California Register of Historical Resources ("CRHR") or the
Santa Ana Register of Historical Properties ("SARHP") of all residential properties
within the Lacy Neighborhood with a construction date prior to 1961 that have not been
surveyed within five (5) years of the commencement of the survey to be conducted
pursuant to this Section 4 ("Historic Survey"). The twenty-five (25) properties listed on
the FOL Settlement Property Descriptions (Exhibit "E") and subject to the terms of this
Agreement set forth in Exhibit "D" will therefore not be subject to the Historic Survey.
The Historic Survey will be initiated immediately upon the Effective Date of this
Agreement and the City will use best efforts to ensure that it is completed within one (1)
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year. The cultural resource professional conducting the survey will consult with the City
to ensure that the Historic Survey is conducted in a manner consistent with the Municipal
Code and City practice and procedure. The Historic Survey will be conducted as follows:
the selected cultural resource professional will conduct a "preliminary survey" of all
relevant properties to identify potentially eligible properties ("Preliminary Survey"). The
preliminary survey will be conducted on foot or by vehicle and will gather visual
information about all relevant properties. FOL and/or its members may provide
information relevant to the historic qualifications of any potentially eligible property that
will be surveyed as part of the Historic Survey within thirty (30) days of receiving notice
of the initiation of the Preliminary Survey. The results of the Preliminary Survey will be
documented with photographs and tabulated information, such as address; building type,
style, and integrity; and date of construction. All properties determined to be potentially
eligible, either by the aforementioned Preliminary Survey or by previous surveys
conducted within five (5) years of the commencement of the Historic Survey and
consistent with the standards set forth in Municipal Code Chapter 30 (Places of Historical
and Architectural Significance), will be subject to an "intensive-level" survey and will be
documented on both State of California Department of Parks and Recreation Historic
Resources Inventory Primary Record forms (DPR 523 A) and a Building, Structure and
Object Record (DPR 523 B). No forms will be prepared for properties that do not appear
to be eligible based on visual inspection, physical integrity, or information provided by
FOL. The findings of the survey will be summarized in a Survey Report, which will be
available for review at the City's Planning Department and provided to FOL. The Parties
agree to accept the determinations and conclusions of the Survey Report as of the time it
is prepared, understanding that some properties deemed "ineligible" may become
"eligible" with the passage of time.
5. Lacy Neighborhood Housing Fund. Upon the Effective Date of this Agreement, the
Agency will establish a $200,000 residential housing fund to encourage home owners in
the Lacy Neighborhood to re-invest in their properties (the "Lacy Housing Fund"). The
specific terms of the Lacy Housing Fund are attached hereto as Exhibit "F" and fully
incorporated by this reference. The Parties acknowledge and agree that the Lacy Housing
Fund would replace the $100,000 targeted residential loan program for the Lacy
Neighborhood approved by the Agency on June 7, 2010.
5.1. Amount. At the end of each fiscal year (June 30) for five years, beginning June
30, 2012, any funds that remain in the Lacy Housing Fund account will roll over
for use in the following fiscal year, such that at the beginning of each fiscal year
(July 1) the account will contain $200,000, and no more than $200,000. The
Agency will be responsible for ensuring that the account includes $200,000 at the
beginning of each fiscal year (July 1) for five years, beginning July 1, 2012. July
I, 2015 is the last date upon which the Agency shall be responsible for ensuring
that the fund contains $200,000.
5.2. Administration and Application Requirements. The Lacy Housing Fund will be
administered by the Agency and will be subject to all requirements set forth in
Exhibit "F", including income eligibility requirements.
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5.3. Availability of Funds for Payment of Fees for Nomination to CRHR or SARHP.
If any owner of property identified as eligible for listing by the Historic Survey in
the Lacy Neighborhood wishes to nominate his or her home(s) for listing on either
the CRHR or the SARHP, the owner may apply for a grant from the Lacy
Housing Fund to finance payment of the nomination fees. If applying for such
funding, the owner will be subject to all income eligibility requirements of the
Lacy Housing Fund. Qualified applicants will receive grants as long as funds are
available.
5.4. Availability of Funds for Payment of Application Fees for Mills Act Property Tax
Abatement Program If any owner of property in the Lacy Neighborhood wishes
to apply for the Mills Act Property Tax Abatement Program, the owner may apply
for a grant from the Lacy Housing Fund to finance payment of the application
fees. If applying for such funding, the owner would be subject to all income
eligibility requirements of the Lacy Housing Fund. Qualified applicants will
receive grants as long as funds are available.
5.5. Contingent on No Legislative Modification of Agency's Powers. Funding and
administration of the Lacy Housing Fund is expressly contingent on the absence
of any modification of the Agency's powers, by state or federal legislation or
otherwise, that precludes the Agency from performing its obligations under this
Section 5.
5.6. Marketing. The Agency will conduct marketing consistent with its existing
programs, including but not limited to, advertising to the Lacy Neighborhood
Association and posting on the Agency's website. FOL and its members are
encouraged to participate and assist in the marketing conducted for the Lacy
Housing Fund and may contact the Housing Manager of the Agency immediately
following the Effective Date of this Agreement to coordinate such participation.
6. Architectural Inspection and Salvage. The Agency will retain a qualified contractor to
conduct salvage prior to demolition of any residential structures identified in Section 1.7
of this Agreement that will be demolished as part of the Revised Station District Project
(i.e., Properties Nos. 3A, 613, 7, 12, 13A, 14, 15, 16, 17 and 18) and prior to demolition of
any residential structures on Properties 9, 10, 11 located on the Potential Park Site. The
Agency will provide the Santa Ana Historic Preservation Society with at least thirty (30)
days notice prior to the demolition of any property as part of the Revised Station District
Project or on the Potential Park Site to allow for architectural inspection prior to
demolition and an opportunity to give direction to the Housing Manager of the Agency as
to items worthy of salvage. The inspection to identify salvageable items and salvage
must be completed by the conclusion of the 30-day (or more) period as set forth in the
notice. The Parties agree that the Agency's contractor will remove all items identified as
worthy of salvage. The Parties agree that the Santa Ana Historic Preservation Society
and/or FOL and/or another third party will be responsible for relocation and storage of
any and all items salvaged by the contractor, and neither the Agency nor the City is
responsible relocation or storage of such items. If FOL or any of its members wish to be
present during inspection and/or salvage of the property to be demolished, FOL and/or its
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members will coordinate directly with Agency staff. The Parties acknowledge and agree
that inspection and salvage will take place during regular business hours on weekdays
(Monday through Friday, 8:00 A.M. to 5:00 P.M.) and that involvement in the inspection
and/or salvage process by FOL and/or its members will require FOL and/or its members
to be present during such times.
Notification Prior to Demolition of Structures in the Transit Zoning Code Project Area.
For eighteen (18) months following the Effective Date of this Agreement, the Agency
will use best efforts to mail or email notice of the Agency's intended demolition of
properties for redevelopment in the Lacy Neighborhood, other than those properties that
would be demolished pursuant to the Revised Station District Project, to FOL at least
fifteen (15) days prior to such approval of demolition. FOL and/or its members are
responsible for providing the Agency with the mailing address and/or email address
where they would like to receive notice and shall be responsible for updating such contact
information. Agency staff will make themselves reasonably available to FOL and/or its
members, should they contact staff, to discuss any upcoming redevelopment projects in
the City. If Petitioner FOL believes that the Agency has failed to provide the notice set
forth in this Section 7, FOL shall notify the Agency of the alleged failure to give notice
and, if approval of demolition of properties for redevelopment in the Lacy Neighborhood
is in fact scheduled, the Agency shall have five (5) days to cure the alleged failure by
mailing or emailing the required notice.
Conditions Precedent Payment of Attorney's Fees and Dismissal of the Litigation.
8.1. Conditions Precedent to Obligations. All of the City's, Agency's and Developer's
obligations set forth in this Agreement, are expressly contingent on Petitioner
FOL's dismissal of the Litigation with prejudice, as set forth in Section 8.3 of this
Agreement, and the absence of any intervening modification of the Agency's
powers, by state or federal legislation or otherwise, that precludes the Agency (or
its successor agency) from performing its obligations under this Agreement.
Additionally, all of the City's, Agency's and Developer's obligations related to
each Phase of the Revised Station District Project are expressly contingent on the
both of following conditions precedent: (i) satisfaction of both the Agency's and
the Developer's "Conditions of Closing" set forth in Section 204 of the DDA or
the Revised DDA so long as the "Conditions of Closing" in the Revised DDA are
in substantial conformance with the "Conditions of Closing" in the DDA; and (ii)
final approval by the City and Agency of the Revised DDA.
8.2. Payment of Attorney's Fees and Costs. Immediately following the Effective Date
of this Agreement, the Developer will pay the attorney fees and costs reasonably
incurred by FOL in the Litigation, which the Parties have determined to be sixty-
four thousand four hundred ninety four dollars ($64,494.00) for attorney's fees
and seven thousand five hundred six dollars ($7,506.00) for costs, for a total of
seventy-two thousand dollars ($72,000.00). Payment shall be made to the Brandt-
Hawley Trust Account by bank wire.
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8.3. Dismissal of Litigation with Prejudice. Petitioner FOL shall provide an executed
request for dismissal of the Litigation with prejudice to the City on the Effective
Date of the Agreement. The City shall file the executed request for dismissal with
the Orange County Superior Court upon the Brandt-Hawley Law Group's receipt
of the payment of Attorney's Fees and Costs sent forth in paragraph 8.2.
9. Release of Claims.
9.1. FOL's Release. The Parties agree that, as of the Effective Date of this
Agreement, Petitioner FOL and each individual member of FOL and Debra
McEwen (the "Releasing Parties") shall be conclusively deemed to have released
the City, the Agency and the Developer, and their respective heirs, administrators,
successors, assigns, agents, employees, officers, partners and directors (the
"Released Parties") from all rights, actions, claims, debts, demands, costs,
contracts, allegations, liabilities, obligations, demands, and causes of action,
whether known, suspected, or unknown, at law or in equity, which each of the
Releasing Parties, or any of them, had, now has or as of the Effective Date of this
Agreement has against the Released Parties, or any of them, arising from or
relating to the Station District Project; the Revised Station District Project; the
DDA; the Revised DDA; any future demolition of structures or acquisition of
property by the Agency or the City on the Potential Park Site for park/open space
uses; the associated EIR as it applies to the Station District Project, the Revised
Station District Project, and the Potential Park Site's use for park/open space uses;
and the Litigation or any portion thereof, including without limitation, all costs
and fees incurred by the Releasing Parties in, or arising from, such actions
(collectively, the "Released Claims"). The Releasing Parties, and each of them,
shall conclusively be deemed to have waived and relinquished to the fullest extent
that it may lawfully do so, all rights and benefits afforded by Section 1542 of the
Civil Code of the State of California ("Section 1542") which states as follows: "A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR." This release does not extend
to the right of each Party, including members of Petitioner FOL, to institute legal
action to seek specific performance of this Agreement, as set forth in Section
10.3.
9.2. Understanding of Section 1542 Waiver. The Releasing Parties, by executing this
Agreement, assume the risk that they are unaware of the subject matter of this
Agreement, or are otherwise mistaken as to relevant facts, and acknowledge that
they may discover facts in addition to or different from those that they now know
or believe to be true concerning the Released Claims and other matters contained
in or concerning this Agreement. Each Party nevertheless agrees and intends this
Agreement to be a complete release of the Released Claims, and to settle all
disputes and differences relating to the Released Claims, known or unknown,
suspected or unsuspected, that have existed, now exist, or may now exist between
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or among the Releasing Parties and the Released Parties. The Releasing Parties
hereby acknowledge and represent that (a) they understand the significance and
the consequences of such specific waiver of unknown claims and hereby assume
full responsibility for any injuries, damages, lawsuits or liabilities that they may
incur, both now and hereafter, from the waiver of said unknown claims, (b) they
may discover facts different from, or in addition to, those facts that they now
know or believe to be true, and agree that this Agreement and the releases
contained herein shall be and remain effective in all respects notwithstanding any
such subsequent discovery of different or additional facts, (c) they have
undertaken their own independent investigation of all of the facts relating to the
matters being released herein and this Agreement, and in entering into this
Agreement and granting the releases contained herein, is not relying on any
representation, warranty, or statement of any other Party except as expressly set
forth herein, and (d) this waiver is an essential and material term of this
Agreement.
9.3. Notwithstanding the Released Claims. If the Developer or its successors and
assigns do not proceed with Phase R-2 of the Revised Station District Project
because Tax Credit allocations are not approved, Petitioner FOL and its members
reserve the right to challenge in administrative and judicial forums the approval of
any discretionary development permit by City or Agency on the parcels identified
on the Site Map (Exhibit "A") as Phase R-2 that would not effectuate
rehabilitation of Properties Nos. IA, 113, 2, 313, 3C, 4, 5, 6A, 8, and 13 as shown
on the FOL Settlement Property Plan (Exhibit "D") and as more specifically
described in the FOL Settlement Property Description (Exhibit "E").
9.4. The terms and existence of this Agreement and any other documents, negotiations
or statements by the Parties in connection therewith, to the extent these items are
not matters of public record, shall not be admissible as evidence in any future
litigation or any other action or proceeding involving the Parties, the DDA, the
Revised DDA, the Station District Project, the Revised Station District Project,
other projects that may be proposed in the TZC, or the FIR prepared for the TZC
and Station District Project.
10. Default and Remedies.
10.1. Opportunity to Cure Alleged Default Failure by any Party to perform any
obligation hereunder within the time periods provided herein following notice and
failure to cure as described hereafter, constitutes a "Default" under this
Agreement. A Party alleging a Default shall give written notice of Default to the
other Party specifying in reasonable detail the nature of the alleged Default and,
where appropriate, the manner in which the alleged default satisfactorily may be
cured; offer to meet and confer in a good faith effort to resolve the issue; and
provide the other Party sixty (60) days to cure the alleged Default commencing at
the time of receipt of the notice of a properly detailed written Default notice
provided, however, that notwithstanding the foregoing, the Parties acknowledge
and agree that any failure by FOL to deliver in a timely manner the dismissal of
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the Litigation with prejudice pursuant to Section 8.3 hereof, or the failure of the
City to file such dismissal with prejudice pursuant to Section 8.3 hereof may
impair Developer's ability to obtain or maintain the Tax Credits and, as a result
thereof, neither FOL nor the City shall be entitled to any cure period as a result of
the breach of their respective obligations under Section 8.3 hereof. The Parties
agree that time is of the essence in the performance by FOL and the City of their
respective obligations under Section 8.3 hereof.
10.2. Affect of Modification of Agency's Powers. In addition to specific provisions of
this Agreement, performance by the City or Agency hereunder shall not be
deemed to be in Default, if the Agency's powers are modified, by state or federal
legislation or otherwise, in any way that precludes the City or Agency from
performing its obligations under this Agreement as a matter of law.
10.3. Institution of Legal Action. In addition to any other rights or remedies and
subject to the restrictions otherwise set forth in this Agreement, after expiration of
the cure period provided in Section 10.1 above, any Party may institute a legal
action to seek specific performance of the terms of this Agreement, or to cure,
correct or remedy any Default. Specific performance shall be each Party's sole
remedy against the other Party in the event of a breach hereunder. The rights and
obligations of any non-breaching Party shall not be affected by the institution of a
legal action alleging breach against another Party.
11. Representations and Warranties. Each of the Parties represents, warrants, and agrees as
to itself ("Such Party") as follows:
11.1. Such Party has received independent legal advice from its attorneys with respect
to the advisability of making the settlement provided for herein, and with respect
to the advisability of executing this Agreement. Such Party has been fully
advised by its attorneys with respect to its rights and obligations under this
Agreement and understands those rights and obligations.
11.2. No other Party (nor any director, officer, member, manager, partner, trustee,
agent, employee, representative or attorney of or for any other Party) has made
any statement or representation to Such Party regarding any fact Such Party relied
upon in entering into this Agreement, and Such Party is not relying on any
statement, representation or promise, written or oral, of any other Party (or of any
director, officer, member, manager, partner, trustee, agent, employee,
representative or attorney for any other Party) in executing this Agreement, or in
making the settlement provided for herein, except as otherwise expressly stated in
this Agreement.
11.3. Prior to the execution of this Agreement, Such Party and Such Party's legal
counsel have made such investigation of the facts and inquiries Such Party
deemed necessary or desirable pertaining to this settlement, this Agreement and
all the matters pertaining thereto.
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11.4. Such Party or responsible director, officer, member, manager, partner, trustee or
attorney thereof has read this Agreement and understands the contents hereof.
Each director, officer, member, manager, partner, trustee or attorney executing
this Agreement on behalf of Such Party is empowered to do so and thereby to
bind Such Party.
11.5. Except as otherwise expressly represented, warranted or provided in this
Agreement, Such Party assumes the risks that (i) it may hereafter discover facts in
addition to or contrary to those it believed to exist or relied upon in entering into
this Agreement, including, without limitation, unknown or unanticipated claims
which, if known by Such Party on the Effective Date may have materially
affected Such Party's decision to execute this Agreement, (ii) it may have
mistakenly understood matters relevant to entering into this Agreement and
(iii) another Party may have negligently misrepresented or negligently failed to
disclose facts in connection with the entering into of this Agreement.
Notwithstanding any such unknown or unanticipated claims, misunderstandings,
mistakes, negligent misrepresentations or negligent nondisclosures, Such Party
intends that this Agreement thereafter shall continue in full force and effect and
shall not be subject to rejection or rescission for any reason, provided that such
Party reserves all rights provided for in this Agreement.
11.6. Such Party has not heretofore assigned, transferred, or granted, or purported to
assign, transfer, or grant to any person or entity, any of Such Party's Released
Claims or any portion thereof.
11.7. Each term of this Agreement (other than Recitals A through J, above) is
contractual and not merely a recital. Each of Recitals A through J, above, is true
and correct.
11.8. Such Party is aware that it may hereafter discover claims or facts in addition to or
different from those it now knows or believes to be true with respect to the
matters related herein. Nevertheless, it is the intention of Such Party to assume
the risk that claims or facts now known or thought to be true may later be found to
be different and to fully, finally and forever settle and release all of Such Party's
Released Claims. In furtherance of such intention, the releases given herein shall
be and remain in effect as full and complete mutual releases of all such matters,
notwithstanding the discovery or existence of any additional or different claims or
facts relative thereto, and that this settlement shall not be subject to termination,
rescission or modification by reason of any such change in claims or facts or
knowledge of claims or facts.
11.9. Such Party shall execute all such further and additional documents as shall be
reasonable, convenient, necessary or desirable to carry out the provisions of this
Agreement.
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11. 10. Such Party acknowledges it has carefully read and fully understands all of the
provisions of this Agreement and that Such Party is entering into this Agreement
voluntarily.
11.11. Such Party acknowledges that it is within the contemplation of each of the Parties
to this Agreement that each of them may have claims for relief or causes of action
for malicious prosecution or abuse of process in connection with the filing of
claims for relief, causes of action, counterclaims, or cross-complaints in the
Litigation and matters undertaken in connection therewith; and that it is the
intention of the Parties to this Agreement to release any such claims, to deny that
any malicious prosecution of actions or abuse of process has occurred, and to
represent and agree that the filing of all claims for relief, causes of action,
counterclaims, or cross-complaints in the foregoing Litigation were done pursuant
to the advice of legal counsel and upon probable cause.
12. General Provisions.
12.1. Governing Law. This Agreement shall be governed by and interpreted and
construed in accordance with the laws of the State of California.
12.2. Construction. This Agreement shall in all cases be construed according to its fair
and plain meaning, and not strictly for or against any of the Parties. As used in
this Agreement, the masculine or neuter gender and single or plural numbers shall
be deemed to include the others wherever the context so indicates or requires.
12.3. Entire A reement. This Agreement constitutes the entire agreement and
understanding of the Parties hereto with respect to the subject matter contained
herein. All prior agreements or understandings, oral or written, are merged into
this Agreement and are of no further force or effect.
12.4. Severabilitv. If any term, provision, condition or covenant of this Agreement or
its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term,
provision, condition or covenant to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable, shall not be affected, and
shall be valid and enforceable to the fullest extent permitted by law.
12.5. Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day, and including the last day,
unless the last day is a holiday or Saturday or Sunday, and then that day is also
excluded. The term "holiday" shall mean all holidays as specified in
Section 6700 and 6701 of the California Government Code. If any act is to be
done by a particular time during a day, that time shall be Pacific Time Zone time.
12.6. Counterparts. This Agreement may be executed in counterparts and by facsimile
or electronic signatures, and when joined together, all counterparts shall constitute
one agreement, which shall be binding on all of the Parties, even though all
signatures may not be on one original or the same counterpart.
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12.7. Amendment. This Agreement may only be modified or amended by a written
amendment thereto executed by all of the Parties. The Parties acknowledge that,
due to the long term nature of the Revised Station District Project and the
implementation thereof in three Phases, it may be necessary and/or appropriate at
some time in the future, or from time to time, for the parties to execute additional
documentation to clarify and implement the provisions of this Agreement. Each
party agrees to cooperate in good faith to negotiate and enter into such various
additional documentation for each Phase of the Project as may be determined to
be reasonably necessary and/or appropriate by the Parties. Modifications to the
terms of this Agreement as to one or more Phase(s) of the Project are permissible,
so long as such actions are agreed to by all of the Parties and do not materially or
substantially change or modify the uses or development permitted by the Revised
Station District Project, or materially or substantially add to the costs,
responsibilities, or liabilities incurred or to be incurred by the Agency.
12.8. No Admission. Neither the acceptance nor execution of this Agreement
constitutes an admission of liability by any Party, nor shall it be construed as
such.
12.9. Notice. Any notice, request, claim, demand or other communication required
hereunder ("Notice") shall be in writing and shall only be effective upon delivery
in person, by overnight courier with receipt requested, by facsimile transmission
with confirmation of transmission or by registered or certified mail (postage pre-
paid, return receipt requested) to the Party designated for receipt of the Notice
upon such Party's actual receipt of the Notice. Notice shall be delivered to the
Parties as follows:
Susan Brandt-Hawley
P.O. Box 1659
Glen Ellen, CA 95442
Friends of the Lacy Historic Neighborhood:
c/o Jeffrey L. Dickman
1218 N. French Street
Santa Ana, California 92701
c/o Alison Young
1102 S. Ross Street
Santa Ana, California 92707
City of Santa Ana
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20 Civic Center Plaza
Santa Ana, California 92701
Attention: City Clerk
Copy: City Attorney / Agency Counsel
Community Redevelopment Agency of the City of Santa Ana
20 Civic Center Plaza
Santa Ana, California 92701
Attention: City Clerk
Copy: City Attorney / Agency Counsel
Santa Ana Station District, LLC
18201 Von Karman Avenue, Suite 900
Irvine, California 92612
Attention: William A. Witte
Bocarsly, Emden, Cowan, Esmail & Arndt, LLP
633 West Fifth Street, 70th Floor
Los Angeles, CA 90071
Attn: Lance Bocarsly
12.10. Authoritv. Each individual signing this Agreement on behalf of an entity
represents and warrants that the individual has the right, power, legal capacity,
and authority to do so, and that no further approval or consent of any person,
spouse, officer, shareholder, board of directors, city council, or other person or
entity is necessary.
12.11. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the Parties, and their respective heirs, administrators, successors,
assigns, agents, employees, officers, partners and directors. Nothing in this
Agreement, express or implied, is intended to confer upon any person, other than
the Parties or their respective successors and assigns, any rights or benefits under
or by reason of this Agreement.
12.12. No Waiver. The failure of any Party to enforce any of its rights arising by reason
of any breach of covenant on the part of any other Party will not constitute a
waiver of such breach. No custom or practice which exists or arises between or
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among the Parties in the course of administering this Agreement will be construed
to waive any Party's rights to (i) insist upon the performance by any other Party
of any covenant in this Agreement or (ii) exercise any rights given it on the
account of any breach of such covenant. A waiver of any particular breach will
not be deemed to be a waiver of same or any other subsequent breach.
12.13. Exhibits. Each of the Exhibits attached hereto shall be incorporated in this
Agreement as if set forth in full herein.
12.14. Headings. The descriptive headings used in this Agreement are for convenience
only and shall not affect the meaning of any provision of this Agreement.
12.15. Cooperation. Each Party agrees to cooperate with the other in implementation of
this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set
forth above.
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, a public body,
corporate and politic
Date:
By:
Nancy Edwards
Executive Director
BOARD OF THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY
OF SANTA ANA, a public body, corporate and
politic
Date:
Carlos Bustamente
Boardmember
APPROVED AS TO FORM:
Date:
By:
Joseph Straka, City Attorney
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CITY:
CITY OF SANTA ANA, a municipal corporation
Date:
David Ream
City Manager
CITY COUNCIL OF THE CITY OF SANTA
ANA, a municipal corporation
Date:
By:
Carlos Bustamente
Councilmember
APPROVED AS TO FORM:
Date:
By:
Joseph Straka, City Attorney
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FRIENDS OF LACY:
FRIENDS OF THE LACY HISTORIC
NEIGHBORHOOD, an unincorporated association
Date:
By:
Jeffrey L. Dickman
22
80A-247
DEBRA MCEWEN, an individual
Date:
By:
Debra McEwen
23
80A-248
DEVELOPER:
SANTA ANA STATION DISTRICT, LLC,
a California limited liability company
By: The Related Companies of California, LLC,
a California limited liability company,
its member
Date: I ZO l?
By: _
William A. Witte, President
By: Griffin Realty Corporation, a California
corporation, its member
Date: 1!5 1 yvr (- z01!
By:
Rog 4 T iero, President
24
80A-249
EXHIBIT "A"
SITE MAP
80A-250
SITE MAP WITH PARK SITE AND PROJECT PHASING
12TH ST
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4TH ST
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Phase 1 - R-1 Multifamily
Phase 2 - R-2 Multifamily
Phase 2-R-2 Rehabilitation
For Sale
' J • . • Potential Park Site
- Station District
EXHIBIT "B"
TRANSIT ZONING CODE PROJECT AREA
80A-252
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EXHIBIT "C"
LACY NEIGHBORHOOD, STATION DISTRICT AND SURROUNDINGS
80A-254
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80A-255
EXHIBIT "D"
FOL SETTLEMENT PROPERTY PLAN
80A-256
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80A-257
EXHIBIT "E"
FOL SETTLEMENT PROPERTY DESCRIPTIONS
80A-258
EXHIBIT "E"
FOL SETTL EMENT PROPERTY DESCRIPTIONS
ADDRESS = AP }N . L. DE
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A IA 501 -501 1/2 E. 5th Street Rehab in Place 398-332-09 FRUITS ADD BLK 6 LOT1
A 1B 507 Mortimer Rehab in Place
A 2 505 E. 5th Street Rehab in Place 398-332-08 Ru1TSAD BLK6LOT2
C 3A 505 N. Minter Street Demolish 398-333-09 FRUITS ADD BLK 7 LOTI
C 3B 507 N. Minter Street Rehab in Place
C 3C 601-603 E. 5th Street Rehab in Place 398-311-19 FRUITS ADD TO SANTA ANA EAST BLK &F
B
- 4
- 610-612 E. 5th Street Relocate to 511 E. 5th St. 398-338-03 FRUITS ADDB K8LOT8
D 5 615-617 E 55th Street Rehab in Place 398-333-06 FRIA IS ADD BLK 71OT4
D 6A 621 E. 5th Street Rehab in Place 398-333-05 FRUITS ADDLK 7 LOT5
D 6B 508-510 N. Porter St. Demolish
B 7 620 E. 5th Street Demolish 398-338-05 FRUITS AD BLK 8 LOT6
E 8 712 E. 5th Street Rehab in Place 398-337-03 FRUITS ADD BLK 9 LOT8
9 720 E. 6th Street Hold (may demolish) 398-334-05 FRDITSADDBLOCK 10LOT6
10 714 E. 6th Street Hold (may demolish) 398-334-04 FRUITS AD BLOCK I0LOT7
11 710 E. 6th Street Hold (may demolish) 398-334-03 FRUIISADDBLOCK 10Lar8
1 12 617 E. 6th Street Demolish 398-311-08
U FFR FTS ADD IOSANTA AN -FAST LOT II
RUN WI,Y 721
1 13 613 E. 6th Street Relocate to 602 E. 6th St. 398-311-0
7 `FRK°SAANDDTOS;ANTA ANA EAST LOTS
1 13A 615 A & B
E. 6th Street Demolish BLING E 18 FT ON N
1
14 O
609 E. 6th Street
Demolish 3p O
98-311-06
BLK F(ANDDLTO09ANTA ANA EAST OT]
4 15 623 N. Garfield Street Demolish 398-313-04 SANTA ANA LAST BLK 61 LOIS6&7
1 16 611 N. Minter Street Demolish 398-311-01 1RKIFWIYITO AFT (AND DD TO SANTA ANA EAST LOT 2
BLK F(AND LOT 6 BLK F WIN 100 FT NLY
2760 FI THERE
17 801 Santa Ana Bbd. Demolish 398-303-04 Fbswws A EA 1OOFLOTs66LOrs13,la, =&
18 707 N. Garfield Street Demolish 398-303-04 16 SHIN SOFT OF LOTS 66 LOTS 13,14,15 &
19 911 Brown Street Acquire& Demolish 398-313-10 FOANDNews0F LOTS BLK65
20 812E Santa Ana Blvd. Acquire & Demolish 398-313-03 p""'FO&oFULLS2O3&4AL INBIKb5 FLOT
80A-259
EXHIBIT "F"
LACY NEIGHBORHOOD HOUSING FUND
80A-260
EXHIBIT "F"
LACY HOUSING FUND PROGRAM
The Community Redevelopment Agency of the City of Santa Ana (Agency) has designed
the Lacy Housing Fund (Program) to assist owners of rental properties and owner
occupants of detached single family homes to keep their homes attractive and well
maintained. In addition, funds may be used for payment of fees associated with
nomination to the California Register of Historical Resources (CRHR) or the Santa Ana
Register of Historic Properties (SARHP) and Mills Act Property Tax Abatement Program.
This Program is designed and implemented in accordance with the State laws that
govern its funding source. Should those laws change, the Program may be modified so
as to insure continued compliance with the law. Continued operation of the Program is
dependent upon availability of funds. The maximum loan amount is $25,000. The
amount eligible for the grant funds will be in addition to the maximum loan. Funding
will be prioritized on a fiscal year by 75% to be expended for homes 50 years and older
and 25% for homes less than 50 years old.
Eligibility Requirements
Borrowers must be the owners of detached single family homes located within the Lacy
Neighborhood (Attachment 1) in the City of Santa Ana. These properties may be either
owner occupied or renter occupied. All owners of record must have a credit score of at
least 580, and must be current on all loans and taxes related to the property. Owners
must not have had a bankruptcy or foreclosure within the last two years.
Total debt on the property, including the exterior rehabilitation loan, cannot exceed 95
percent of its appraised, after rehabilitation value. There can be no more than one loan
superior to the Agency's rehabilitation loan. Only one loan and grant will be provided to
a property under this program.
Borrowers must agree to conform to all applicable Federal and State lead-based paint
and asbestos regulations. All Notices of Violation issued by the City must be corrected
by the time the Agency approved repairs are completed.
For owner occupants, total annual income of the household, meaning all persons using
the home as their primary residence, cannot exceed 120 percent of the area median
income as determined by the California Department of Housing and Community
Development. The following table was effective as of June 17, 2010:
Household Size Maximum
Income Household j
Size Maximum
come
1 Person $73,250 5 Persons $113,000
2 Persons $83,700 6 Persons $121,400
Page 1 of 3
F
8 - x ibit261
Household Size Maximum
Income Household
Size Maximum
Income
3 Persons $94,200 7 Persons $129,750
4 Persons $104,650 8 Persons $138,150
For rental properties, owners must demonstrate by means of evidence acceptable to
the Agency that at the time of the owner's application, all tenant households had
annual incomes at or below 120 percent of the area median income. All new tenants
must be income certified prior to move-in. Rental units must not be over-crowded. For
purposes of determining over-crowded there should be no more than 2 persons per
bedroom plus 1 (eg. 2 bedroom unit cannot have more than 5 occupants).
Owners must agree to restrict rents to those affordable to low income households (80%
AMI), and to do so for a period of ten years commencing with the loan date. As of
June 17, 2010 allowable rents were as follows:
Bedroom Size Allowable Rent
Studio $916
One Bedroom $981
Two Bedrooms $1,178
Three Bedrooms $1,308
Four Bedrooms $1,413
For owners who choose to rent their homes after the loan has been approved and
recorded, the ten years will still commence with the loan date.
Owners must agree to comply with all applicable Federal and State anti-discrimination
laws.
Use of Loan Proceeds
The loan may be used for exterior repairs, replacements and improvements, including,
but not limited to, the following categories:
• non-conforming fences that are visible from the street
• front yard landscaping and irrigation systems
• damaged or deteriorated roof
• flashing, sheathing, eaves, rafter tails, fascia board, gutters and downspouts
• exterior walls, trim, exterior doors, screens and windows
• damaged or deteriorated garage doors and garage door openers
• damaged or deteriorated driveways and walkways
• damaged or deteriorated exterior lighting
• new security lighting
Page 2 of 3
80 1162
All work must be performed by licensed general contractors who meet the City's
licensing and insurance requirements, and who have not been debarred by the U.S.
Department of Housing and Urban Development. All work must be performed in
accordance with applicable federal, state and local requirements.
In addition to repairs, loan proceeds may be used to pay for certain costs normally
associated with the loan process. These include but are not necessarily limited to the
cost of appraisals, title reports, credit checks, flood certificates, underwriting fees,
document preparation, and warehousing.
The funds may also be used for the payment of fees associated with nomination of a
property in the Lacy Neighborhood for listing on either the CRHR or the SARHP. An
owner may apply for funding from the Lacy Housing Fund Program to finance payment
of the nomination fees. If applying for such funding, the owner will be subject to all
requirements of the Lacy Housing Fund.
Funds may also be used to pay for fees associated with the application for Mills Act
Property Tax Abatement Program. An owner may apply for funding from the Lacy
Housing Fund to finance payment of the application fees. If applying for such funding,
the owner would be subject to all requirements of the Lacy Housing Fund.
Interest Rates and Repayment
Exterior repair loans will have a zero percent interest rate, and payments will be
deferred for thirty years or until the property is sold. The loans will be due and payable
at the end of the thirty years, but payment may be deferred for borrowers who are
unable to pay them off. These exterior repair loans are not assumable.
Rental property owners who fail to comply with the ten year affordability requirement or
to abide by all applicable Federal and State anti-discrimination laws will be immediately
required to repay the loan. Owners must correct all Notices of Violation prior to the
time the Agency loan is secured.
Funds used for paying fees associated with nomination of their property for listing on
the CRHR or the SARHP will be a grant. In addition, the fees associated with the
application for Mills Act Property Tax Abatement Program will be a grant. Grant funds
under this program will be payable directly from the Agency to the City for an approved
application.
Page 3 of 3
Exhibit F
80A-263
EXHIBIT "G"
DISPOSTION AND DEVELOPMENT AGREEMENT
80A-264
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between the
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA
and
SANTA ANA STATION DISTRICT, LLC
Exhibit "G"
D OCSOC/1400673v 14/200272-0001
80A-265
TABLE OF CONTENTS
Pape
100. DEFINITIONS .................................................................................................................3
200. CONVEYANCE OF THE SITE ............................................................................. .......12
201. Conveyance of the Site and Escrow; Consideration ................................... .......12
201.1 Costs of Escrow ........................................................................... .......13
201.2 Escrow Instructions ..................................................................... .......13
201.3 Authority of Escrow Agent ......................................................... .......13
201.4 Closing ........................................................................................ .......14
201.5 Closing Procedure ....................................................................... .......I5
202. Review of Title.. ............................................................... ......................... ....... 15
203. Title Insurance ............................................................................................ .......16
204. Conditions of Closing ..................................................................
............... 17
.......
204.1 Agency's Conditions of Closing ............................................ ... 17
204.2 Developer's Conditions of Closing ............................................. .......18
205. Representations and Warranties .................................................................. .......20
205.1 Agency Representations .............................................................. .......20
205.2 Developer's Representations ....................................................... .......2I
206. Condition of the Site ................................................................................... .......22
206.1 Investigation of Site .................................................................... .......22
206.2 Studies and Reports ..................................................................... .......23
206.3 Remediation After Developer Elects To Terminate .................... .......23
206.4 No Warranties As To Site; Release of Agency ........................... .......25
206.5 Developer Precautions After Closing .......................................... .......26
206.6 Required Disclosures After Closing ............................................ .......26
206.7 Abatement Report ....................................................................... .......27
206.8 Developer Site Condition Indemnity ........................................... .......27
206.9 Agency Environmental Indemnity .............................................. .......28
207. Agency Acquisition of Additional Properties ............................................. .......28
208. Agency Acquisition of the Segura Parcels .................................................. .......28
209. Separate Phases ........................................................................................... .......29
210. Timing of Agency Obligations ................................................................... .......29
300. DEVELOPMENT OF THE PROJECT... ............................................................... ....... 29
301. Developer's Obligation to Construct Developer Improvements; Scope of
Development ............................................................................................... .......29
302. Design Review ............................................................................................ .......29
302.1 Conceptual Site Plan ................................................................... .......29
302.2 Revisions ..................................................................................... .......30
302.3 Defects in Plans ........................................................................... .......30
302.4 Use of Architectural Plans ........................................................... .......30
302.5 Agency Executive Director Approval ......................................... .......30
303. Land Use Approvals ................................................................................... .......30
303.1 California Environmental Quality Act ........................................ .......31
303.2 Lot Merger ................................................................................... .......31
304. Time for Commencement and Completion of Construction ....................... .......31
305. Development Obligations ........................................................................... .......32
DOCSOG 1400673 v 141200272-0001
80A-266
TABLE OF CONTENTS
(Continued)
Page
305.1 Cost of Construction .................................................................... .......32
305.2 Public Art Fee .............................................................................. .......32
305.3 Provision of Child Care Facilities ............................................... .......32
305.4 Retail Space ................................................................................. .......32
306. Insurance Requirements .............................................................................. .......32
306.1 Minimum Coverage/Endorsements ............................................. .......33
306.2 Property Insurance ....................................................................... .......34
306.3 Applicability to For-Sale Portion of the Project .......................... .......35
307. Indemnity ..................................................................................
.................. 35
.......
307.1 Developer Indemnity ................................................................... .......35
307.2 Agency Indemnity ........................................................................ ......36
308. Rights of Access .......................................................................................... ......37
309. Nondiscrimination in Employment .............................................................. ......37
310. Taxes and Assessments ................................................................................ ......37
311. Compliance with Laws ................................................................................ ......38
311.1 Prevailing Wage Laws ................................................................. ......38
312. Liens and Stop Notices ................................................................................ ......39
313. Release of Construction Covenants ............................................................. ......40
314. Agency Financial Assistance ....................................................................... ......40
314.1 Agency Loans ............................................................................... ......40
314.2 Repayment of the Agency Loans ................................................ .......41
314.3 Reporting Requirements for the Rental Portion of the Project ... .......41
314.4 Reporting Requirements for the For-Sale Portion of the Project. ...... 42
314.5 Security of Agency Loan .............................................................. ......42
314.6 Disbursement of the Agency Loan ............................................... ......42
315. Homebuyer Assistance ................................................................................. ......42
315.1 Homebuyer Assistance Loan ........................................................ ......42
315.2 Repayment of Homebuyer Assistance Loan ................................ ......42
315.3 Security for Homebuyer Assistance Loan .................................... ......43
315.4 Disbursement of Homebuyer Assistance Loan; Conditions Precedent
Thereto; Developer's Marketing, Disclosure and
Housing Counseling ..................................................................... ......43
315.5 Subordination ............................................................................... ......45
315.6 Assumption ................................................................................... ......45
316. Financing of the Developer Improvements .................................................. ......45
316.1 Approval of Financing ................................................................. ......45
316.2 Tax Credit Equity ......................................................................... ......46
316.3 Required Submissions .................................................................. ......47
316.4 No Encumbrances Except Mortgages, Deeds of Trust, or Sale and
Lease-Back for Development ....................................................... ......47
316.5 Holder Not Obligated to Construct Developer Improvements ..... ...... 47
316.6 Notice of Default to Mortgagee or Deed of Trust Holders;
Right to Cure ................................................................................ ......47
316.7 Failure of Holder to Complete Developer Improvements ............ ...... 48
ii
DOCSOC/1400673 v 14200272-0001
80A-267
TABLE OF CONTENTS
(Continued)
Pace
316.8 Right of the Agency to Cure Mortgage or Deed of Trust Default .....49
400. OPERATION OF THE PROJECT ............................................................................ ....49
401. Provision of Extremely and Very Low Income Rental Housing-RentaI
Portion of the Project ..................................................................................... ....49
401.1 Number of Affordable Rental Units .............................................. .....49
401.2 Duration of Affordability Requirements ........................................ ....49
401.3 Selection of Tenants ...................................................................... .....49
401.4 Household Income Requirements ................................................. .....50
401.5 Affordable Rent ............................................................................. .....50
401.6 Occupancy Limits ......................................................................... .....50
401.7 Marketing Program ....................................................................... .....50
401.8 Maintenance .................................................................................. .....51
401.9 Management Plan; Property Management .................................... .....51
401.10 Monitoring and Recordkeepin0 ..................................................... .....52
401.11 Regulatory Agreement and Notice of Affordability Restrictions . .....52
401.12 Relationship to Tax Credit Requirements ..................................... .....53
401.13 Applicability of Section ................................................................ .....53
402. Provision of Moderate Income For-Sale Housing-For-Sale Portion of the
Project ........................................................................................................... .....53
402.1 Number, Location and Quality of Affordable For-Sale Units ...... .....53
402.2 Maximum Sales Prices .................................................................. .....54
402.3 Affordable Housing Resale Restriction ......................................... .....54
402.4 Selection of Buyers; Marketing and Outreach Plan ...................... ..... 54
402.5 Income of Buyers .......................................................................... .....55
402.6 Maintenance Covenants; Association CC&Rs .............................. .....56
402.7 Applicability of Section ................................................................ .....56
403. Provisions Applicable to the Entire Project .................................................. .....57
403.1 Use in Accordance with Redevelopment Plan .............................. .....57
403.2 Nondiscrimination Covenants ....................................................... .....57
403.3 Applicability of Section ................................................................ .....58
500. DEFAULT AND REMEDIES .................................................................................. .....58
501. Default Remedies .......................................................................................... .....58
502. Institution of Legal Actions .......................................................................... .....58
503. Rights of Termination ................................................................................... .....59
503.1 Termination by Agency ................................................................. .....59
503.2 Termination by Developer ............................................................ .....59
503.3 Termination by Either Party .......................................................... .....60
504. Acceptance of Service of Process ................................................................. .....60
505. Rights and Remedies Are Cumulative .......................................................... .....60
506. Inaction Not a Waiver of Default .................................................................. .....60
507. Force Majeure; Extension of Times of Performance .................................... .....60
600. GENERAL PROVISIONS ............................................................................................6I
601. Notices, Demands and Communications Between the Parties ..........................61
iii
DOCSOGI400673v 14200272-0001
80A-268
TABLE OF CONTENTS
(Continued)
Page
602. Transfers of Interest in Site or Agreement ................................................. ........61
602.1 Prohibition .................................................................................. ........61
602.2 Permitted Transfers .................................................................... ........62
602.3 Agency Consideration of Requested Transfer ........................... ........63
602.4 Successors and Assigns .............................................................. ........63
602.5 Assignment by Agency ............................................................... .......63
602.6 No Cross Default/Release from Liability .................................... .......64
603. Non-Liability of Officials and Employees of the Agency .......................... .......64
604. Relationship Between Agency and Developer ........................................... .......64
605. Agency Approvals and Actions .................................................................. .......64
606. Counterparts ................................................................................................ .......64
607. Integration ................................................................................................... .......64
608. Real Estate Brokerage Commission ............................................................ .......65
609. Attorneys' Fees ........................................................................................... .......65
610. Titles and Captions ..................................................................................... .......65
611. Interpretation ............................................................................................... .......65
612. No Waiver ................................................................................................... .......65
613. Modifications .............................................................................................. .......65
614. Severability ....................................................................
............................. .65
......
615. Computation of Time .................................................................................. .......66
616. Legal Advice ............................................................................................... .......66
617. Time of Essence .......................................................................................... .......66
618. Cooperation .................................. ,.............................................................. ....... 66
619. Conflicts of Interest ..................................................................................... .......66
620. Date of Agreement ...................................................................................... .......66
621. Implementation of Agreement and Each Phase of the Project ................... .......66
ATTACHMENTS:
ATTACHMENT NO. 1
ATTACHMENT NO.2
ATTACHMENT NO.3
ATTACHMENT NO.4
ATTACHMENT NO.5
ATTACHMENT NO.6
ATTACHMENT NO.7
ATTACHMENT NO. 8A
ATTACHMENT NO. 8B
ATTACHMENT NO.9
ATTACHMENT NO. 10
ATTACHMENT NO. I I
ATTACHMENT NO. 12
ATTACHMENT NO. 13
DOCSOC/1400673 v 14/200272-0001
SITE MAP
LEGAL DESCRIPTION
GRANT DEED
BUDGET
SCOPE OF DEVELOPMENT
RELEASE OF CONSTRUCTION COVENANTS
REGULATORY AGREEMENT
PHASE FS PROMISSORY NOTE
PHASE R-1 AND PHASE R-2 PROMISSORY NOTES
DEED OF TRUST AND ASSIGNMENT OF RENTS
FORM OF RESIDUAL RECEIPTS REPORT
FORM OF HOMEBUYER LOAN AGREEMENT
NOTICE OF AFFORDABILITY RESTRICTIONS
LIST OF DEVELOPER'S CONSULTANTS ELIGIBLE TO BE
INCLUDED IN THIRD PARTY COSTS
iv
80A-269
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement") is
entered into as of June 7, 2010, by and between the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic (the
"Agency") and SANTA ANA STATION DISTRICT, LLC, a California limited liability
company (the "Developer").
RECITALS
The following Recitals are a substantive part of this Agreement:
A. The Agency is a California redevelopment agency acting under the California
Community Redevelopment Law, Part 1 of Division 24 of the Health & Safety Code (the
"CRL" ). Section 33334.2 et seq. of the CRL authorizes and directs redevelopment agencies to
expend a certain percentage of all taxes that are allocated to a redevelopment agency pursuant to
Section 33670 for the purposes of increasing, improving and preserving the community's supply
of housing, available at affordable housing cost, to persons and families of moderate income,
low income, very low income, and extremely low income. Pursuant to Section 33334.3 of the
CRL, the Agency has established a Low and Moderate Income Housing Fund (the "Housing
Fund").
B. The Agency is authorized and empowered under the CRL to provide funding for
the production, improvement, or preservation of affordable housing using tax increment revenues
from the Housing Fund, and specifically for the construction of buildings or structures for
affordable housing units for low or moderate income persons pursuant to Section 33334.2(e)(5)
of the CRL.
C. The Redevelopment Plan for the Merged Project (the "Merged Project") was
approved by Ordinance Nos. 2662-2667 adopted by the City Council of the City of Santa Ana
(the "City") on September 30, 2004 (the "Redevelopment Plan;" the geographic boundary of the
Merged Project is referred to herein as the "Project Area").
D. Developer is experienced in the construction, development, operation and
management of high quality housing which is affordable to persons and families of very low and
low income in Southern California.
E. In furtherance of the objectives of the CRL, the Agency desires to facilitate the
redevelopment of approximately six (6) acres of real property located within the City, partially
within the boundaries of the Project Area, which consists of unimproved lots and improved lots
with residential uses with certain parcels owned by third parties (the "Additional Properties"),
and certain parcels owned by the Agency ("Agency Parcels"), and certain other parcels owned
by Segura (the "Segura Parcels") which Segura Parcels the Agency has a right to acquire
pursuant to fully executed purchase agreements (the "Segura Purchase Agreements"). The
Agency Parcels, Additional Properties and Segura Parcels are shown on the Site Map and the
Additional Properties and Segura Parcels are listed on Attachment No. 1-A. The Agency is
attempting to acquire the Segura Parcels and the Additional Properties. The Segura Parcels and
1
DOC SOG 140D673v 141200272-0001
80A-270
the Additional Properties acquired by the Agency prior to the applicable Closing shall be
included as part of the Site in accordance with Section 207. The Segura Parcels and any such
Additional Properties so included pursuant to Section 207, together with the Agency Parcels are
referred to herein as the "Site." The Site is located within a larger area known as the "Station
District" and shown on the Site Map.
F. By this Agreement, and subject to the terms and conditions herein, the Agency
desires to transfer the Site to the Developer. The Developer desires to construct on the Site
affordable rental housing that will be available to and occupied by persons and families of very
low income and extremely low income, affordable for-sale housing that will be available to and
occupied by persons and families of moderate income, and market rate for-sale housing that will
be available to all buyers, pursuant and subject to the terms and conditions set forth in this
Agreement and further described in the Scope of Development (the "Project").
G. This Agreement is in furtherance of and supersedes, with respect to the Site, the
PREDEVELOPMENT AGREEMENT-DISTRICT MASTER PLAN and PREDEVELOPMENT
AGREEMENT-AGENCY PARCELS between the parties hereto and both dated December 7,
2009.
H. The Site will be conveyed to Developer and developed in three separate phases
("Phase R-1," "Phase R-2" and Phase FS") pursuant to the terms of this Agreement. Phase R-1
and Phase R-2 shall both consist of affordable rental housing that is available to and occupied by
persons and families of very low income and extremely low income. Phase FS shall consist of
for-sale housing, a portion of which shall be available to and occupied by persons and families of
moderate income. Each phase may utilize a somewhat different and separate financing structure
as provided in more detail in this Agreement and as may be further implemented and clarified in
one or more Implementation Agreements (defined in Section 100). Each phase may close
separately in which case the terms set forth herein for Closing and subsequent development shall
apply to each Phase.
L The parties acknowledge and agree that the financing and other terms set forth in
this Agreement may require adjustment to ensure that the Project (including each Phase thereof)
is developed and operated in a manner reasonably acceptable to the Agency and financially
feasible for the Developer. Therefore, in the event (i) the Developer is required to find alternate
financing sources for the development and operation of any (or all) Phase(s) of the Project,
(ii) one or more Phases are subject to a Transfer pursuant to Section 602 hereof (other than
transfers permitted pursuant to Section 602.2), and/or (iii) the terms of this Agreement as to one
or more Phase(s) of the Project otherwise requires adjustment, the parties may negotiate, as
necessary, in good faith and reasonably consider entering into one or more additional
Implementation Agreements for each Phase of the Project.
7. A portion of the Site is located outside the Project Area; however, separately
Agency and its legislative body (i.e., the City Council of the City) have determined that the
conveyance of the Site (specifically, that portion of the Site that is located outside the
Project Area) by the Agency to the Developer and the Developer's construction and development
of the Project pursuant to this Agreement will be of benefit to the Agency's Merged Project
pursuant to Section 33334.2(g)(1) of the CRL. With respect to the portion of the Site located
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within the Project Area, the Developer's construction and development of the Project on such
portion of the Site pursuant to this Agreement will be of benefit to the Agency's Merged Project,
the Project Area and its inhabitants as well as the remainder of the community.
K. The Project is vital to and in the best interest of the City and the health, safety and
welfare of its residents, and is in accordance with the public purposes of applicable state and
local laws and requirements.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and
conditions herein contained, the parties hereto agree as follows:
100. DEFINITIONS.
"Abatement Report" is defined in Section 206.9.
"Actual Knowledge" means the actual knowledge of the Agency Executive Director
and/or William Witte of the Developer, without duty of further inquiry or investigation. With
respect to Developer, the identity of the officer to whom actual knowledge is attributed may
change upon any transfer by Developer pursuant to Section 602. Any such change shall be set
forth in the instrument signed by the Agency releasing Developer as contemplated by
Section 602.2.
"Additional Property" or "Additional Properties" means certain properties owned by
third parties as shown on the Site Map that the Agency may acquire and which will, if acquired
prior to (i) with respect to Phase FS within forty-five (45) days of each separate Closing of each
Portion or Phase of Phase FS, and (ii) with respect to Phases R-1 and R-2, at least forty-five (45)
days prior to the date of any submission of a Tax Credit application to TCAC be included in the
Conveyance with respect to such Phase.
"Additional Properties Notice" is defined in Section 207.
"Affordability Period" as to a Rental Unit is defined in Section 401.2, and as to an
Affordable For-Sale Unit is defined in Section 402.3.
"Affordable For-Sale Unil(s)" means a For-Sale Unit (or multiple For-Sale Units) that
is/are restricted and sold by the Developer to Moderate Income Households pursuant to and
consistent with the terms of this Agreement.
"Affordable Housing Cost" means the maximum purchase price of an Affordable
For-Sale Unit by a Moderate Income Household pursuant to Health & Safety Code
Section 50052.5.
"Affordable Rent" means the maximum monthly rent chargeable for a Rental Unit as
described in Section 401.5.
"Agency" means the Community Redevelopment Agency of the City of Santa Ana, a
public body, corporate and politic, exercising governmental functions and powers and organized
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and existing under Chapter 2 of the Community Redevelopment Law of the State of California,
and any assignee of or successor to its rights, powers and responsibilities.
"Agency Deed of Trust" means a deed of trust securing each Promissory Note, as
provided in Section 314.4, in the form of Attachment 9 hereto which is incorporated herein by
reference.
"Agency Executive Director" means the Executive Director of the Agency or his or her
designee.
"Agency Loans" is defined in Section 314.1.
"Agency Title Policy Costs" is defined in Section 201.1.
"Agency's Conditions Precedent" means the conditions precedent to the Closing for the
benefit of the Agency, as set forth in Section 204.1 hereof.
"Agreement" means this Disposition and Development Agreement between the Agency
and the Developer.
"Association CC&Rs" is defined in Section 315.4(c)(i).
`Budget' means the development budget for each Phase attached hereto as Attachment
No. 4 and incorporated herein by reference.
"CEQA" means the California Environmental Quality Act.
"CEQA Challenge(s)" means an action brought challenging the validity of this
Agreement, the Land Use Approvals or any element of the Project based on the theory that the
approvals required hereunder failed to comply with CEQA.
"Child Care Facility" is defined in Section 305.3.
"City" means the City of Santa Ana, a charter city and municipal corporation duly
organized under the Constitution and laws of the State of California.
"Claim or Liability" is defined in Section 206.4.
"Closing," "Close" and "Close of Escrow" shall refer to the Conveyance of a Phase of
the Site in accordance with the provisions set forth in Section 201.5. The Agency and the
Developer anticipate that there will be three Closings, one for each Phase.
"Closing Date" means each date of a Closing, as set forth in Section 201.4.
"Conceptual Site Plan" means those plans and drawings showing the Developer
Improvements, which include, but are not limited to, building materials, color board, elevations
of all four sides of the Developer Improvements, preliminary landscape plans and a rendered
perspective.
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"Construction Drawings" means those plans, specifications and drawings submitted to
the building department of the City in sufficient detail to entitle the Developer to the issuance of
appropriate building permits for the Developer Improvements.
"Convey," or "Conveyed" or "Conveyance(s)" individually, is the conveyance of a
Phase of the Site (or in the case of Phase FS, a Portion or Phase of Phase FS), by the Agency to
the Developer on the Closing Date for such Phase (or Portion or Phase) in the manner set forth in
Section 201.5. The Agency and the Developer anticipate that there will be three separate
Conveyances, one for each Phase.
"Date of Agreement" means June 7, 2010.
"Default" is defined in Section 501.
"Developer" means Santa Ana Station District, LLC, a California limited liability
company, or permitted assignee.
"Developer Improvements" means the Housing Units and associated improvements as
required by this Agreement to be: (i) constructed upon the Site or the applicable Phase thereof,
with related offsite improvements, as more particularly described in the Land Use Approvals and
Scope of Development, and (ii) operated as affordable housing in conformity with the terms of
this Agreement with respect to such Phase.
"Developer Parties" is defined in Section 206.8.
"Developer's Conditions Precedent" means the conditions precedent to the Closing for
the benefit of the Developer, as set forth in Section 204.2.
"Developer Title Policy Costs" is defined in Section 201.1.
"Environmental Condition" means the absence or existence of (i) Hazardous Materials
on the Site, or (ii) Hazardous Materials contamination due to the generation of Hazardous
Materials from the Site, however such Hazardous Materials came to be placed where found.
"Environmental Laws" means any federal, state or local law, statute, ordinance or
regulation pertaining to environmental regulation, contamination or cleanup of any
Hazardous Materials, including, without limitation, (i) Sections 25115, 25117, 25122.7 or 25140
of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control
Law)), (ii) Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8
(Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory), (iv) Section 25281 of the California Health and Safety Code,
Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) Article 9 or
Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20,
(vi) Section 311 of the Clean Water Act (33 U.S.C. §1317), (vii) Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C. §6903), (viii) Section 101 of
the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601
et seq., or (ix) any state or federal lien or "super lien" law, any environmental cleanup statute or
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regulation, or any permit, approval, authorization, license, variance or permission required by
any governmental authority having jurisdiction.
"Escrow" is defined in Section 201.
"Escrow Agent" is defined in Section 201.
"Evidence of Construction Financing" means evidence of funds adequate in the
reasonable judgment of the Agency Executive Director, to construct and operate or market and
sell, as applicable, each Phase of the Developer Improvements.
"Evidence of Permanent Financing for the Rental Portion of the Project' means
evidence of a permanent loan for Phase R-1 and/or Phase R-2, as applicable, in an amount not to
exceed the amount necessary to take out the construction loan for such Phase.
"Exceptions" is defined in Section 202 hereof.
"Extremely Low Income" and/or "Extremely Low Income Households" shall mean
extremely low income households as defined in Health & Safety Code Section 50106.
"Final Phase FS Outside Closing Date" means the last date the final Closing with
respect to Phase FS may occur.
"For-Sale Portion of the Project" means that portion of the Project that consists of the
For-Sale Units (including the Affordable For-Sale Units). The For-Sale Portion of the Project
consists of six (6) lots as identified on the Site Map and shall be constructed in multiple phases,
and shall include any Additional Properties designated for For-Sale Units which are added to the
Project pursuant to Section 207 hereof. The Affordable For-Sale Units shall be located within
the For-Sale Portion of the Project.
"For Sale Unit(s)" means the Housing Unit(s) (inclusive of the Affordable For-Sale
Units) that shall be constructed and developed on the For-Sale Portion of the Project pursuant to
and consistent with the terms of this Agreement. A total of approximately thirty-two (32) For-
Sale Units (plus the For Sale Units to be constructed on the Additional Properties) shall be
constructed and developed by the Developer, inclusive of the Affordable For-Sale Units.
"Governmental Requirements" means all laws, ordinances, statutes, codes, rules,
regulations, orders and decrees of the United States, the state, the county, the City, or any other
political subdivision in which the Site is located, and of any other political subdivision, agency
or instrumentality exercising jurisdiction over the Agency, the Developer, the
Developer Improvements, and/or the Site.
"Grant Deed(s)" means the grant deed(s) for the Conveyance of each Phase from the
Agency to the Developer (or its permitted assignees), in the form of Attachment No. 3 hereto
which is incorporated herein by reference.
"Guarantor" is defined in Section 204.l(h).
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"Guaranty" is defined in Section 204.1(h).
"Hazardous Materials" means any substance, material, or waste which is or becomes,
regulated by any local governmental authority, the State of California, or the United States
Government, including, but not limited to, any material or substance which is (i) defined as a
"hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under
Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health
and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law)), (ii) defined as a
"hazardous substance" under Section 25316 of the California Health and Safety Code, Division
20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a
"hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of
the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated biphenyls,
(viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to
Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20,
(ix) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act
(33 U.S.C. § 1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C. §6903) or (xi) defined as
"hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §9601 et seg.
"Homebuyer" means each purchaser of one of the Affordable For-Sale Units, including
each member of the household comprising the purchaser.
"Homebuyer Assistance Loan" is defined in Section 315.1.
"Homebuyer Loan Agreement" means the agreement (including all attachments and
exhibits thereto) in substantially the form attached hereto as Attachment No. 11 and incorporated
herein by reference pursuant to which the Agency is to provide a Homebuyer Assistance Loan to
a Homebuyer of an Affordable For-Sale Unit.
"Housing Fund" is the Low and Moderate Income Housing Fund established and funded
by the Agency pursuant to Section 33334.3 of the CRL.
"Housing Project" or "Project" means the Developer Improvements.
"Housing Unit(s)" means the dwelling unit(s) required to be developed and operated by
the Developer under this Agreement, including both the Rental Units and the For-Sale Units.
"Implementation Agreement" and "Implementation Agreements" shall mean,
individually and collectively, agreements entered into by the Agency and Developer (or its
permitted successors and/or assigns) in order to implement and/or clarify the terms of this
Agreement, which Implementation Agreements may be necessary for each Phase of the Project
based on the Developer's sources of funding and financing for the development and operation of
each Phase of the Project in accordance with the terms of this Agreement, as provided in
Section 622 hereof.
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"Indemnify" or "Indemnity" means to defend, indemnify and hold harmless.
"Investor Limited Partner(s)" shall mean, the Tax Credit limited partner(s) of the
Developer (or Developer's permitted assignee) for implementation of Phase R-1 and Phase R-2
of the Project. The Agency acknowledges that Phase R-1 and Phase R-2 may have different
Investor Limited Partners.
"Land Use Approvals" is defined in Section 303.
"Legal Description" means the legal description of the Agency Parcels attached hereto as
Attachment No. 2 and incorporated herein by reference.
"Moderate Income" and "Moderate Income Households" means moderate income
households as defined in Health & Safety Code Section 50093.
"Monthly Housing Cost" means, for a Moderate Income Household purchasing an
Affordable For-Sale Unit, all of the following associated with such Affordable For-Sale Unit,
estimated or known as of the date of the proposed sale: (i) principal and interest payments on a
mortgage loan, including any loan insurance fees associated therewith (provided that if the
mortgage loan obtained by the purchaser contains an adjustable interest rate, then the principal
and interest payments shall be deemed to be those which would be due upon a mortgage loan
amortized over a thirty-year period with an interest rate equal to prevailing market rates for
thirty-year fixed-rate mortgage loans); (ii) property taxes and assessments; (iii) fire and casualty
insurance covering replacement value of property improvements; (iv) homeowner association
fees; and (v) a reasonable utility allowance. The Monthly Housing Cost shall be an average of
estimated costs for the next twelve (12) month period.
"Monthly Rent" is defined in Section 401.5.
"Notice" shall mean a notice in the form prescribed by Section 601.
"Notice of Affordability Restriction" is defined in Section 401.11.
"Outside Closing Date" means the Phase R-1 Outside Closing Date, the Phase R-2
Outside Closing Date or the FS Outside Closing Date, as applicable.
"Partnership Agreement" means, with respect to each of Phase R-1 and Phase R-2, an
agreement that sets forth the terms of a limited partnership to which the Developer Transfers its
rights, interest, and obligations in and to this Agreement with respect to the applicable Phase of
the Rental Portion of the Project, as such agreement may be amended from time to time, so long
as consistent with the requirements of this Agreement. The Partnership Agreements shall be
entered into between or among the general partners and the Investor Limited Partner that
comprise the limited partnership that Developer assigns its rights and obligations to with respect
to each Phase of the Rental Portion of the Project.
"Phase(s)" shall mean, individually and collectively, Phase R-1, Phase R-2 and Phase FS
of the Project. "Phase(s) sometimes refers to "Portion(s) or Phase(s)" where the context dictates.
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"Phase FS" shall mean the Phase of construction of the Project which shall include the
development of approximately thirty-two (32) For-Sale units (inclusive of the Affordable
For-Sale Units) on the For-Sale Portion of the Site. Specifically, Phase FS will be constructed
within the area identified on the Site Map as "Lot A," "Lot B," "Lot C," "Lot D," "Lot E," and
"Lot F."
"Phase FS Agency Loan" is defined in Section 314.2.
"Phase FS Guarantor" is defined in Section 204.1(h).
"Phase FS Outside Closing Date" means the last date the first Closing with respect to
Phase FS may occur as described in Section 201.4.
"Phase FS Promissory Note" means a Promissory Note that sets forth the Developer's
obligation to repay the Phase FS Agency Loan in the form which is attached hereto as
Attachment No. 8A and incorporated herein by reference.
"Phase R-1" shall mean the Phase of construction of the Project which shall include the
development of approximately seventy four (74) Rental Units on the Rental Portion of the
Property. Specifically, Phase R-1 will be constructed within the area identified on the Site Map
as "Lot 1."
"Phase R-I Agency Loan" is defined in Section 314.1.
"Please R-1 and Phase R-2 Guarantor" is defined in Section 204.1(b).
"Phase R-I Outside Closing Date" means the last date the Phase R-1 Closing may occur
as described in Section 201.4.
"Phase R-1 Promissory Note" and "Phase R-2 Promissory Note" means, in the case of
each of Phase R-I and Phase R-2, a promissory note that sets forth the Developer's obligation to
repay the Phase R-1 Agency Loan and the Phase R-2 Agency Loan, respectively, the form of
which is attached hereto as Attachment No. 8B and incorporated herein by reference. Each
Promissory Note shall bear simple interest at the rate of one percent (1%) per annum,
commencing upon the date of funding under such Promissory Note and shall be for a term
ending on repayment in full of the Note but in no event later than the earlier to occur of (a) fifty-
eighth (58th) year after recordation of the Release of Construction Covenants, or (b) December
31, 2075, on which date all principal and accrued but unpaid interest shall be paid in full. Each
Note shall be non-recourse to the Developer. Each Promissory Note shall be payable from a
portion of "Residual Receipts" generated by the Phase to which such Promissory Note relates as
set forth in Section 314.2 and shall be secured by an Agency Deed of Trust.
"Phase R-2" shall mean the Phase of construction of the Project, which shall include the
development of approximately forty (40) Rental Units on the Rental Portion of the Property and
shall include any Additional Properties designated for Phase R-2 which are added to the Project
pursuant to Section 207 hereof. Specifically, Phase R-2 will be constructed within the area
identified on the Site Map as "Lot 2;" "Lot 3" and "Lot 4."
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"Phase R-2 Agency Loan" is defined in Section 314.1.
"Phase R-2 Outside Closing Date" means the last date the Phase R-2 Closing may occur
as described in Section 201.4.
"Portion(s) or Phase(s)" means the portion(s) or phases(s) of Phase FS being separately
conveyed.
"Project Area" means the project area for the Redevelopment Plan.
"Project" is defined in Recital F.
"Property Manager" is defined in Section 401.9.
"Purchase Price" shall mean the price to be paid as consideration for the purchase of the
Site by the Developer from the Agency, as set forth in Section 201.
"RAP" is defined in Section 206.4.
"Redevelopment Plan" means the Redevelopment Plan for the Merged Redevelopment
Project as approved by Ordinance No. 2662-2667 adopted by the City Council of the City of
Santa Ana on September 20, 2004, as amended.
"Regulatory Agreement" means the Regulatory Agreement which is to be recorded as an
encumbrance of each Phase of the Rental Portion of the Project in a form which is attached hereto as
Attachment No. 7 and incorporated herein, in accordance with Section 401.11. The Regulatory
Agreement may sometimes be referred to herein as the "Agency Developer CC&Rs" or the
"CC&Rs."
"Release of Construction Covenants" means the document which evidences the
Developer's satisfactory completion of the Developer Improvements, as set forth in Section 313
hereof, in the form of Attachment No. 6 hereto which is incorporated herein by reference.
"Remedial Work" is defined in Section 206.4.
"Rental Portion of the Project" means that portion of the Project that consists of the
Rental Units. The Rental Portion of the Project consists of four (4) lots as identified on the Site
Map and shall be constructed in two separate Phases (Phase R-1 and Phase R-2).
"Rental Unit" or "Rental Units" means the Housing Unit(s) that is/are constructed and
developed within the Rental Portion of the Project, all of which shall be rented or lease to
Extremely Low Income Households and/or Very Low Income Households as provided in this
Agreement.
"Report" means the preliminary title report, as described in Section 202 hereof.
"Revised Budget" means the revised development budget prepared by the Developer and
approved by the Agency Executive Director, acting in her reasonable discretion, prior to and as a
condition precedent to Closing of the applicable Phase of the Rental Portion of the Project and,
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in the case of the Phase FS, prior to the Conveyance and as a Condition Precedent of the first
phase within Phase FS, in the same format as the Budget, showing Total Development Costs
based on the then most current information.
"Schedule of Performance" means the schedule prepared and approved by the
Developer and the Agency Executive Director within thirty (30) days of the Date of Agreement
setting out the dates and/or time periods within which certain obligations set forth in this
Agreement must be accomplished, subject to Section 507 below. The Schedule of Performance
is subject to revision from time to time as mutually agreed upon in writing between the
Developer and the Agency Executive Director. The Agency Executive Director is authorized to
initially approve the Schedule of Performance and make such revisions as she deems reasonably
necessary, subject to concurrence of the Developer.
"Scope of Development" means the Scope of Development attached hereto as
Attachment No. 5 and incorporated herein by reference, which describes the scope and quality of
development of the Developer Improvements to be constructed by the Developer pursuant to the
terms and conditions of this Agreement. The Scope of Development is subject to revision from
time to time as mutually agreed upon in writing between the Developer and the Agency
Executive Director. The Agency Executive Director is authorized to make such revisions as he
or she deems reasonably necessary, subject to the concurrence of the Developer.
"Segura Parcels" are shown on the Site Map and described in Attachment No. IA.
"Segura Purchase Agreements" is defined in Recital E.
"Site" has the meaning set forth in Recital E.
"Site Condition" is defined in Section 206.2.
"Site Improvements" means all existing, as of the date hereof, above-ground structures
and underground basements, utility vaults and/or septic tanks, and any debris associated with
demolition of the foregoing, including without limitation such basements and/or septic tanks are
identified on Attachment No. 1.
"Site Map" means the map which is attached hereto as Attachment No. 1 and
incorporated herein by reference.
"Site Plan Review Fee" means the fee imposed pursuant to City Council Resolution
No. 2009-030, Section VIII, Revenue Account No. 5409, as amended from time to time.
"Soils and Geological Condition" means the condition of the soil and its stability as it
relates to the developability of the Site.
"Station District" is defined in Recital E.
"Tax Credit Regulatory Agreement" shall mean the regulatory agreements which shall
be recorded against each Phase of the Rental Portion of the Site (or any portion thereof) with
respect to the issuance of Tax Credits.
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"Tax Credits" shall mean federal low income housing tax credits granted pursuant to
Section 42 of the Internal Revenue Code and/or, if applicable, state tax credits pursuant to
California Revenue and Taxation Code Sections 17057.5, 17058, 23610.4 and 23610.5 and
California Health & Safety Code Sections 50199, et seq.
"TCAC" means the California Tax Credit Allocation Committee, the allocating agency
for Tax Credits in California.
"Third Party Costs" means Site Plan Review Fees and those amounts actually paid or
obligations incurred for work actually done by those consultants, contractors and advisors of the
Developer listed on Attachment No. 13 and incorporated herein by reference not to exceed
Two Hundred Sixty-Five Thousand Dollars ($265,000).
"Title Company" is defined in Section 202.
"Title Policy" is defined in Section 203.
"Total Development Costs" means the total development costs for the Developer
Improvements for each Phase as shown on the Budget and the Revised Budget.
"Transferee" is defined in Section 602.1.
"Transferor" is defined in Section 602.1.
"Very Low Income" and/or "Very Low Income Households" shall mean very low
income households as defined in Health & Safety Code Section 50105.
200. CONVEYANCE OF THE SITE.
201. Conveyance of the Site and Escrow; Consideration. Subject to all of the terms
and conditions of this Agreement, the Agency shall convey fee title to each Phase of the Site to
the Developer, and the Developer agrees to accept fee title to each Phase of the Site. The parties
specifically recognize and acknowledge that Phase FS will close in two or more Portions or
Phases, with the specific Portions or Phases subject to the mutual agreement of the parties. The
Conditions Precedent to Closing, and all of the other provisions of this Section 201, shall be
applicable to each such Portion or Phase of Phase FS being Conveyed. With respect to Phase
R-1, the Agency shall use commercially reasonable efforts to acquire the Segura Parcels and the
Additional Property applicable to Phase R-1 on or before September 15, 2010, if Developer is
awarded a reservation of Tax Credits for Phase R-1 in the second Tax Credit round of 2010, and
otherwise forty-five (45) days prior to submission date of a Tax Credit application to TCAC for
Phase R-1 if Developer does not receive a reservation of Tax Credits in the second round of
2010, as all such dates may be extended by a CEQA challenge, and, with respect to Phase R-2,
forty-five (45) days prior to the date of any submission of a Tax Credit application to TCAC with
respect to the Additional Properties included in each applicable Phase, subject to force rnajeure
resulting from a CEQA Challenge, but in no event shall the Agency be required to undertake or
complete such acquisition by use of its power of eminent domain. The Purchase Price for each
Phase of the Site shall be One Dollar ($1.00). In implementation of the Conveyances, the parties
shall open escrow (each, an "Escrow") with Old Republic Title Company, or another escrow
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company mutually satisfactory to both parties (the "Escrow Agent") within fifteen (15) days
after the Date of Agreement. In the event that the Segura Parcels have not been acquired by the
Agency on or before September 15, 2010 (if Developer is awarded a reservation of Tax Credits
for Phase R-1 in the second Tax Credit round of 2010, and otherwise forty-five (45) days prior to
submission date of a Tax Credit application to TCAC for Phase R-I if Developer does not
receive a reservation of Tax Credits in the second round of 2010, as all such dates may be
extended by a CEQA challenge), the Developer shall redesign Phase R-1 so as to exclude the
Segura Parcels in which event Developer's obligations with respect to Phase R-1 shall be
extended by the time necessary for such redesign. If and to the extent the Additional Properties
and/or Segura Parcels have been acquired by the Agency within the time frame set forth herein,
the acquired Additional Parcels and/or Segura Parcels shall become part of the Site.
201.1 Costs of Escrow. The Agency shall pay the premium for the Title Policy
as set forth in Section 203 hereof, recording fees, if any, and the documentary transfer taxes, if
any, due with respect to each Conveyance ("Agency Title Policy Costs"). The Developer shall
pay for any additional costs with respect to title insurance for each Conveyance, including the
cost of an ALTA policy, any surveys or inspections necessary for the issuance of an ALTA
policy or any endorsements requested by the Developer pursuant to Section 203 not paid by the
Agency as part of the Agency Title Policy Costs ("Developer Title Policy Costs"). All other
usual fees, charges, and costs which arise from the Escrows shall be split 50/50.
201.2 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of the Agency and Developer, and the Escrow Agent to whom these instructions are
delivered is hereby empowered to act under this Agreement. The parties hereto agree to do all
acts reasonably necessary to close this Escrow in the shortest possible time. Insurance policies
for fire or casualty are not to be transferred, and Agency will cancel its own policies, if any, with
respect to each Phase after the Closing associated with such Phase. All funds received in the
Escrow for a particular Phase shall be deposited with other escrow funds in a general escrow
account(s) and may be transferred to any other such escrow trust account in any State or National
Bank authorized to do business and currently doing business in the State of California. All
disbursements shall be made by check from such account.
If in the opinion of either party it is necessary or convenient in order to
accomplish a Closing, such party may require that the parties sign supplemental escrow
instructions; provided that if there is any inconsistency between this Agreement and the
supplemental escrow instructions, then the provisions of this Agreement shall control. The
parties agree to execute such other and further documents as may be reasonably necessary,
helpful or appropriate to effectuate the provisions of this Agreement. Each Closing shall take
place when both the Agency's Conditions Precedent and the Developer's Conditions Precedent
as set forth in Section 204 have been satisfied with respect to the applicable Phase. Escrow
Agent is instructed to release the Agency's and Developer's escrow closing statements to the
respective parties.
201.3 Authority of Escrow Agent. With respect to the Closing for each Phase,
the Escrow Agent is authorized to, and shall:
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(a) Pay and charge the Agency for the Agency Title Policy Costs, and
any amount necessary to place title in the condition necessary to satisfy Section 202 of this
Agreement.
(b) Pay and charge the Developer and Agency each 50% of escrow
fees, charges, and costs payable under Section 201.1 of this Agreement, excluding documentary
transfer taxes.
(c) Pay and charge the Developer for the Developer Title Policy Costs.
(d) Record the Grant Deed, Regulatory Agreement, Notice of
Affordability Restrictions, as to the Rental Portion of the Project, Agency Deed of Trust for such
Phase, and any and all other recordable documents when both the Developer's Conditions
Precedent and the Agency's Conditions Precedent for such Phase have been fulfilled, or waived
by the Developer or Agency, respectively.
(e) Do such other actions as necessary, including obtaining the
applicable Title Policy, to fulfill its obligations under this Agreement.
(f) Within the discretion of the Escrow Agent, direct the Agency and
Developer to execute and deliver any instrument, affidavit, and statement, and to perform any act
reasonably necessary to comply with the provisions of FIRPTA and any similar state or federal
act or regulation promulgated thereunder. The Agency agrees to execute a Certificate of
Non-Foreign Status by individual transferor and/or a Certification of Compliance with Real
Estate Reporting Requirement of the 1986 Tax Reform Act for each Phase as may be required by
the Escrow Agent, on the form to be supplied by the Escrow Agent_
(g) Prepare and file with all appropriate governmental or taxing
authorities a uniform settlement statement, closing statement, tax withholding forms including an
IRS 1099-S form, and be responsible for withholding taxes, if any such forms are provided for or
required by law.
201.4 Closing. Each Phase shall close (each a "Closing") within thirty (30) days
of the satisfaction of all of the Agency's and Developer's Conditions Precedent to Closing for
such Phase as set forth in Section 204 hereof, with respect to each Phase but in no event later
than (a) the earlier to occur of (i) one hundred fifty days after Developer receives a preliminary
reservation of Tax Credits for Phase R-1 (with Developer entitled to apply for Tax Credits for
four consecutive rounds), or March 31, 2013 ("Phase R-1 Outside Closing Date"), (b) the earlier
to occur of (i) one hundred fifty days after Developer receives a preliminary reservation of Tax
Credits for Phase R-2 (with Developer entitled to apply for Tax Credits for four consecutive
rounds) or March 31, 2014 ("Phase R-2 Outside Closing Date"), and (c) January 31, 2011 for the
first Closing with respect to Phase FS ("Phase FS Outside Closing Date") and January 31, 2012,
for the final Closing with respect to Phase FS (the "Final Phase FS Outside Closing Date"),
subject to extensions due to (x) events of force majeure pursuant to Section 507 (provided, that,
no extension of the Phase R-1 Outside Closing Date, the Phase R-2 Outside Closing Date or the
Phase FS Outside Closing Date due to force majeure shall be longer than twelve (12) months
unless such extension results from CEQA challenge), or (y) written extensions made by the
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Developer and Agency Executive Director (the "Outside Closing Date"). In the event a Closing
fails to occur for any Phase by the applicable Outside Closing Date as a result of the failure to
obtain Tax Credits, in spite of Developer's commercially reasonable efforts to obtain same, the
Developer shall not be deemed to be in Default under this Agreement, but the Agency may elect
to terminate this Agreement with respect to such Phase. Each Closing shall occur at a location
within Orange County at a time and place reasonably agreed on by the parties. The "Closing"
shall mean the time and day the Grant Deed for the applicable Phase is filed for record with the
Orange County Recorder. The "Closing Date" shall mean the day on which each applicable
Closing occurs. Concurrently with the Closing for the first Portion or Phase of Phase FS,
Agency and Developer shall enter into a right of entry agreement, in a form reasonably
acceptable to the parties, which will include indemnities and insurance provisions in favor of
Agency and which permits Developer to enter upon the balance of Phase FS which has not then
been Conveyed to Developer for the purpose of grading and site preparation.
201.5 Closing Procedure. Escrow Agent shall close Escrow for each Phase, as
follows:
(a) Record the Grant Deed for such Phase with instructions for the
Recorder of Orange County, California to deliver the Grant Deed to the Developer;
(b) Record the Agency Deed of Trust for Phase R-1, Phase R-2, or
Phase FS, as applicable with instructions for the Recorder of Orange County, California to
deliver the Agency Deed of Trust to the Agency;
(c) Record the Regulatory Agreement for Phase R-1 or Phase R-2, as
applicable (but not for Phase FS since there will be no Regulatory Agreement associated with
Phase FS) with instructions for the Recorder of Orange County, California to deliver the
Regulatory Agreement to the Agency;
(d) Instruct the Title Company to deliver the applicable Title Policy to
the Developer;
(e) Deliver the Promissory Note to the Agency for Phase R-1,
Phase R-2, or Phase FS, as applicable;
(f) File any informational reports required by Internal Revenue Code
Section 6045(e), as amended, and any other applicable requirements;
(g) Deliver the FIRPTA Certificate for such Phase, if any, to the
Developer; and
(h) Forward to both the Developer and Agency a separate accounting
of all funds received and disbursed for each party and copies of all executed and recorded or
filed documents deposited into Escrow, with such recording and filing date and information
endorsed thereon.
202. Review of Title. The Developer shall, at its cost and expense, secure a survey of
each Phase of the Site. Within thirty (30) days after the Date of Agreement, the Agency shall
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cause Old Republic Title Company, or another title company mutually agreeable to both parties
(the `"Title Company"), to deliver to the Developer a standard preliminary title report (the
"Report") with respect to the title to the Site, together with legible copies of the documents
constituting title exceptions (the "Exceptions") set forth in the Report. The Developer shall have
the right to approve or disapprove in its sole discretion (i) the Report, (ii) the Exceptions,
(iii) any surveys delivered to it by Agency or ordered by Developer, (iv) the availability and cost
of any title endorsements the Developer or its lenders may desire, and (v) any other matters
pertaining to title (collectively, the "Title Matters"); provided, however, that the Developer
herein approves the following Exceptions:
(a) the Redevelopment Plan;
(b) the lien of any nondelinquent taxes and assessments (to be prorated
at Close of Escrow) with respect to each Phase; and
(c) the provisions of the Grant Deed.
The Developer shall have one hundred twenty (120) days from the Date of
Agreement to give written notice to the Agency and Escrow Holder of the Developer's approval
or disapproval of any Title Matters. The Developer's failure to give written disapproval within
such time limit shall be deemed approval of all Title Matters. If the Developer notifies the
Agency of its disapproval of any Title Matter, the Agency shall have the right, but not the
obligation, within ten (10) business days after receiving written notice of the Developer's
disapproval, to notify the Developer that it will cause the same to be cured at the Agency's sole
cost to the Developer's satisfaction. If the Agency cannot or does not timely so elect by timely
delivery of notice, the Developer shall have ten (10) business days after the expiration of such
ten (10) business day period to either give the Agency written notice that the Developer elects to
proceed with the purchase of the Phase affected thereby subject to the disapproved Title
Matter(s) or to give the Agency written notice that the Developer elects to terminate the rights
and obligation of the parties under this Agreement with respect to such Phase. The Developer
shall have the right to approve or disapprove any subsequent title exceptions not caused by the
Developer and reported after the Developer has approved the Title Matters in the manner set
forth above, including Title Matters associated with any Additional Properties. If the Developer
disapproves any subsequent title exception, and the matter cannot be solved to the satisfaction of
the parties, the Developer shall have the right to terminate the rights and obligations of the
parties under this Agreement with respect to the Phase affected thereby. Except as set forth
herein, the Agency shall not voluntarily create any new exceptions to title following the Date of
Agreement.
203. Title Insurance. Concurrently with recordation of each Grant Deed conveying
title to the applicable Phase, there shall be issued to the Developer a CLTA (or, at Developer's
request, an ALTA) owner's policy of title insurance (each, a '"Title Policy") in the amount of the
unrestricted fair market value of the portion of the Site being conveyed, as agreed upon by the
parties prior to Closing, together with such endorsements as the Developer arranges with the
Title Company during the title review period described in Section 202, issued by the
Title Company insuring that the title to such Phase is vested in the Developer with no exceptions
other than those approved by the Developer pursuant to Section 202. The Title Company shall
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provide the Agency with a copy of each such Title Policy. Any additional costs, including the
cost of an ALTA policy, any surveys or inspections necessary for the issuance of an ALTA
policy, or any endorsements requested by the Developer, shall be borne by the Developer.
204. Conditions of Closing. The Closing for each Phase is conditioned upon the
satisfaction of the following terms and conditions of such Phase within the times designated
below.
204.1 Agency's Conditions of Closing. The Agency's obligation to proceed
with the Closing for each Phase is subject to the fulfillment, or waiver by the Agency Executive
Director, of each and all of the conditions precedent (a) through (i), inclusive, described below
with respect to such Phase (the "Agency's Conditions Precedent"), which are solely for the
benefit of Agency, and which shall be fulfilled or waived on or before the applicable Outside
Closing Date. Any condition not specifically waived prior to such Closing shall be deemed
waived upon Conveyance for the Phase associated with such Closing:
(a) No Default. Prior to the Close of Escrow for such Phase, the
Developer has not committed and failed to cure any default in any of its obligations under the
terns of this Agreement with respect to such Phase and all representations and warranties of the
Developer contained herein shall be true and correct in all material respects.
(b) Payment of Closing Costs and Purchase Price. The Developer
shall have deposited the Purchase Price for such Phase and all costs payable by Developer of
such Closing into Escrow in accordance with Section 201 into Escrow.
(c) Execution of Documents. The Developer shall have executed and,
as necessary for recordation, shall have had acknowledged, any documents required hereunder
with respect to such Phase and shall have delivered such documents into Escrow (including,
without limitation, the Notice of Affordability Restrictions).
(d) Conceptual Site Plan and Land Use Approvals. The Developer
shall (i) have obtained City and Agency Executive Director approval of the Conceptual Site Plan
and final Construction Drawings for all of the Developer Improvements in such Phase, (ii) have
obtained all Land Use Approvals necessary for the development of such Phase, as set forth in
Section 303 hereof, and (iii) take such actions as are necessary to insure that building permits for
the development of such Phase shall be issued concurrently with Closing of the portion of the
Site associated with such Phase, or demonstrate to Agency's reasonable satisfaction that building
permits for the development of such Phase are ready to be issued but for the payment of fees
associated therewith, and that the funds necessary for the payment of such fees has been
allocated, reserved and committed in the construction financing or equity contributions which are
available upon and after the date of the Closing.
(e) Insurance. The Developer shall have provided proof of insurance
as required by Section 306 hereof with respect to such Phase.
(f) Financing. The Agency shall have approved the Evidence of
Construction Financing of the Developer Improvements for such Phase as provided in
Section 316.1 hereof and the financing consistent with the Evidence of Construction Financing
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for such Phase shall have closed and funded or be ready to close and fund at the applicable
Closing.
(g) General Contractor Contract. The Developer shall have provided
or caused to be provided to the Agency Executive Director a copy of a valid and binding contract
between the Developer and one or more California-licensed general contractors for the
construction of the Developer Improvements associated with such Phase, certified by the
Developer to be a true and correct copy thereof, or shall have provided to the Agency Executive
Director a copy of the construction budget for such Phase if the Developer elects to act as the
general contractor/owner-builder.
(h) Guaranty. The Developer shall obtain and provide for the benefit
of the Agency a separate guaranty for each Phase (the "Guaranty") in a form reasonably
acceptable to the Agency Executive Director, pursuant to which The Related Companies, L.P., a
New York limited partnership, as guarantor of Phase R-1 and Phase R-2 ("Phase R-1 and
Phase R-2 Guarantor"), and such entity as may be approved by the Agency Executive Director,
acting in her sole and absolute discretion as the Guarantor of Phase FS, if there is a transfer or
assignment of Phase FS ("Phase FS Guarantor") (collectively, the "Guarantor(s)"), shall
guaranty completion of the construction of each applicable Phase or Phases (1) substantially
within the time limits set forth herein and in the Schedule of Performance, (2) substantially in
accordance with the Scope of Development, as the same may be modified from time to time in
accordance with the terms of this Agreement, (3) free and clear of any mechanics liens,
materialmen's liens and equitable liens, and (4) all costs of construction shall be paid prior to
delinquency. In addition, the Guaranty will provide for the waiver by Guarantor of any and all
rights, waivers and defenses which may otherwise be available under state or federal law to
prevent the Agency's enforcement of the Guarantor's obligations under the Guaranty.
(i) Revised Budget. The Developer has prepared and the Agency has
approved the Revised Budget for the applicable Phase.
204.2 Developer's Conditions of Closing. The Developer's obligation to
proceed with the Closing of each Phase is subject to the fulfillment or waiver by the Developer
of each and all of the conditions precedent (a) through (n), inclusive, described below (the
"Developer's Conditions Precedent"), which are solely for the benefit of the Developer, and
which shall be fulfilled or waived on or before the applicable Outside Closing Date. Any
condition not specifically waived prior to Closing shall be deemed waived upon Conveyance for
the Phase associated with such Closing:
(a) No Default. Prior to the Close of Escrow for such Phase, the
Agency has not committed and failed to cure any defaults in any of its obligations under the
terms of this Agreement with respect to such Phase and all representations and warranties of the
Agency contained herein shall be true and correct in all material respects.
(b) Execution of Documents. The Agency shall have executed, and as
necessary for recordation, shall have had acknowledged, the applicable Grant Deed and any
other documents required hereunder with respect to such Phase, and shall have delivered such
documents into Escrow.
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(c) Payment of Closing Costs. Prior to the Close of Escrow for such
Phase, Agency shall have paid all required costs of such Closing into Escrow in accordance with
Section 201.
(d) Review and Approval of Title. Developer shall have reviewed and
approved the Condition of Title of such Phase, as provided in Section 202.
(e) Financing. Developer shall have obtained, and the Agency shall
have approved Evidence of Construction Financing for such Phase consistent with the approved
Evidence of Construction Financing of the Developer Improvements for such Phase as provided
in Section 316.1, and the financing for such Phase shall have closed and funded or be ready to
close and fund concurrent with the applicable Closing.
(f) Title Policy. The Title Company shall, upon payment of Title
Company's regularly scheduled premium, have agreed to issue the Title Policy for each Phase
upon each Closing, in accordance with Section 203.
(g) Environmental. The Developer shall have approved the
Environmental Condition of the portion of the Site included in the applicable Phase and shall not
have elected to cancel Escrow and terminate this Agreement pursuant to Section 206.2 hereof
and the Remedial Work (if required pursuant to that Section) shall have been completed as
provided herein.
(h) Conceptual Site Plan and Land Use Approvals. The Developer
shall (i) have obtained City and Agency Executive Director approval of Conceptual Site Plan and
final Construction Drawings for all of the Developer Improvements in such Phase, (ii) have
obtained all Land Use Approvals necessary for the development of such Phase, including,
without limitation, Subdivision Map Act compliance, any necessary zone change and/or approval
of any required density bonus, and (iii) take such actions as are necessary to insure that building
permits for the development of such Phase shall be issued concurrently with the Conveyance of
the portion of the Site associated with such Phase.
(i) Soils and Geological Condition. Developer shall have approved
the Site Condition with respect to such Phase in accordance with Section 206.1 hereof.
0) Relocation. The Agency shall have relocated all tenants and other
inhabitants of the portion of the Site on which such Phase is or will be located in accordance with
all existing federal, state and local laws.
(k) Site improvements. The portion of the Site on which such Phase is
or will be located shall be free of all Site Improvements.
(1) Environmental Condition. The portion of the Site on which such
Phase is or will be located shall be free of all Hazardous Materials, including, without limitation,
asbestos and lead-based paint, all in accordance with Section 206.7 below, and the Developer
shall have received and approved the Abatement Report described in Section 206.7 below.
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(m) Condition of Site. The Agency shall be unconditionally committed
to deliver (i) fee title to the portion of Site on which such Phase is or will be located in
accordance with the requirements of the Scope of Development, and (ii) possession of such
portion of the Site on which such Phase is or will be located subject to no rights of tenants in
possession.
(n) Revised Budget. The Developer has prepared and the Agency has
approved the Revised Budget for the applicable Phase.
205. Representations and Warranties.
205.1 Agency Representations. The Agency represents and warrants to the
Developer as follows:
(a) Authority. The Agency is a public body, corporate and politic,
existing pursuant to the California Community Redevelopment Law (California Health and
Safety Code Section 33000), which has been authorized to transact business pursuant to action of
the City. The Agency has full right, power and lawful authority to grant and convey the Site as
provided herein and the execution, performance and delivery of this Agreement by the Agency
has been fully authorized by all requisite actions on the part of the Agency.
(b) FIRPTA. The Agency is not a "foreign person" within the
parameters of FIRPTA or any similar state statute, or is exempt from the provisions of FIRPTA
or any similar state statute, or the Agency has complied and will comply with all the
requirements under FIRPTA or any similar state statute.
(c) No Conflict. To the best of the Agency's knowledge, the Agency's
execution, delivery and performance of its obligations under this Agreement will not constitute a
default or a breach under any contract, agreement or order to which the Agency is a party or by
which it is bound.
(d) Notices of Violation. The Agency has no knowledge of, nor has
Agency received any notice of or know of any basis for, any violations of laws, statutes,
regulations, ordinances, other legal requirements with respect to the Site (or any part thereof) or
with respect to the use, occupancy or construction thereof, or any investigations by any
governmental or quasi-governmental authority into potential violations thereof or any
condemnation or eminent domain proceedings pending or threatened with respect to the Site or
any portion thereof. In the event the Agency receives notice of any such violations or
investigations affecting the applicable Phase prior to the Closing of such Phase, the Agency
promptly shall notify the Developer thereof.
(e) Leases and Contracts. Except as and to the extent disclosed to the
Developer, in writing, there are no leases or other contracts to which the Agency is a party which
would affect the property comprising the applicable Phase comparison Site.
(f) Delivery of Materials and Documents. The Agency's staff has
delivered all relevant materials and documents in its possession and pertaining to the Site to the
Developer.
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Until the Closing, the Agency shall, upon learning of any fact or condition which
would cause any of the warranties and representations in this Section 205.1 not to be true as of
Closing, immediately give written notice of such fact or condition to the Developer. Such
exception(s) to a representation shall not be deemed a breach by the Agency hereunder, unless such
representation was false when made, but shall constitute a matter which the Developer shall have a
right to reasonably approve or disapprove. If the Developer elects to close Escrow following
disclosure of such information, the Agency's representations and warranties contained herein shall be
deemed to have been made as of the Closing, subject to such disclosed matter(s). If, following the
disclosure of such matter, the Developer elects to not close Escrow, then this Agreement and the
Escrow shall automatically terminate and neither party shall have any further rights, obligations or
liabilities hereunder. The representations and warranties set forth in this Section 205.1 shall survive
the Closing.
205.2 Developer's Representations. The Developer represents and warrants to
the Agency as follows:
(a) Authority. The Developer is a duly organized California limited
liability company and is authorized to do business and is in good standing under the laws of the
State of California. The copies of the documents evidencing the organization of the Developer
which have been delivered to the Agency are true and complete copies of the originals, as
amended to the Date of Agreement. The Developer has full right, power and lawful authority to
accept the Conveyance of the Site and undertake all obligations as provided herein and the
execution, performance and delivery of this Agreement by the Developer has been fully
authorized by all requisite actions on the part of the Developer.
(b) Experience. The Developer (or its managing member) is an
experienced developer of residential projects similar in size, scope, and quality to the Developer
Improvements to be constructed pursuant to this Agreement.
(c) No Conflict. To the best of the Developer's knowledge, the
Developer's execution, delivery and performance of its obligations under this Agreement will
not constitute a default or a breach under any contract, agreement or order to which the
Developer is a party or by which it is bound.
(d) No Developer Bankruptcy. Developer is not the subject of a
bankruptcy proceeding.
(e) Compliance with Laws. The Developer warrants and represents
that it will carry out the development of the Site in conformity with all Governmental
Requirements, including, without limitation, all applicable state and federal labor standards and
requirements, the City zoning and development standards, building, plumbing, mechanical and
electrical codes, and all other provisions of the City's Municipal Code, and all applicable
disabled and handicapped access requirements, including without limitation the Americans With
Disabilities Act, 42 U.S.C. Section 12101, etseq., Government Code Section 4450, etseq.,
Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code
Section 51, et seq.
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Until the Closing, the Developer shall, upon learning of any fact or condition
which would cause any of the warranties and representations in this Section 205.2 not to be true
as of Closing, immediately give written notice of such fact or condition to the Agency. Such
exception(s) to a representation shall not be deemed a breach by the Developer hereunder, but
shall constitute an exception which the Agency shall have a right to approve or disapprove if
such exception would have an effect on the value and/or operation of the Site. If the Agency
elects to close Escrow following disclosure of such information, the Developer's representations
and warranties contained herein shall be deemed to have been made as of the Closing, subject to
such exception(s). If, following the disclosure of such information, the Agency elects to not
close Escrow, then this Agreement and the Escrow shall automatically terminate and neither
party shall have any further rights, obligations or liabilities hereunder. The representations and
warranties set forth in this Section 205.2 shall survive the Closing.
206. Condition of the Site.
206.1 Investigation of Site. Prior to the execution of this Agreement, Agency
has caused a "Phase 1" investigation of the Environmental Condition of the Site which was
undertaken by Converse Consultants, identified as:
(i) CONVERSE PROJECT NO. 10-42-118-01
612,614,622, AND 626-628 EAST SANTA ANA BOULEVARD
604,606,614-618,620 AND 622 NORTH LACY STREET
601-603, 609, 613, and 617 EAST 6TH STREET
709 AND 711 EAST 6TH STREET
609 AND 611 NORTH MINTER STREET (Block 1)
SANTA ANA, CALIFORNIA
(ii) CONVERSE PROJECT NO. 10-42-118-02
601, 605-607, 609, 611 NORTH LACEY STREET
801 BROWN STREET (Block 2)
SANTA ANA, CALIFORNIA
(iii) CONVERSE PROJECT NO. 10-42-118-08
501, 505, AND 511 EAST 5TH STREET
501 'h - 507 MORTIMER STREET (Block A)
SANTA ANA, CALIFORNIA
(iv) CONVERSE PROJECT NO. 10-42-118-09
606,610-612,616, AND 620 EAST 5TH STREET (Block B)
SANTA ANA, CALIFORNIA
(v) CONVERSE PROJECT NO. 10-42-118-10
712 EAST 5TH STREET (Block E)
SANTA ANA, CALIFORNIA
("Agency Environmental Site Assessment"), with the cost of such investigation being bome by
the Agency. Agency represents and warrants that Developer has been provided a copy of all
reports and test results produced in connection with the environmental investigation of the Site
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by Agency. If Developer desires, Developer shall also cause a "Phase 1" and/or "Phase 2"
investigation of the Environmental Condition of the Site to be undertaken
("Developer Environmental Site Assessment"), with the cost of such investigation(s) to be borne
by the Developer. Developer covenants that Agency has been or will be provided with all
reports and test results produced in connection with the Developer Environmental Site
Assessment. Agency and the Developer hereby represent and warrant to the other, except as set
forth in the Agency Environmental Site Assessment and the Developer Environmental Site
Assessment, that they have no Actual Knowledge, and have not received any notice or
communication from any governmental agency having jurisdiction over the Site, notifying such
party of, the presence of surface or subsurface zone Hazardous Materials in, on, or under the
Site, or any portion thereof.
The Developer shall reasonably approve or disapprove of the Environmental
Condition and the Soils and Geological Condition of the Site (the "Site Condition") in its sole
discretion within the time set forth in the Schedule of Performance. The Developer's approval of
the Site Condition shall be a Developer's Condition Precedent to the Closing. Except as set forth
in the next sentence of this paragraph, if the Developer disapproves the Environmental Condition
of the entire Site, then either party may terminate this Agreement by written notice to the other.
If the Developer disapproves the Environmental Condition of a Portion or Phase of Phase FS,
then the Developer may terminate this Agreement as to such disapproved Portion or Phase only
by written notice to the Agency, and approve the remaining Portion or Phase of Phase FS.
Pursuant to Section 206.3, the Agency may nullify such election on the terms and conditions set
forth therein. Notwithstanding the foregoing, the termination of this Agreement pursuant to this
Section 206.1 will not result in the termination of the Agreement with respect to any other Phase
(or in the case of Phase FS, Portion or Phase) of the Site already Conveyed to the Developer.
206.2 Studies and Reports. Prior to each Closing, representatives of the
Developer shall have the right of access to all portions of the Site for the purpose of obtaining
data and making surveys and tests necessary to carry out this Agreement, including the
investigation of the Site Condition for each Phase and structural/civil engineering work. Any
preliminary work undertaken an the Site by Developer prior to each Closing shall be done at the
sole expense of the Developer, and only after the Developer executes a right of entry agreement
(for any Portion or Phase of the Site that has not yet been subject to a Closing) in a form
reasonably acceptable to the Agency Executive Director. Any preliminary work shall be
undertaken only after securing any necessary permits from the appropriate governmental
agencies.
206.3 Remediation After Developer Elects To Terminate. Upon receipt of
Developer's notice to terminate based upon the Environmental Condition of the Site, Agency
may, at Agency's option, agree to cause the remediation of the Site in accordance with the
recommendations of Developer's Environmental Consultant, Developer's Environmental Site
Assessment and all Governmental Requirements ("Agency's Election to Remediate" ), provided,
Agency hereby agrees to make Agency's Election to Remediate in the event that Agency
reasonably estimates that the cost to conduct the Remedial Work for all of the Phases of the Site
will not exceed Two Hundred Fifty Thousand Dollars ($250,000.00) ("Remedial Work
Expenditure Cap"). In estimating the total cost of Remedial Work for all of the Phases of the
Site, Agency may make reasonable assumptions regarding the projected cost of Remedial Work
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for those Phases of the Site which it has not yet Conveyed to the Developer. Agency may
reserve a reasonable portion of the Remedial Work Expenditure Cap as necessary to fund the
cost for potential Remedial Work for those other Phases. Agency shall give notice to Developer
and Escrow Agent of such election and Developer's notice to terminate shall be ineffective;
provided, however, that Developer has approved of the scope of the Remedial Work and the
RAP prior to the commencement of such work.
If Agency makes Agency's Election to Remediate, then within a reasonable
period after giving notice to Developer that it intends to proceed with remediation of the Site,
Agency shall deliver to Developer for Developer's approval a proposed remedial action plan
("RAP") prepared by Agency's Environmental Consultant ("Agency's Environmental
Consultant"), which RAP shall be approved by the public agency asserting jurisdiction over the
remedial work to be performed pursuant to the RAP (the "Remedial Work"). The Remedial
Work shall assure the suitability of the Site for the development, occupancy and operation of the
Project and shall be performed in accordance with applicable Governmental Requirements and
Environmental Laws, and shall be conducted in accordance with the requirements of Health and
Safety Code Section 33459, et seq., in a manner which is intended to qualify for the immunity
which is provided by Health and Safety Code Section 33459.3.
Upon making Agency's Election to Remediate and receiving Developer's
approval of the RAP and the scope of the Remedial Work, Agency shall cause the Remedial
Work to be performed and completed continuously and diligently. Agency's compliance with
the provisions of this Section, and the issuance of a letter, certificate or other official writing by
all governmental agencies which have asserted jurisdiction over the remediation of the Site,
which provides that no further investigation, monitoring, remediation, response or removal is
currently necessary considering the development, occupancy and operation of the Project ("No
Further Action Letter"), and confirmation of the completion of the Remedial Work by
Developer's Environmental Consultant, shall each be a Developer's Condition Precedent to the
Closing for the applicable Phase and the Outside Closing Date for such Phase shall be extended
until such conditions are satisfied. Upon completion of the Remedial Work, Agency shall
deliver to Developer a certificate executed by the Agency's Environmental Consultant that the
Remedial Work has been completed in accordance with all applicable laws.
Notwithstanding the foregoing, if Developer, based upon Developer's
Environmental Site Assessment, Agency's Environmental Site Assessment and the RAP,
reasonably estimates that the Remedial Work cannot be completed within ten (10) weeks, then
Developer may terminate the Escrow and this Agreement by written notice to Agency; provided,
that such termination shall not apply to any Phase that has Closed prior to the date of such
termination. Each date for performance under this Agreement and the Schedule of Performance
shall be extended on a day-for-day basis for each day of delay as a result of the Remedial Work.
As an alternative to Agency causing the performance of the Remedial Work
pursuant to this Section, Developer may, at its sole and absolute discretion, propose
("Developer's Remediation Proposal") that Developer perform, or have performed, the Remedial
Work by written notice to Agency accompanied by an estimate of the cost of performing the
Remedial Work ("Developer's Remedial Work Estimate"). In the event that Developer's
Remedial Work Estimate is less than the Remedial Work Expenditure Cap, Agency shall elect to
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either (i) accept Developer's Remediation Proposal, in which event Developer shall perform the
Remedial Work in accordance with this Section and Agency shall reimburse Developer in an
amount not to exceed Developer's Remedial Work Estimate within thirty (30) days following
receipt by Agency of written request therefor by Developer, together with copies of invoices
and/or other such evidence as reasonably necessary to substantiate such costs and expenses, or
(ii) reject Developer's Remediation Proposal, in which event Agency shall perform the Remedial
Work in accordance with this Section. In the event that Developer's Remedial Work Estimate is
greater than the Remedial Work Expenditure Cap, Agency may elect to terminate the Escrow
and this Agreement, provided such termination shall be ineffective if Developer then elects to
perform the Remedial Work in accordance with this Section and bear any costs and expenses in
excess of the Remedial Work Expenditure Cap.
206.4 No Warranties As To Site; Release of Agency. Except as otherwise
expressly provided herein, the Site Condition upon delivery from the Agency to Developer shall
be "as-is," with no warranty expressed or implied by Agency, including without limitation,
presence of Hazardous Materials or the condition of the soil, its geology, the presence of known
or unknown seismic faults, or the suitability of the Site for the development purposes intended
hereunder.
From and after the date on which Developer completes grading with respect to
any Phase of the Site as evidenced by certification by the City's Building Official, and to the
extent that Developer does not object in writing to the Environmental Condition of such Phase
within ten (10) days following completion of such grading, the Developer shall waive, release
and discharge forever the Agency and the City, and their respective employees, officers, agents
and representatives, from all present and future claims, demands, suits, legal and administrative
proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses,
present and future ("Claim or Liability"), arising out of or in any way connected with the Site
Condition as it relates to such Phase, except (i) arising out of the willful misconduct of the
Agency or its employees, officers, agents or representatives; or (ii) if and to the extent the
Developer can demonstrate to a court of competent jurisdiction that the Agency and/or City were
the direct and proximate cause of the Site Condition which is the subject matter of the Claim or
Liability, including, without limitation, attorneys' fees; or (iii) for Agency's obligations under
Section 206.3. Upon the effectiveness of the release contemplated by this Section, the parties
acknowledge that the Agency's ownership would not be the direct and/or proximate cause of any
Site Condition if such Site Condition was in existence at the time of the Agency's acquisition
and continued during the Agency's ownership. In the event that Developer objects to the
Environmental Condition as described above, Developer may elect (at the time it objects to the
Environmental Condition) to accept such Environmental Condition, in which event the Agency
shall reimburse Developer for its actually incurred costs of any Remedial Work undertaken by
Developer to remediate the disapproved Environmental Condition; provided, however, that the
maximum amount of such reimbursement shall be equal to the portion of the Remedial Work
Expenditure Cap not previously expended pursuant to Section 206.3 above. In the event of such
election, Developer shall submit to Agency a description of the Remedial Work performed,
together with copies of invoices and/or such other evidence as reasonably necessary to
substantiate such costs and expenses, and Agency shall reimburse Developer within ten (10) days
of its receipt of such materials, subject to the cap set forth hereinabove. If Developer does not
elect to accept such Environmental Condition in its notice objecting to such Environmental
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Conditions, Agency may, within thirty (30) days of such written objection, elect in writing to
either remediate the Environmental Condition to the extent required to satisfy Developer's
objection or terminate this Agreement as to the applicable portion of the Site (but not as to any
other Phase of the Site which has Closed prior to such termination), in which case Developer
shall reconvey the applicable portion of the Site to the Agency and neither party shall have any
rights or obligations with respect to the other in connection with such portion of the Site.
Notwithstanding the foregoing, the termination of this Agreement pursuant to this Section 206.4
with respect to any Phase will not result in the termination of the Agreement with respect to any
other portion of the Site already Conveyed to the Developer.
The Developer acknowledges that it is aware of and familiar with the provisions
of Section 1542 of the California Civil Code which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Upon the effectiveness of the release set forth in this Section 206.4, the Developer
waives and relinquishes all rights and benefits which it may have under Section 1542 of the
California Civil Code.
206.5 Developer Precautions After Closing. Upon the Closing of any Phase,
the Developer shall take all reasonable precautions to prevent the release into the environment of
any Hazardous Materials in violation of law which are located in, on or under the portion of the
Site associated with such Phase. Such precautions shall include compliance with all
Governmental Requirements with respect to Hazardous Materials. In addition, the Developer
shall install and utilize such equipment and implement and adhere to such procedures as are
consistent with commercially reasonable standards as respects the disclosure, storage, use,
removal and disposal of Hazardous Materials.
206.6 Required Disclosures After Closing. After the Closing of any Phase, the
Developer shall notify the Agency, and provide to the Agency a copy or copies, of all
environmental permits, disclosures, applications, entitlements or inquiries relating to the portion
of the Site included within such Phase, including notices of violation, notices to comply,
citations, inquiries, clean-up or abatement orders, cease and desist orders, reports filed pursuant
to self-reporting requirements and reports filed or applications made pursuant to any
Governmental Requirement relating to Hazardous Materials and underground tanks. After the
Closing with respect to any Phase, the Developer shall report to the Agency, as soon as possible
after each incident, any unusual or potentially important incidents with respect to the
Environmental Condition of the portion of the Site included within such Phase.
After the Closing of any Phase, the event of a release of any Hazardous Materials
into the environment in violation of law on such Phase, the Developer shall, as soon as possible
after the release, furnish to the Agency a copy of any and all reports relating thereto and copies
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of all correspondence with governmental agencies relating to the release. Upon request, the
Developer shall furnish to the Agency a copy or copies of any and all other environmental
entitlements or inquiries relating to or affecting the Site including, but not limited to, all permit
applications, permits and reports including, without limitation, those reports and other matters
which may be characterized as confidential.
206.7 Abatement Report. Prior to the Close of Escrow for a Phase, the Agency
shall, at its sole cost and expense, deliver to the Developer a written report, reasonably
acceptable to the Developer, prepared by a licensed third party unrelated to the Agency or any
contractor(s) or subcontractor(s) undertaking any portion of the abatement of Hazardous
Materials associated with removal and abatement of any improvements currently on the Site,
confirming that all such Hazardous Materials have been properly abated and removed in
compliance with all applicable laws, rules and regulations (the "Abatement Report"). In
addition, concurrent with delivery of the Abatement Report to Developer with respect to a
particular Phase, the Agency shall deliver to Developer a letter from the provider of the
Abatement Report for such Phase authorizing the Developer and any other entity whose identity
was provided to Agency prior to the time the Agency enters into a contract for preparation and
delivery of the Abatement Report to rely on the Abatement Report.
Prior to entering into a contract to retain the provider of the Abatement Report, Agency
shall request from Developer the names of those parties Developer requires to be entitled to rely
on such Abatement Report. Promptly following such request, Developer shall deliver a list of
such names to Agency; provided, that, if Developer has not, as of such time, identified all of its
lenders and investors who will need to rely on such Abatement Report, Developer may deliver an
incomplete list to Agency and Agency shall add the names identified on such incomplete list to
the reliance provisions of such contract and use best efforts, at no additional cost to Agency, to
insert a requirement in such contract allowing the addition of more names to such list following
the execution of the contract.
206.8 Developer Site Condition Indemnity. Upon the Closing, Developer
agrees to indemnify, defend and hold Agency harmless from and against any claim, action, suit,
proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense
(including, without limitation, attorney's fees), resulting from, arising out of, or based upon the
Site Condition, including without limitation (i) the release, use, generation, discharge, storage or
disposal by Developer or by any individual or entity for which Developer bears the legal liability
including, but not limited to, officers, agents, employees or contractors of Developer
(collectively, the "Developer Parties") of any Hazardous Materials in violation of Environmental
Laws during the period of the Developer's ownership of the applicable Phase of the Site, on,
under, in or about, or the transportation of any such Hazardous Materials to or from, the Phase of
the Site by Developer or any of Developer Parties during the period of the Developer's
ownership of the Phase of the Site, and/or (ii) the violation, or alleged violation, by Developer or
any of Developer Parties of any Environmental Laws relating to the use, generation, release,
discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or
from, the Site during the period of the Developer's ownership of the applicable Phase of the Site.
This indemnity shall include, without limitation, any damage, liability, fine, penalty, cost or
expense arising from or out of any claim, action, suit, or proceeding for personal injury
(including sickness, disease or death), tangible or intangible property damage, compensation for
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lost wages, business income, profits or other economic loss, damage to the natural resource or
the environment, nuisance, contamination, leak, spill, release or other adverse effect on the
environment with respect to the applicable Phase of the Site.
206.9 Agency Environmental Indemnity. Upon the Closing, Agency agrees to
indemnify, defend and hold Developer and the Developer Parties harmless from and against any
claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive
damage, or expense (including, without limitation, attorneys' fees) resulting from, arising out of,
or based upon (i) the presence, release, use, generation, discharge, storage or disposal of any
Hazardous Materials in violation of Environmental Laws during the period prior to the Closing,
on, under, in or about, or the transportation of any such Hazardous Materials to or from the Site,
during the period prior to the Closing; or (ii) the violation, or alleged violation, of any
Environmental Laws relating to the presence, use, generation, release, discharge, storage,
disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Site
during the period prior to the Closing. This indemnity shall include, without limitation, any
damage, liability, fine, penalty, cost or expense arising from or out of any claim, action, suit or
proceeding for personal injury (including sickness, disease or death), tangible or intangible
property damage, compensation for lost wages, business income, profits or other economic loss,
damage to the natural resource or the environment, nuisance, contamination, leak, spill, release
or other adverse affect on the environment.
207. Agency Acquisition of Additional Properties. The Agency and the Developer
acknowledge that the Agency is continuing its attempts to acquire all of the Additional Properties
which it does not presently own. If and to the extent the Agency is successful in acquiring some
or all of the Additional Properties forty-five (45) days prior to the (i) Closing of the applicable
Portion or Phase of Phase FS, or (ii) date of any submission of a Tax Credit application to TCAC
for the Phase of the Rental Portion of the Project to which each such Additional Property relates
(as shown on the Site Map), the Agency shall send written notice thereof to Developer (the
"Additional Property Notice"). Upon receipt of the Additional Property Notice, the Agency and
the Developer shall negotiate in good faith to amend the Scope of Development for the Phase or
Phases to which such Additional Properties relate, as well as an increase in the amount of the
Agency Loan for Phase R-2, to the extent such Additional Properties relates to Phase R-2. From
and after the date set forth on the Schedule of Performance for each Phase, the Agency shall
immediately discontinue all attempts to acquire Additional Properties for such Phase and shall
not send any Additional Property Notices for such Phase. The Agency Executive Director shall
have the authority to approve the amended Scope of Development for affected Phases and the
increased amount of the Agency Loan associated therewith, and any such amendments or
increases shall be reflected in the Implementation Agreement(s) for the applicable Phases. The
inclusion of Additional Properties for a Phase shall not revise the Purchase Price as to the
applicable Phase.
208. Agency Acquisition of the Segura Parcels. The Agency and the Developer
acknowledge that the Agency has concurrently herewith approved the Segura Purchase
Agreements. Developer hereby approves the condition of title and Site Condition with respect to
the Segura Parcels. In reliance on that approval, Agency agrees to use commercially reasonable
efforts to acquire the Segura Parcels pursuant to the Segura Purchase Agreements. Upon
acquisition of the Segura Parcels by the Agency, the Segura Parcels will become a part of the
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Site and be developed in conjunction with Phase R-1. In the event that the Agency fails to
acquire the Segura Parcels on or before September 15, 2010 (if Developer is awarded a
reservation of Tax Credits for Phase R-1 in the second Tax Credit round of 2010, and otherwise
forty-five (45) days prior to submission date of a Tax Credit application to TCAC for Phase R-1
if Developer does not receive a reservation of Tax Credits in the second round of 2010, as all
such dates may be extended by a CEQA challenge), the Developer shall redesign Phase R-1
excluding the Segura Parcels, in which event Developer's obligations with respect to Phase R-1
shall be extended by the time necessary for such redesign.
209. Separate Phases. The parties acknowledge and agree that Phase R-1, Phase R-2
and Phase FS may be separately owned, financed and developed, and that, in the event of the
separate ownership of the Phases, a Default under this Agreement relating to one Phase, the
applicable Phase Regulatory Agreement, applicable Phase Promissory Note or Agency Deed of
Trust shall not be considered a Default relating to any other Phase; in other words, there shall be
no cross-defaults between Phases or between the ownership entities for each Phase. If such
separation occurs, the owner of Phase R-1 shall be solely and exclusively responsible for the
Phase R-1 rights and obligations under this Agreement, the owner of Phase R-2 shall be solely
and exclusively responsible for the Phase R-2 rights and obligations under this Agreement, and
the owner of Phase FS shall be solely and exclusively responsible for the Phase FS rights and
obligations under this Agreement.
210. Timing of Agency Obligations. With respect to the Segura Parcels, the Agency
shall, within one hundred twenty (120) days of acquisition of each such parcels, cause each of
the following to occur (collectively, the "Agency Site Obligations"): (a) relocate all tenants and
other inhabitants thereof in accordance with all existing federal, state and local laws, (b) cause
such parcel to be free of all Site Improvements, and (c) complete remediation of any Hazardous
Materials it is required to remediate in accordance with the terms of this Agreement. With
respect to the Agency Parcels, the Agency shall complete the Agency Site Obligations within
sixty (60) days for Phase R-1 and within ninety (90) days for Phase R-2 and Phase FS of the
earlier to occur of (x) expiration of the thirty (30) day period following the Date of Agreement
within which a CEQA Challenge may be initiated or (y) resolution of any CEQA Challenge.
With respect to the Additional Properties, the Agency shall, within one hundred fifty (150) days
of acquisition of each of such Additional Properties, cause each of the Agency Site Obligations
to occur.
300. DEVELOPMENT OF THE PROTECT.
301. Developer's Obligation to Construct Developer Improvements; Scope of
Development. The Developer shall construct each Phase of the Developer Improvements
substantially in accordance with the Land Use Approvals, the Scope of Development and the
plans, drawings and documents submitted by the Developer and approved by the Agency as set
forth herein.
302. Design Review.
302.1 Conceptual Site Plan. Concurrently with approval of this Agreement, the
Developer has submitted and the Agency has approved conceptual drawings for the Developer
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Improvements, specifically showing a site plan, external farrade improvements, and elevations of
all four sides of the Developer Improvements (collectively, the "Conceptual Site Plan").
302.2 Revisions. If the Developer desires to propose any revisions to the
Agency approved Conceptual Site Plan, it shall submit such proposed changes to the Agency,
and shall also proceed in accordance with any and all State and local laws and regulations
regarding such revisions. At the sole discretion of the Agency, if any material change in the
basic uses of any Phase of the Site is proposed in the Conceptual Site Plan from the basic uses of
such Phase of the Site as provided for in this Agreement, then this Agreement is subject to
renegotiation of all terns and conditions, including without limitation, the economic terms of
this Agreement with respect to such Phase of the Site. If the Conceptual Site Plan for a Phase, as
modified by the proposed change, generally and substantially conform to the requirements of this
Section 302, the Agency Executive Director shall review the proposed change and notify the
Developer in writing within fifteen (15) days after submission to the Agency as to whether the
proposed change is approved or disapproved. The Agency's Executive Director is authorized,
but not obligated, to approve changes that 1) do not significantly modify the overall cost of the
Development Improvements; 2) do not reduce the quality of materials to be used; and 3) do not
reduce the imaginative and unique qualities of the project design.
302.3 Defects in Plans. The Agency shall not be responsible either to the
Developer or to third parties in any way for any defects in the Conceptual Site Plan, nor for any
structural or other defects in any work done according to the approved Conceptual Site Plan, nor
for any delays reasonably caused by the review and approval processes established by this
Section 302. The Developer shall hold harmless, indemnify and defend the Agency, the City and
their respective officers, employees, agents and representatives from and against any claims,
suits for damage to property or injuries to persons arising out of or in any way relating to defects
in the Conceptual Site Plan, including without limitation, the violation of any laws, and for
defects in any work done according to the approved Conceptual Site Plan.
302.4 Use of Architectural Plans. In the event this Agreement is terminated
pursuant to Section 303.1 below, the Agency shall become the owner and have the right to use
any Conceptual Site Plan and/or architectural plans which are submitted to the Agency by the
Developer pursuant to this Section 302. To this end, concurrently with receipt by Developer of
the reimbursement contemplated by Section 303.1, the Developer shall execute and cause the
Developer Parties to execute such documentation as may be reasonably required by Agency to
confirm and evidence such ownership.
302.5 Agency Executive Director Approval. Whenever Agency approval is
required under this Section 302, such approval may be by the Agency Executive Director or his
or her designee.
303. Land Use Approvals. Before commencement of construction of any Phase of
the Developer Improvements or other works of improvement pursuant to this Agreement, the
Developer shall, at its own expense, use its commercially reasonable efforts to secure or cause to
be secured any and all land use and other entitlements, permits and approvals which may be
required for such Phase of the Developer Improvements by the City or any other governmental
agency affected by such construction or work ("Land Use Approvals"). The Agency will, upon
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request, provide reasonable assistance to the Developer in the Developer's pursuit of such
entitlements, permits and approvals. If the Developer is unable to obtain any Land Use
Approvals for a Phase of the Developer Improvements, the Developer may terminate its rights
obligations under this Agreement with respect to such Phase. The Developer shall, without
limitation, apply for and secure all permits and pay for all fees required by the City, County of
Orange, and other governmental agencies with jurisdiction over the Site or the development
thereof.
Developer acknowledges and agrees that the execution of this Agreement does
not constitute the granting of or a commitment to grant any required land use permits,
entitlements or approvals by the Agency or the City.
303.1 California Environmental Quality Act. The Agency and the Developer
acknowledge and agree that the Agency is solely responsible for undertaking to completion, at its
sole cost and expense, any environmental studies and documents required pursuant to the
California Environmental Quality Act ("CEQA"). Subject to a determination by the parties as to
whether or not to proceed with compliance with CEQA, or terminate further efforts regarding the
"Project" identified in such CEQA compliance, Agency shall duly file (and/or shall cause City to
duly file) a Notice of Determination and/or Notice of Exemption pursuant to the requirements of
CEQA within five days after the date of Agency and City approval of this Agreement. The
Agency hereby agrees that, if any challenge to completion of the requirements of CEQA delays
or prohibits Developer from initially applying for financing for Phase R-1 or R-2 of the Project
(including, without limitation, a reservation of Tax Credits) beyond February 1, 2012, or delays
prohibits Developer from commencing development of Phase FS beyond February 1, 2012, then
the Developer shall be entitled to terminate this Agreement as to those Phases for which
financing applications or development is prevented or delayed as set forth herein and, upon any
such termination, the Agency shall reimburse Developer for its Third Party Costs within sixty
(60) days of submission of documentation to the Agency supporting such Third Party Costs.
303.2 Lot Merger. On or prior to December 31, 2010 with respect to Phase R-1
and on or prior to the date on which Developer applies for Tax Credits with respect to Phase R-2,
the Agency shall cause a lot merger pursuant to Santa Ana Municipal Code Sections 34-366
through 34-377 or other Subdivision Map Act compliance so as to combine all of the applicable
parcels of the applicable Phase into a single parcel.
304. Time for Commencement and Completion of Construction. The Developer
shall commence construction pursuant to validly issued building permits with respect to the
Rental Portion of the Project on or before thirty (30) days after the Closing for the applicable
Phase and shall complete construction of the Developer Improvements for the applicable Phase
of the Rental Portion of the Project on or before twenty four (24) months following
commencement. For Phase FS, grading on all Portions or Phases of Phase FS will commence
within 30 days of the Conveyance of the first Portion or Phase of Phase FS. Construction of the
Developer Improvements pursuant to validly issued building permits will commence within
ninety (90) days of Conveyance of the first Portion or Phase of Phase FS, and within 30 days
after Conveyance of subsequent Portions or Phases of Phase FS. Completion of all construction
shall occur on or before twenty-four (24) months after commencement of construction on the
first Portion or Phase of Phase FS..
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305. Development Obligations.
305.1 Cost of Construction. All of the costs of the planning, design,
development and construction of the Developer Improvements shall be borne solely by the
Developer.
305.2 Public Art Fee. Developer will provide public art on Site or in the nearby
vicinity at cost of not less than one-half percent (.5%) of the building permit valuation for
Phases R-I and R-2 ("Public Art Amount"). The Agency and community representatives
identified by the Agency will identify the locations and the local artistic resources available to
provide such public art. If and to the extent less than the Public Art Amount is expended, this
difference will be paid to the Agency as a fee.
305.3 Provision of Child Care Facilities. Upon issuance of a final certificate
of occupancy for the proposed approximately 3000 square foot community center to be located
within Phase R-1, Developer will cause up to 1000 square feet on unimproved space within such
community center to be available at no cost for a child care facility at the Site (the "Child Care
Facility"); provided, however, if a suitable day care provider is not identified within six (6)
months of issuance of a final certificate of occupancy for the Child Care Facility, Developer's
obligations under this Section 305.3 shall terminate. The Developer shall coordinate with the
Agency and community representatives designated by the Agency to identify a qualified day care
provider. Developer makes no representation or warranty that such space is fit for any purpose,
including, without limitation, the Child Care Facility. The Child Care Facility will be operated
by a child care provider approved by Developer in its sole and absolute discretion pursuant to a
lease which will also be subject to Developer's approval in it is sole and absolute discretion.
Developer shall have no liability or obligation with respect to the identification of a child care
provider or for the services provided at the Child Care Facility.
305.4 Retail Space. The Developer will construct and offer commercial
retail space of approximately fifteen hundred (1500) square feet of gross leasable area within
Phase R-1 to a tenant reasonably acceptable to Developer for rent at less than market value so as
to provide an opportunity, first to residents of the Station District and second to residents of the
City, to provide neighborhood serving retail at affordable rents.
The Agency and community representatives designated by the Agency will assist in
coordinating Developer's efforts in this regard. In the event that the parties are unable to locate
such tenant within ninety (90) days from the issuance of a temporary certificate of occupancy for
such retail space, then Developer is no longer obligated under this Section 305.4.
306. Insurance Requirements. The Developer shall secure from a company or
companies licensed to conduct insurance business in the State of California, pay for, and
maintain in full force and effect from and after the Closing for each Phase, and continuing for the
duration of Affordability Period (except as provided in Section 306.3 hereof), insurance as
required herein for such Phase, issued by an "A: VI" or better rated insurance carrier as rated by
A.M. Best Company. The Developer shall furnish certificates of insurance and endorsements to
the Agency prior to the applicable Closing and shall furnish complete copies of such policy or
policies upon request by the Agency.
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306.1 Minimum Coverage/Endorsements. Notwithstanding any inconsistent
statement in the policy or any subsequent endorsement attached hereto, the protection afforded
by these policies shall be written on an occurrence basis in which the Agency, City, and their
respective elected and appointed officials, officers, employees, agents and representatives
(together, "Additional Insureds") are named as additional insureds on all coverage, except for
workers' compensation coverage, and shall:
(a) Name Additional Insureds (from above) as additional insureds on a
Commercial General Liability ("CGL") policy;
(b) Include an endorsement to the CGL policy naming the Additional
Insureds as additional insureds, and said endorsement shall be delivered to the Agency
Executive Director prior to and as an Agency's Condition Precedent (and maintained as required
herein);
(c) Provide a combined single limit of broad form commercial general
liability insurance in the amount of Two Million Dollars ($2,000,000) per occurrence, which will
be considered equivalent to the required minimum limits, and such insurance shall (i) be written
on an occurrence form, (ii) be written with a primary policy form with limits of not less than
$1,000,000 per occurrence; (iii) be written with one or more excess layers to bring the total of
primary and excess coverage limits to not less than $2,000,000 per occurrence, (iv) not be
written with a deductible greater than $25,000 per occurrence, (v) contain a waiver of
subrogation in favor of the Agency;
(d) Provide primary automobile liability insurance for owned,
non-owned, and hired vehicles, as applicable to, or for any use related to, the Project, in an
amount not less than One Million Dollars ($1,000,000) combined single limit, with excess
insurance coverage to bring the total amount of automobile liability insurance coverage to an
amount not less than Two Million Dollars ($2,000,000) per accident for bodily injury and
property damage;
(e) Bear an endorsement or shall have attached a rider providing that
Agency shall be notified not less than thirty (30) days before any expiration, cancellation, or
non-renewal of such policy or policies, and shall be notified not less than ten (10) days after any
event of nonpayment of premium; and
(f) Developer shall also file with Agency the following signed
certification:
1 am aware of, and will comply with, Section 3700 of the
Labor Code, requiring every employer to be insured against
liability of Workers' Compensation or to undertake self-insurance
before commencing any of the work."
Developer shall comply with Sections 3700 and 3800 of the Labor Code by
securing, paying for and maintaining in full force and effect from and after the Closing, and
continuing for the duration of the Affordability Period, complete workers' compensation
insurance, to statutory limits, with employers liability limits not less than One Million Dollars
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($1,000,000) per occurrence, and shall furnish a Certificate of Insurance to the Agency before
the commencement of construction. All Additional Insureds shall not be responsible for any
claims in law or equity occasioned by the failure of the Developer to comply with this
Section 306.1. Every workers' compensation insurance policy shall bear an endorsement or shall
have attached a rider providing that, in the event of expiration or proposed cancellation of such
policy for any reason whatsoever, the Agency shall be notified, giving the Developer a sufficient
time to comply with applicable law, but in no event less than thirty (30) days before such
expiration, cancellation, or reduction in coverage is effective or ten (10) days in the event of
nonpayment of premium.
(g) Should any of the insurance coverage required here be written with
an annual aggregate such aggregate shall be disclosed in writing to the Agency.
(h) For all insurance required under this Section 306.1, the Agency
shall have the right, at every five (S) year period, to review the types and limits of insurance
coverage required herein and to make reasonable adjustments, provided that such types and
limits shall not exceed that typically carried by the owner and operator of a comparable
affordable housing apartment complex, of approximately the same size, in Orange County,
California, based on reasonable research and investigation by the Agency.
306.2 Property Insurance. Commencing upon the Closing for each Phase and
continuing for the duration of the Affordability Period with respect to such Phase, Developer
shall secure, maintain, and pay for the following all-risk Property Insurance; provided, however,
in the case of Builder's Risk insurance where Developer is not the general contractor, Developer
may cause the required builder's risk insurance to be secured, maintained, and paid for by the
general contractor:
(a) Prior to the start of construction and continuing until the
completion of construction (the latter of final acceptance of the Project or issuance of the final
certificate of occupancy for the Project): all-risk Builder's Risk (course of construction)
insurance coverage in an amount equal to the full cost of the hard construction costs of the
Project. Such insurance shall cover, at a minimum: all work, materials, and equipment to be
incorporated into the Project; the Project during construction; the completed Project until such
time as it is accepted by the Agency; and storage and transportation risks. Such insurance shall
protect/insure the interests of the Developer/owner and all contractor(s), and all subcontractors,
as each of their interests may appear. If such insurance includes an exclusion for "design error,"
such exclusion shall only be for the object or portion which failed. Such insurance shall include
an insurer's waiver of subrogation in favor of each protected/insured party thereunder and the
Agency. The Agency shall be named as an additional loss payee, as its interests may appear,
with a loss payable endorsement, which shall be delivered to the Agency prior to the start of
construction.
(b) Commencing with the completion of construction and continuing
for the duration of the Affordability Period: (a) all-risk physical damage insurance coverage, on
an all-risk basis, covering all insurable structures and equipment, including coverage for building
code changes, in an amount not less than 100% of the replacement cost of the total values at risk,
which shall be adjusted for increased costs of construction and replacement on an annual basis,
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to protect against loss of, damage to, or destruction of the Project; such insurance shall not
contain a coinsurance clause; (b) business interruption and extra expense insurance to protect the
Developer and all Additional Insureds covering loss of revenues and/or extra expense incurred
by reason of the total or partial suspension or delay of, or interruption in, the operation of the
Project, or any portion thereof, caused by loss or damage to or destruction of any part of the
insurable real property structures or equipment as a result of the perils insured against under such
all-risk property insurance, covering a period of suspension, delay or interruption of at least
twelve (12) calendar months, in an amount not less than the amount required to cover such
business interruption and/or extra expense loss during any such period; such insurance shall not
contain a deductible in an amount in excess of a thirty (30) day period; and (c) as applicable,
boiler and machinery insurance in the aggregate amount of the full replacement value of the
equipment typically covered by such insurance; such insurance shall be extended to include
business interruption/extra expense coverage, as described above, provided, however, that the
limits of coverage shall be not less than ninety (90) days instead of twelve (12) months. On the
coverage required under this subparagraph 306.2(b), all Additional Insureds shall be named as an
additional loss payee, as their interests may appear, with a lenders loss payable endorsement
whenever possible, and if not attainable for Additional Insureds other than Agency, then a loss
payable endorsement may be utilized, which shall be delivered to the Agency at the completion
of construction and prior to the expiration of the builder's risk coverage required herein.
(c) For all insurance required under this Section 306.2, said polices
shall provide, by endorsement, that they will not be cancelled or non-renewed without at least
thirty (30) days prior written notice to the Agency, except in the event of non-payment of
premium which shall provide for at least ten (10) days prior written notice to the Agency.
306.3 Applicability to For-Sale Portion of the Project. The insurance
provisions and requirements as set forth in this Section 306 shall apply to both the Rental Portion
of the Project and the For-Sale Portion of the Project; provided, however, that notwithstanding
any provision or requirement of this Section 306, the Developer shall have no obligation to
maintain any form of insurance with respect to any Housing Unit (including any Affordable For-
Sale Unit) located within the For-Sale Portion of the Project upon the sale of such Housing Unit
to a third-party buyer. Upon the sale of the last Housing Unit located within the For-Sale Portion
of the Project, the Developer shall have no further obligation to maintain any insurance with
respect to the For-Sale Portion of the Development that would otherwise be required pursuant to
this Section 306.
307. Indemnity
307.1 Developer Indemnity. Developer shall indemnify, defend and hold
harmless Agency and City, their respective officers, agents, employees and volunteers from and
against any and all loss or damage, expenses, injuries, death to any person, damage to real or
personal property, claim, demand, suit, action, judgment, settlement, reasonable attorney's fees,
costs, or proceeding of any kind arising out of Developer's actions and obligations pursuant to
this Agreement, Developer's implementation of this Agreement, Developer's securing of
financing, design development drawings, the engineering, construction, reconstruction, structural
integrity of the Project, maintenance of Project, operation and subsequent sale of the Project,
including but not limited to:
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(a) latent material defects in construction of the Project;
(b) any construction defect in the Project;
(c) personal injury, including death, of the employees, agents, officers,
and/or volunteers of Developer, Developer Parties, and/or any subcontractors, independent
contractors, partners, and/or subsidiaries or third parties in connection with the Project;
(d) property damage claims of the employees, agents, officers, and/or
volunteers of Developer, Developer Parties, and/or any subcontractors, independent contractors,
partners, and/or subsidiaries or third parties in connection with the Project;
(e) delay in construction of the Project beyond the dates set forth
herein and the Schedule of Performance and subject to force majeure; and
(f) the failure to make required real estate disclosures to subsequent
buyers of homes on Phase FS.
Developer's obligation to indemnify as set forth in this Agreement shall extend to
loss or damage, expenses, injuries, death to any person, damage to real or personal property,
claim, demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or
proceedings of any kind that are discovered or accrue, either before or after the termination of
this Agreement.
Notwithstanding the foregoing, Developer shall not be required to indemnify and
hold harmless Agency or the City for liability attributable to the active negligence of, intentional
misconduct by, or breach of this Agreement by Agency or the City or any of their boards,
officers, employees, representatives or agents.
307.2 Agency Indemnity. Agency shall indemnify, defend and hold harmless
Developer and its officers, agents, and employees from and against any and all loss or damage,
expenses, injuries, death to any person, damage to real or personal property, claim, demand, suit,
action, judgment, settlement, reasonable attorney's fees, costs, or proceeding of any kind arising
out of Agency's and City's actions or omissions pursuant to this Agreement, Agency's
performance of its obligations under this Agreement, and the negligence of, intentional
misconduct by, or breach of this Agreement by Agency or the City or any of their boards,
officers, employees, representatives or agents, including but not limited to:
(a) Agency's relocation of the residents and occupants of the Site.
(b) The entry upon the Site after Closing by Agency or City or their
respective officers, agents, employees and volunteers.
(c) Agency's acquisition and management of the Site prior to the
Closing for the applicable Phase of the Site.
Agency's obligation to indemnify as set forth in this Agreement shall extend to
loss or damage, expenses, injuries, death to any person, damage to real or personal property,
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claim, demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or
proceedings of any kind that are discovered or accrue, either before or after the termination of
this Agreement.
Notwithstanding the foregoing, Agency shall not be required to indemnify and
hold harmless Developer for liability attributable to the active negligence of, intentional
misconduct by, or breach of this Agreement by Developer or its officers, employees,
representatives or agents; nor shall the Agency indemnify and hold Developer harmless with
respect to any action challenging the validity of this Agreement or any other actions of Agency
in connection with approval of this Agreement, including without limitation, CEQA Challenges.
308. Rights of Access. Prior to the issuance of a Release of Construction Covenants
with respect to each Phase (as specified in Section 313 of this Agreement), for purposes of
assuring compliance with this Agreement, representatives of the Agency shall have the right of
reasonable access to any Phase of the Site that has not yet received a Release of Construction
Covenants, without charges or fees, at normal construction hours during the period of
construction for the purposes of this Agreement, including but not limited to, the inspection of
the work being performed in constructing the Developer Improvements so long as the Agency
representatives comply with all safety rules. In exercising such entry right, the Agency shall not
interfere with or disrupt the Developer's construction activities. The Agency (or its
representatives) shall, except in emergency situations, notify the Developer prior to exercising its
rights pursuant to this Section 308, with a minimum 24 hours notice. In such event, the Agency
shall defend, indemnify and hold the Developer, its members, partners, employees, and officers,
harmless with respect to any claim, demands, damages, defense costs, liability or expense
(including, without limitation, reasonable attorneys' fees and court costs) of any kind or nature
relating to the Agency's exercise of its right of access pursuant to this Section 308.
309. Nondiscrimination in Employment. Developer certifies and agrees that all
persons employed or applying for employment by it, its affiliates, subsidiaries, or holding
companies, and all subcontractors, bidders and vendors, are and will be treated equally by it
without regard to, or because of race, color, religion, ancestry, national origin, sex, sexual
orientation, age, pregnancy, childbirth or related medical condition, medical condition (cancer
related) or physical or mental disability, and in compliance with Title VII of the Civil Rights Act
of 1964, 42 U.S.C. Section 2000, et seq-, the Federal Equal Pay Act of 1963, 29 U.S.C.
Section 206(d), the Age Discrimination in Employment Act of 1967, 29 U.S.C. Section 621,
et seq., the Immigration Reform and Control Act of 1986, 8 U.S.C. Section 1324b, et seq., 42
U.S.C. Section 1981, the California Fair Employment and Housing Act, Cal. Government Code
Section 12900, etseq., the California Equal Pay Law, Cal. Labor Code Section 1197.5, Cal.
Government Code Section 11135, the Americans with Disabilities Act, 42 U.S.C. Section 12101,
et seq., and all other anti-discrimination laws and regulations of the United States and the State
of California as they now exist or may hereafter be amended. The Developer shall allow
representatives of the Agency access to its employment records related to this Agreement during
regular business hours to verify compliance with these provisions when so requested by the
Agency.
310. Taxes and Assessments. Except to the extent exempt therefrom, the Developer
shall pay prior to delinquency all ad valorem real estate taxes and assessments on each Phase of
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the Site attributable to periods subsequent to Closing for such Phase, subject to the Developer's
right to contest in good faith any such taxes. Following the Closing for any Phase, the Developer
shall remove or have removed any levy or attachment made on any Phase of the Site or any part
thereof, or assure the satisfaction thereof within a reasonable time. The Developer may apply for
property tax abatement from the payment of all property taxes or assessments during the period
of its ownership on any interest in or to the Site or any part thereof.
311. Compliance with Laws. The Developer shall carry out the design, construction,
development and operation of the Developer Improvements in conformity with all applicable
laws, including all applicable state labor standards, City zoning and development standards,
building, plumbing, mechanical and electrical codes, and all other provisions of the City's
Municipal Code, and all applicable disabled and handicapped access requirements, including
without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq.,
Government Code Section 445Q et seq., Government Code Section 11135, et seq., and the
Unruh Civil Rights Act, Civil Code Section 51, et seq., and any other applicable
Governmental Requirements.
311.1 Prevailing Wage Laws. Developer shall carry out the construction
through completion of the Project and the overall development of the Site in conformity with all
applicable federal, state and local labor laws and regulations, including, without limitation, if
applicable, the requirements to pay prevailing wages under federal law (the Davis-Bacon Act,
40 U.S.C. Section 3141, et seq., and the regulations promulgated thereunder set forth at 29 CFR
Part 1 (collectively, "Davis-Bacon")) and California law (Labor Code Section 1720, et seq.).
Notwithstanding the foregoing, (a) the Agency hereby acknowledges and agrees that nothing in
this Agreement (or any of the documents entered into by the Agency and the Developer in
connection with the transactions contemplated by this Agreement) is intended to impose on the
Developer, contractually or otherwise, the obligation to pay prevailing wages under federal, state
or local law, and (b) the Agency hereby represents and warrants to the Developer, its successors
and assigns, that all funds used by the Agency in connection with this Agreement and the
transactions contemplated hereby, including, without limitation, funds used and to be used by the
Agency to acquire each and every component of the Site, funds used and to be used to pay for
relocation and demolition of existing improvements on the Site, funds used and to be used to
fund the Agency Loans and funds used and to be used to fund Homebuyer Assistance Loans,
solely constitute moneys from a Low and Moderate Income Housing Fund established pursuant
to Section 33334.3 of the California Health and Safety Code, all within the meaning of
Section 1720(c)(4) of the California Labor Code, The Agency understands and agrees that the
Developer will materially rely on the foregoing warranties in its determination as to whether
prevailing wages are required pursuant to California law or Davis-Bacon. The parties
acknowledge that a financing structure utilizing certain federal and/or state funding sources and
financing scenarios not otherwise identified herein may trigger compliance with applicable state
and federal prevailing wage laws and regulations. The applicability of federal, state and local
prevailing wage laws will be determined based upon the final financing structure and sources of
funding of the Project, as approved by the Agency Executive Director.
The Developer shall be solely responsible, expressly or impliedly and legally and
financially, for determining and effectuating compliance with all applicable federal, state and
local public works requirements, prevailing wage laws, labor laws and standards, and, except as
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provided above, neither the Agency nor City makes any representation, either legally and/or
financially, as to the applicability or non-applicability of any federal, state and local laws to the
Project, either onsite or offsite. The Developer expressly, knowingly and voluntarily
acknowledges and agrees that neither the Agency nor City have previously represented to the
Developer or to any representative, agent or Affiliate of Developer, or any contractor(s) or any
subcontractor(s) for the construction or development of the Project, in writing or otherwise, in a
call for bids or otherwise, that the work and construction undertaken pursuant to this Agreement
is (or is not) a "public work," as defined in Section 1720 of the Labor Code or under
Davis-Bacon.
The Developer knowingly and voluntarily agrees that the Developer shall have
the obligation to provide any and all disclosures or identifications as required by Labor Code
Section 1781 and/or by Davis Bacon, as the same may be amended from time to time, or any
other similar law or regulation. If and only if the representation and warranty provided by the
Agency to the Developer in this Section 311.1 remains true, correct and complete in every
respect, the Developer shall Indemnify, protect, pay for, defend and hold harmless the Agency,
the City and their respective officers, employees, agents and representatives from and against
any and all loss, liability, damage, claim, cost, expense and/or "increased costs" (including
reasonable attorneys fees, court and litigation costs, and fees of expert witnesses) which, in
connection with the development, construction (as defined by applicable law) and/or operation of
the Project, including, without limitation, any and all public works (as defined by applicable
law), results or arises in any way from any of the following: (i) the noncompliance by the
Developer with any applicable local, state and/or federal law or regulation, including, without
limitation, any applicable federal and/or state labor laws or regulations (including, without
limitation, if applicable, the requirement to pay state and/or federal prevailing wages); (ii) the
implementation of Section 1781 of the Labor Code and/or of Davis Bacon, as the same may be
amended from time to time, or any other similar law or regulation; and/or (iii) failure by the
Developer to provide any required disclosure or identification as required by Labor Code
Section 1781 and/or by Davis Bacon, as the same may be amended from time to time, or any
other similar law or regulation. If and only if the representation and warranty provided by the
Agency to the Developer in this Section 311.1 remains true, correct and complete in every
respect, it is agreed by the parties that, in connection with the development and construction (as
defined by applicable law or regulation) of the Project, including, without limitation, any and all
public works (as defined by applicable law or regulation), the Developer shall bear all risks of
payment or non-payment of prevailing wages under applicable federal, state and local law or
regulation and/or the implementation of Labor Code Section 1781 and/or by Davis Bacon, as the
same may be amended from time to time, and/or any other similar law or regulation. "Increased
costs," as used in this Section 311.1, shall have the meaning ascribed to it in Labor Code
Section 1781, as the same may be amended from time to time. The foregoing indemnity shall
survive termination of this Agreement and shall continue after completion of the construction
and development of the Project by the Developer.
312. Liens and Stop Notices. From and after the Closing for a particular Phase and
during the construction of such Phase, the Developer shall use all reasonable efforts to not allow
to be placed on such Phase or any part thereof any lien or stop notice. If a claim of a lien or stop
notice is given or recorded affecting any Phase of the Developer Improvements or any Phase of
the Site or any portion thereof by reason of Developer's predevelopment, development and/or
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construction activity, the Developer shall within thirty (30) days of such recording or service or
within five (5) days of the Agency's demand whichever last occurs:
(a) pay and discharge the same; or
(b) affect the release thereof by recording and delivering to the Agency a
surety bond in sufficient form and amount, or otherwise; or
(c) provide the Agency with other assurance which the Agency deems, in its
reasonable discretion, to be satisfactory for the payment of such lien or bonded stop notice and
for the full and continuous protection of Agency from the effect of such lien or bonded stop
notice.
313. Release of Construction Covenants. Promptly after completion of any Phase of
the Developer Improvements in conformity with this Agreement, the Agency shall furnish the
Developer with a "Release of Construction Covenants" for such Phase, substantially in the form
of Attachment No. 6 hereto which is incorporated herein by reference. The Agency shall not
unreasonably withhold any such Release of Construction Covenants. The Release of
Construction Covenants shall be a conclusive determination of satisfactory completion of the
applicable Phase of the Developer Improvements and the Release of Construction Covenants
shall so state. Any party then owning or thereafter purchasing, leasing or otherwise acquiring
any interest in such Phase of the Site shall not (because of such ownership, purchase, lease or
acquisition) incur any obligation or liability under this Agreement except for those continuing
covenants as set forth in Section 400 of this Agreement as they relate to such Phase.
If the Agency refuses or fails to furnish a Release of Construction Covenants,
after written request from the Developer, the Agency shall, within thirty (30) days of written
request therefor, provide the Developer with a written statement of the reasons the Agency
refused or failed to furnish such Release of Construction Covenants. The statement shall also
contain the Agency's opinion of the actions the Developer must take to obtain such Release of
Construction Covenants. If the Agency shall have failed to provide such written statement
within such thirty (30) day period, the Developer shall renew its request and if the Agency fails
to furnish either such Release of Construction Covenants or a written statement of reasons that
such Release of Construction Covenants will not be provided within an additional period of ten
(10) days after renewal of the request by Developer, the Developer's construction covenants
shall conclusively be deemed satisfied with respect to such Phase as if the Agency had issued the
Release of Construction Covenants. A Release of Construction Covenants shall not constitute
evidence of compliance with or satisfaction of any obligation of the Developer to any holder of
any mortgage, or any insurer of a mortgage securing money loaned to finance the Developer
Improvements, or any part thereof. The Release of Construction Covenants is not a notice of
completion as referred to in Section 3093 of the California Civil Code.
314. Agency Financial Assistance.
314.1 Agency Loans. Based on the Budget, Agency hereby agrees to loan to the
Developer, subject to the terms and conditions set forth within this Agreement and the
documents and instruments executed by the Developer in connection with this transaction, the
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amount of Ten Million, Eight Hundred Thousand Dollars ($10,800,000) for Phase R-1 (the
"Phase R-1 Agency Loan") and Four Million, Seven Hundred Seventy Thousand Dollars
($4,770, 000) for Phase R-2 (the "Phase R-2 Agency Loan") and One Million, Five Hundred
Thousand Dollars ($1,500,000) for Phase FS (the "Phase FS Agency Loan"). The Phase R-1
Agency Loan, the Phase R-2 Agency Loan, and the Phase FS Agency Loan shall be adjusted
upward and/or downward if and to the extent the Total Development Costs set forth in the
Revised Budget varies from the Total Development Cost set forth in the Budget. The Phase R-1
Loan, Phase R-2 Loan and the Phase FS Agency Loan are sometimes collectively referred to
herein as the "Agency Loans."
314.2 Repayment of the Agency Loans. The Phase R-1 Agency Loan, the
Phase R-2 Agency Loan and the FS Agency Loan shall each be evidenced by a separate
Promissory Note, and the Developer's obligation to repay each such Agency Loan shall be set
forth in such Promissory Notes (the "Phase R-1 Promissory Note," "Phase R-2 Promissory Note"
and the Phase FS Promissory Note or, collectively the "Promissory Notes"). The Agency Loans
shall be funded solely from moneys from a Low and Moderate Income Housing Fund established
pursuant to Section 33334.3 of the California Health and Safety Code, all within the meaning of
Section 1720(c)(4) of the California Labor Code. Capitalized terms in this Section 314.2 not
defined herein are defined in the Promissory Note.
(a) Phase R-1 Promissory Note and Phase R•2 Promissory Note
Payable From Residual Receipts. The Phase R-1 Promissory Note and Phase R-2 Promissory
Note shall be payable from fifty percent (50%) of the "Residual Receipts" of the Phase of the
Rental Portion of the Project to which such Promissory Note relates, after payment of
(i) Operating Expenses, and (ii) Debt Service allocable to such Phase of the Rental Portion, until
such Promissory Note has been paid in full; provided, however, that if such calculation results in
a negative number for any given year, Residual Receipts shall be zero for that year. In the event
that the Developer obtains other approved financing that also requires payment from Residual
Receipts, the Residual Receipts shall be allocated to repayment of both (or all) loans in an
amount proportionate to the relative amount of such loans, so that each soft loan receives a
proportional share of a total of no more than fifty percent (50%) of the Residual Receipts for
such Phase of the Rental Portion of the Project in each year.
(b) Phase FS Promissory Note. The Phase FS Promissory Note is
payable after close of escrow of all of the For-Sale Units from twenty-five percent (25%) of the
net proceeds of such sales after Developer has received a return of twelve percent (12%) on
costs, as more particularly set forth in the Phase FS Promissory Note. In the event that such
amount is not sufficient to pay the full amount of the Phase FS Promissory Note, the remaining
balance of the Phase FS Promissory Note shall be reduced to zero upon the Developer's payment
of the foregoing amount to the Agency.
314.3 Reporting Requirements for the Rental Portion of the Project. With
respect to each Phase of the Rental Portion, the Developer shall annually, on or before April 30th
of each year, commencing in the year after the issuance of the first certificate of occupancy for
such Phase, submit to the Agency an audited financial statement and a Residual Receipts Report,
in the form attached hereto as Attachment No. 10 and incorporated herein, which shall provide
the basis for the Developer's payment of Residual Receipts to the Agency with respect to such
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Phase. The Agency Executive Director may waive the requirements of this Section 314.3 in the
event the Developer timely submits to the Agency a report prepared for any other federal, state
or local government agency that contains the information required by Attachment No. 10. The
Residual Receipts Report, or the report accepted by the Executive Director in lieu of the Residual
Receipts Report, must be prepared or audited by an entity independent of the Developer in order
to satisfy the requirements of this Section 314.3.
314.4 Reporting Requirements for the For-Sale Portion of the Project.
Within one hundred twenty (120) days after the close of escrow of the sale of the last For-Sale
Unit the Developer shall submit to the Agency a financial statement setting forth the Profit
Sharing Amount, and the Net Profit, Gross Sales Proceeds, For-Sale Units Development Cost,
and For Sale Units Development Profit upon which the Profit Sharing Amount has been
calculated (as those terms are defined in the Phase FS Promissory Note.
314.5 Security of Agency Loan. Each Promissory Note shall be secured by a
deed of trust to be recorded as an encumbrance against the applicable Phase to which such
Promissory Note relates, which deed of trust shall be substantially in the form attached hereto as
Attachment No. 9 attached hereto, which is incorporated herein (the "Agency Deed of Trust").
The Agency acknowledges that it will be necessary to subordinate each Agency Deed of Trust to
deeds of trust securing other sources of financing obtained by the Developer. The Agency
Executive Director is authorized to execute any and all documents necessary in order to
subordinate each Agency Deed of Trust, but only if and to the extent such subordination is
reasonably necessary.
314.6 Disbursement of the Agency Loan. The proceeds of each Agency Loan
shall be disbursed for hard and soft costs of construction for the applicable Phase to which such
Agency Loan relates, and shall be disbursed to Developer's institutional construction lender for
such Phase pro rata with the proceeds of the construction loan (subject to the approval of such
institutional construction lender) at such time as Agency and such institutional construction
lender approves such disbursement upon completion of a line item under the Budget.
315. Homebuyer Assistance.
315.1 Homebuyer Assistance Loan. The Agency hereby agrees to loan to each
qualified Moderate Income Homebuyer of an Affordable For-Sale Unit the amount of Thirty
Thousand Dollars ($30,000) (each, a "Homebuyer Assistance Loan"), subject to the terms and
conditions set forth in this Agreement, and subject further to the terms and conditions set forth
within the documents and instruments executed by each Homebuyer, including the Homebuyer
Loan Agreement, all in compliance with applicable laws and regulations. The Agency shall fund
each Homebuyer Assistance Loan solely from moneys from a Low and Moderate Income
Housing Fund established pursuant to Section 33334.3 of the California Health and Safety Code,
all within the meaning of Section 1720(c)(4) of the California Labor Code.
315.2 Repayment of Homebuyer Assistance Loan. Each Homebuyer's
obligation to repay the Homebuyer Assistance Loan shall be set forth in a promissory note
substantially in the form attached to the Homebuyer Loan Agreement. The Homebuyer
Assistance Loan shall not accrue interest until and unless an event of acceleration occurs under
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the terms of the Homebuyer Loan Agreement, in which case an interest rate or equity share
amount shall apply as provided in the Homebuyer Loan Agreement.
315.3 Security for Homebuyer Assistance Loan. Each promissory note
evidencing a Homebuyer Assistance Loan shall be secured by a deed of trust to be recorded as an
encumbrance to the applicable Affordable For-Sale Unit, substantially in the form attached to the
Homebuyer Loan Agreement. The priority of such encumbrance shall be junior and subordinate
only to the approved first lien as further provided in Section 315.5.
315.4 Disbursement of Homebuyer Assistance Loan; Conditions Precedent
Thereto; Developer's Marketing, Disclosure and Housing Counseling. In connection with
the first sale of each Affordable For-Sale Unit, the full amount of the proceeds of each
Homebuyer Assistance Loan shall be disbursed by the Agency into the escrow established by the
Developer and the Homebuyer for such initial sale and conveyance of each applicable
For-Sale Unit to the Homebuyer. Disbursement shall occur on demand of the escrow officer, but
the Agency shall be provided not less than ten (10) days notice of the estimated closing date, and
all conditions precedent to the Agency's obligation to disburse such monies shall have been
satisfied by Developer (and the applicable Homebuyer) prior to escrow officer's demand. The
proceeds shall only be expended and paid to fund a portion of the applicable Homebuyer's costs
of acquisition of the Affordable For-Sale Unit in order to make such unit available at an
Affordable Housing Cost.
(a) The Agency's obligation to disburse proceeds of the Homebuyer
Assistance Loan is expressly conditioned upon and will occur as soon as practicable after each
Homebuyer's execution and delivery of the Homebuyer Loan Agreement (including any other
documents required thereunder) and in conformity with applicable laws and regulations and all
submittals provided thereunder, and such disbursement shall occur concurrently with the
recordation of all documents required to be recorded at closing pursuant to the Homebuyer Loan
Agreement and attachments thereto, and close of escrow for disposition of such Affordable For-
Sale Unit pursuant to the terms hereof.
(b) Developer shall be responsible at its sole cost and expense for
marketing, housing counseling, disclosures, and sale for and related directly or indirectly to each
and all Affordable For-Sale Units to each and all prospective Homebuyers.
(i) In connection therewith, Developer shall in any marketing
effort relative to the Affordable For-Sale Units fully disclose its obligation to provide the
Affordable For-Sale Units and each prospective Homebuyer shall be provided a true and
complete copy of the form of the Homebuyer Loan Agreement, and all attachments thereto.
(ii) Developer shall cause to be provided to each prospective
Homebuyer one-on-one housing counseling concerning such prospective Homebuyer's potential
purchase of an Affordable For-Sale Unit, in particular the provisions relating to the Ion-term
affordability covenants and restrictions on resale applicable to such Affordable For-Sale Unit.
The one-on-one counseling shall be videotaped and a copy of the videotape shall be provided to
Agency staff on a DVD within ten (10) days after the counseling session.
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(iii) The form of Developer's purchase and sale agreement,
marketing materials, draft disclosure documents, and scope/personnel/method for housing
counseling to and for prospective Homebuyers of Affordable For-Sale Units shall be provided to
the Agency Executive Director for review and approval prior to the issuance of the first building
permit for the Project.
(iv) In connection with the Developer's marketing efforts and
its obligation to provide housing counseling and appropriate disclosure to prospective
Homebuyers of Affordable For-Sale Units as described in subsection above, the Agency
acknowledges that it will assist the Developer in a limited role in that the Agency staff will be
reasonably available for reasonably limited times to receive and answer questions of prospective
Homebuyers, but only as to those prospective Homebuyers who have been previously screened
and evaluated by the Developer (or its agent) as a Moderate Income Household meeting the
criteria established herein as potentially qualified to purchase an Affordable For-Sale Unit as
well as reviewed preliminarily as to and regarding creditworthiness and eligibility to apply for
and obtain a first lien mortgage to purchase an Affordable For-Sale Unit. Nothing in the
foregoing statement regarding the Agency's limited role in housing counseling shall obligate,
involve, or require Agency (or City) or any of their staff, consultants, or counsel to assist in the
marketing, housing counseling, disclosure, or sale of any For-Sale Units to any prospective or
actual buyer, or selection of such buyer, which is and shall remain the Developer's sole legal,
contractual, and financial responsibility.
(c) The sale of each Affordable For-Sale Unit by the Developer to an
eligible Homebuyer shall be subject to the satisfaction, or waiver by the Agency Executive
Director of the following conditions precedent numbered (i) through (x) inclusive:
(i) Association CC&Rs. Pursuant to the requirements of
Section 402(b) of this Agreement, the Developer shall have (or caused to have) prepared,
approved, executed, formed, and caused to be recorded the Declaration of Covenants, Conditions
and Restrictions for the homeowners association (the "Association") for the For-Sale Portion of
the Project (the "Association CC&Rs") prior to issuance of the first certificate of occupancy
(temporary or permanent) for any Housing Unit (whether or not such Housing Unit is restricted
pursuant to the terms of this Agreement) within the For-Sale Portion of the Project.
(ii) Affordable For-Sale Unit Completed. The applicable
Affordable For-Sale Unit shall have been completed, as evidenced by issuance of the certificate
of occupancy for such Affordable For-Sale Unit.
(iii) Escrow. The Homebuyer's purchase of the Affordable For-
Sale Unit shall be transacted through an escrow with an escrow holder satisfactory to the
Developer and Agency Executive Director. Costs for such escrow shall be charged to and
deducted from the proceeds of the Homebuyer Assistance Loan.
(iv) Escrow Instructions. The Agency Executive Director (or
his or her designee) shall have approved the instructions for the Homebuyer's escrow. It is
anticipated that the Agency Executive Director (or his or her designee) will approve such
instructions within fifteen (15) days after receipt of a complete package of escrow instructions
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and sufficient evidence indicating that the selected Homebuyer satisfies the requirements of this
Agreement.
(v) Homebuyer Loan Agreement. The Agency and the
Homebuyer shall have entered into a Homebuyer Loan Agreement and all related loan
documents and such Homebuyer Loan Agreement and such other documents shall have been
duly executed, attested, notarized and delivered to the escrow holder with appropriate title and
escrow instructions and such Homebuyer Assistance Loan shall be ready to close (subject to the
Agency funding the proceeds of such Homebuyer Assistance Loan into escrow) concurrent with
the Developer's escrow to sell the Affordable For-Sale Unit to the Homebuyer.
(vi) Insurance. The Agency shall have received sufficient
evidence of the issuance of a homeowner's insurance policy with a guaranteed replacement
provision for the Affordable For-Sale Unit and a lender's loss payable endorsement in its favor.
(vii) Affordability and Intone Requirements. The Agency
Executive Director shall be satisfied that the Homebuyer meets the applicable Moderate Income
requirements of the CRL and that the Monthly Housing Cost for the For-Sale Unit is no greater
than an Affordable Housing Cost.
(viii) Representations and Warranties. The representations and
warranties of the Developer contained in this Agreement shall be correct as of the close of each
such escrow as though made on and as of that date, and the Agency Executive Director shall
have received a certificate to that effect signed by the Developer.
(ix) No Default. No Default by the Developer shall have
occurred with respect to Phase FS, and no event shall have occurred with respect to Phase FS
which, with the giving of notice or the passage of time or both, would constitute an Default by
the Developer with respect to Phase FS.
315.5 Subordination. The deed of trust securing the Homebuyer's repayment
of the Homebuyer Assistance Loan may be made subordinate only to the deed of trust to be held
by the first lien lender that is approved by the Agency pursuant to the Homebuyer Loan
Agreement. The deed of trust securing the Homebuyer's repayment of the Homebuyer
Assistance Loan shall be subordinate to no other lien(s), except as provided in the Homebuyer
Loan Agreement or as otherwise expressly approved in writing by the Agency Executive
Director in his or her sole and absolute discretion.
315.6 Assumption. The Homebuyer Loan and Homebuyer Loan Agreement
shall be assumable by eligible and qualified successors and assigns of the Homebuyer who are
approved in writing by the Agency pursuant to the terms of the Homebuyer Loan Agreement.
316. Financing of the Developer Improvements.
316.1 Approval of Financing. As required herein and as one of Agency's
Condition Precedent to each Closing, the Developer shall submit to the Agency Evidence of
Construction Financing and Evidence of Permanent Financing for the Rental Portion of the
Project for a Phase on or before the date set forth in the Schedule of Performance. The Agency
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shall approve or disapprove such Evidence of Construction Financing and/or Evidence of
Permanent Financing for the Rental Portion of the Project for such Phase within fifteen (15) days
of receipt of a complete submission. Approval shall not be unreasonably withheld or
conditioned. If the Agency shall disapprove any such Evidence of Construction Financing
and/or Evidence of Permanent Financing for the Rental Portion of the Project, the Agency shall
do so by Notice to the Developer stating the reasons for such disapproval and the Developer shall
promptly obtain and submit to the Agency new Evidence of Construction Financing and/or
Evidence of Permanent Financing for the Rental Portion of the Project for such Phase, as
applicable. The Agency shall approve or disapprove such new Evidence of Construction
Financing and/or Evidence of Permanent Financing for the Rental Portion of the Project in the
same manner and within the same times established in this Section 316.1 for the approval or
disapproval of the Evidence of Construction Financing and Evidence of Permanent Financing for
the Rental Portion of the Project as initially submitted to the Agency. The Developer shall close
the construction portion of the approved financing concurrently with the Closing for such Phase;
provided that the closing of approved financing may be delayed pursuant to Section 507 of this
Agreement. The parties understand and acknowledge that the Developer may propose the use of
equity financing with no debt financing as its construction financing for Phase FS.
316.2 Tax Credit Equity. The following requirements must be satisfied in
order for the equity financing for Tax Credit funding for each of Phase R-1 and Phase R-2 to be
approved by the Agency pursuant to this Section 316:
(a) The Developer shall use good faith efforts to solicit no less than
two (2) competitive bids from Tax Credit Investors for each of Phase R-1 and Phase R-2 of the
Project and shall have selected as the Investor Limited Partner for each Phase the investor
offering overall the most beneficial rates and terms, as reasonably approved by the Agency
Executive Director. The Developer shall submit complete documentation relating to each such
competitive solicitation to the Agency, including true copies of the invitation to bidders and each
full bid package submitted by bidding Tax Credit investors, in order to permit the Agency to
determine that the Developer has selected its Investor Limited Partner for such Phase that has
offered the most beneficial terms of financing and Tax Credit equity as required by this
Agreement. All such documentation shall be submitted no less than forty-five (45) days prior to
Closing for the applicable Phase.
(b) The equity investment of the Investor Limited Partner(s) of the
limited partnership for each of Phase R-1 and Phase R-2 shall not be less than the approximate
prevailing price for Tax Credits for similar developments at such time, taking into consideration
all relevant factors such as timing of required payments and amount of the Tax Credits.
(c) The identity of the Investor Limited Partner(s) shall be reasonably
acceptable to the Agency.
(d) Developer or its affiliates may receive a developer fee of up to the
maximum amount permitted by TCAC for each of Phase R-1 and Phase R-2. Fifty percent
(50%) of the Developer Fee for each of Phase R-1 and Phase R-2 may be disbursed only after
and conditioned upon completion of the construction of such Phase, subject to Developer's
eligibility for issuance by the Agency of the Release of Construction Covenants for such Phase.
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316.3 Required Submissions. In connection with each of Phase R-1 and Phase
R-2, Developer shall submit the following documents as evidence of Tax Credit financing:
(a) The Partnership Agreement or equivalent funding commitment
letter for such Phase from the Investor Limited Partner(s) which demonstrates that Developer has
sufficient funds and committed capital/equity for commencement through completion of
construction of such Phase, and that such funds have been committed to construction of the
Phase.
(b) A copy of the preliminary reservation letter from TCAC for such
Phase, notifying Developer that an allocation of Tax Credits has been reserved for the
construction of such Phase of the Developer Improvements, and further documentation
demonstrating that there have not been any material changes to the information provided by
Developer in the application submitted to TCAC relative to such Phase (or documentation
demonstrating that such material changes have been approved by TCAC), and that if there are
material changes then such information will be provided to TCAC (and the Agency).
316.4 No Encumbrances Except Mortgages, Deeds of Trust, or Sale and
Lease-Back for Development. Mortgages, deeds of trust and sale/leaseback financing are to be
permitted before completion of the construction of each Phase of the Developer Improvements
only with the Agency's prior written approval, which shall not be unreasonably withheld or
delayed, and only for the purpose of securing loans of funds to be used for financing the
acquisition of such Phase, construction of such Phase of the Developer Improvements (including
architecture, engineering, legal, and related direct costs as well as indirect costs) on or in
connection with such Phase, permanent financing, and any other purposes necessary and
appropriate in connection with development of such Phase under this Agreement, and only to the
extent such financing is by a responsible financial lending institution, person or entity on
commercially reasonable terms. The words "mortgage" and "trust deed" as used hereinafter
shall include sale and lease-back. The Developer may enter into a conveyance for financing after
the completion of such Phase of the Developer Improvements without the approval of the
Agency.
316.5 Holder Not Obligated to Construct Developer Improvements. The
holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by
the provisions of this Agreement to construct or complete any Phase of the Developer
Improvements or any portion thereof, or to guarantee such construction or completion; nor shall
any covenant or any other provision in this Agreement be construed so to obligate such holder.
Nothing in this Agreement shall be deemed to construe, permit or authorize any such holder to
devote the Site (or any Phase) to any uses or to construct any improvements thereon, other than
those uses or improvements provided for or authorized by this Agreement.
316.6 Notice of Default to Mortgagee or Deed of Trust Holders; Right to
Cure. With respect to any mortgage or deed of trust granted by the Developer as provided
herein, whenever the Agency may deliver any notice or demand to the Developer with respect to
any breach or default by the Developer in completion of construction of the Developer
Improvements, or any other default under this Agreement, the Agency shall at the same time
deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement a
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copy of such notice or demand. Each such holder shall (insofar as the rights granted by the
Agency are concerned) have the right, at its option, within thirty (30) days after the receipt of the
notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due
diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt
and the lien of its mortgage. Nothing contained in this Agreement shall be deemed to permit or
authorize such holder to undertake or continue the construction or completion of the Developer
Improvements (beyond the extent necessary to conserve or protect the improvements or
construction already made) without first having expressly assumed the Developer's obligations
to the Agency by written agreement reasonably satisfactory to the Agency. The holder, in that
event, must agree to complete, in the manner provided in this Agreement, the Developer
Improvements. Any such holder properly completing the Developer Improvement shall be
entitled, upon compliance with the requirements of Section 313 of this Agreement, to a Release
of Construction Covenants. It is understood that a holder shall be deemed to have satisfied the
thirty (30) day time limit set forth above for commencing to cure or remedy a Developer default
which requires title and/or possession of the Site if and to the extent any such holder has within
such thirty (30) day period commenced proceedings to obtain title and/or possession and
thereafter the holder diligently pursues such proceedings to completion and cures or remedies the
default.
316.7 Failure of Holder to Complete Developer Improvements. In any case
where, thirty (30) days after the holder of any mortgage or deed of trust creating a lien or
encumbrance upon the Site receives a notice from the Agency of a default by the Developer in
completion of construction of any Phase of the Developer Improvements under this Agreement,
and such holder has not exercised the option to construct as set forth in Section 316.6, or if it has
exercised the option but has defaulted hereunder and failed to timely cure such default, the
Agency may purchase the mortgage or deed of trust by payment to the holder of the amount of
the unpaid mortgage or deed of trust debt, including principal and interest and all other sums
secured by the mortgage or deed of trust. If the ownership of the applicable Phase has vested in
the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the
Agency upon payment to the holder of an amount equal to the sum of the following:
(a) The unpaid mortgage or deed of trust debt at the time title became
vested in the holder (less all appropriate credits, including those resulting from collection and
application of rentals and other income received during foreclosure proceedings);
(b) All expenses with respect to foreclosure including reasonable
attorneys' fees;
(c) The net expense, if any (exclusive of general overhead), incurred
by the holder as a direct result of the subsequent management of the Site;
(d) The costs of any improvements made by such holder;
(e) An amount equivalent to the interest that would have accrued on
the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust
debt and such debt had continued in existence to the date of payment by the Agency; and
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(f) Any customary prepayment charges imposed by the lender
pursuant to its loan documents and agreed to by the Developer.
316.8 Right of the Agency to Cure Mortgage or Deed of Trust Default. In
the event of a mortgage or deed of trust default or breach by the Developer prior to the
completion of the construction of any of any Phase of the Developer Improvements or any part
thereof, the Developer shall immediately deliver to the Agency a copy of any mortgage holder's
notice of default and the Agency shall have the right but no obligation to cure the default if the
Developer fails to cure within thirty (30) days after the Agency notifies the Developer of its
intention to cure. In such event, the Agency shall be entitled to reimbursement from the
Developer of all proper costs and expenses incurred by the Agency in curing such default. The
Agency shall also he entitled to a lien upon the applicable Phase to the extent of such costs and
disbursements. Any such lien shall be junior and subordinate to the mortgages or deeds of trust
pursuant to this Section 316.
400. OPERATION OF THE PROJECT.
401. Provision of Extremely and Very Low Income Rental Housing-Rental
Portion of the Project.
401.1 Number of Affordable Rental Units. Pursuant to this Agreement and the
Regulatory Agreement, the Developer covenants and agrees to make available, restrict
occupancy to, and rent the Rental Units at an affordable rent pursuant to Section 401.5 as
follows:
(a) Thirty-nine (39) of the two (2) bedroom Rental Units in Phase R-1
to Very Low Income Households at an Affordable Rent; twenty (20) of the two (2) bedroom
Rental Units in Phase R-2 to Very Low Income Households at an Affordable Rent;
(b) Eleven (11) of the two (2) bedroom Rental Units in Phase R-1 to
Extremely Low Income Households at an Affordable Rent; five (5) of the two (2) bedroom
Rental Units in Phase R-2 to Extremely Low Income Households at an Affordable Rent;
(c) Nineteen (19) of the three (3) bedroom Rental Units in Phase R-I
to Very Low Income Households at an Affordable Rent; nine (9) of the three (3) bedroom Rental
Units in Phase R-2 to Very Low Income Households at an Affordable Rent; and
(d) Four (4) of the three (3) bedroom Rental Units in Phase R-I to
Extremely Low Income Households at an Affordable Rent; three (3) of the three (3) bedroom
Rental Units in Phase R-2 to Extremely Low Income Households at an Affordable Rent.
401.2 Duration of Affordability Requirements. The Rental Units shall be
subject to the requirements of this Agreement for the later of (i) fifty-five (55) years from the
date of the City's issuance of a certificate of occupancy for the applicable Phase or (ii)
repayment in full of the Note.
401.3 Selection of Tenants. The Developer shall be responsible for the
selection of tenants for the Rental Units in compliance with lawful and reasonable criteria, as set
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forth in the Regulatory Agreement and the Management Plan which is required to be submitted
and approved by the Agency pursuant to Section 401.9.
401.4 Household Income Requirements. Following the initial lease-up of the
Rental Units in each of Phase R-1 and Phase R-2, and annually thereafter, the Developer shall
submit to the Agency, at the Developer's expense, a summary of the income, household size and
rent payable by each of the tenants of the Rental Units of such Phase. At the Agency's request,
the Developer shall also provide to the Agency completed income computation and certification
forms, in a form reasonably acceptable to the Agency, for any such tenant or tenants. The
Developer shall obtain, or shall cause to be obtained by the Property Manager, a certification
from each household leasing a Rental Unit demonstrating that such household is a Very Low
Income Household or Extremely Low Income Household, as applicable, and meets the eligibility
requirements established for the Rental Unit. The Developer shall verify, or shall cause to be
verified by the Property Manager, the income certification of the household.
401.5 Affordable Rent. The maximum Monthly Rent chargeable for the Rental
Units shall be annually determined in accordance with the following requirements. The Monthly
Rent for the Rental Units to be rented to Extremely Low Income Households shall not exceed the
requirements of TCAC and the Monthly Rent for the Rental Units to be rented to Very Low
Income Households shall not exceed the more restrictive of (i) TCAC or (ii) the amount set forth
in Section 50053(b)(2) of the California Health and Safety Code.
For purposes of this Agreement, "Monthly Rent" means the total of monthly
payments charged to and paid by tenants for (a) use and occupancy of each Rental Unit and land
and facilities associated therewith, (b) any separately charged fees or service charges assessed by
the 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 service, and (d) possessory interest, taxes or other fees or
charges assessed for use of the land and facilities associated therewith by a public or private
entity other than the Developer. 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. "Monthly Rent" does
not include optional payments by tenants for optional services provided by the Developer or the
Property Manager.
401.6 Occupancy Limits. The maximum occupancy of the Rental Units shall
not exceed more than such number of persons as is equal to the sum of the number of bedrooms
in the unit, multiplied by two (2), plus one (1). For the two (2) bedroom units, the maximum
occupancy shall not exceed five (5) persons. For the three (3) bedroom units, the maximum
occupancy shall not exceed seven (7) persons.
401.7 Marketing Program. The Developer shall prepare and obtain Agency
Executive Director's approval, which approval shall not be unreasonably withheld, of a
marketing program for the leasing of the Rental Units within each Phase (the "Marketing
Program"). The leasing of the Rental Units shall be marketed in accordance with the approved
Marketing Program as the same may be amended from time to time with Agency Executive
Director's prior written approval, which approval shall not unreasonably be withheld. The
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Developer shall provide the Agency with periodic reports with respect to the leasing of the
Rental Units. The Marketing Program shall contain a Lottery and Wait List/Preference List for
initial lease-up only. The Developer shall be responsible to organize, schedule and coordinate a
lottery drawing to select potential tenants for the Rental Units for initial lease-up only, which
shall be open to the public. The lottery shall take place not less than 90 days prior to completion
of the applicable Phase of the Rental Units. Preference in the lottery, so long as not inconsistent
with federal and State law (including, without limitation, all fair housing laws, rules and
regulations), shall be given as follows:
(1) Any persons who have been displaced from their residences due to
programs or projects implemented by the Agency within the Station District; and
(2) Other households who live or work in Santa Ana.
Subject to all fair housing laws, rules, and regulations, all categories shall receive
preference in the order listed. The requirements of this Section 401.7 shall only apply to the
extent that the number of applicants for Rental Units exceeds the number of Rental Units
available for lease upon initial lease-up.
For the purpose of the lottery drawing, the lottery will be divided by those who
have claimed a preference and those who do not. All lottery forms will be drawn and numbered
to create a complete list of alternate applications.
The Developer shall provide written notification to lottery participants informing
them of the results and their priority number. This priority number represents the order with
which prospective tenants will be reviewed for final determination of eligibility. If a household
who was selected claimed a preference but could not verify such preference, then that participant
will be deemed ineligible and the next selected participant will be notified.
401.8 Maintenance. The Developer shall maintain each Phase of the Rental
Portion of the Project, or cause same to be maintained in a decent, safe and sanitary manner, and
in accordance with the standard of maintenance of first class affordable housing apartment units
within Orange County, California. If at any time the Developer fails to maintain each Phase of
the Rental Portion of the Project in accordance with this Agreement and such condition is not
corrected within five (5) days after written notice from the Agency with respect to graffiti,
debris, and waste material, or thirty (30) days after written notice from the Agency with respect
to general maintenance, landscaping and building improvements, then the Agency, in addition to
whatever remedy it may have at law or in equity, shall have the right to enter upon such Phase
and perform all acts and work necessary to protect, maintain, and preserve such Phase, and to
attach a lien upon such Phase, or to assess such Phase in the amount of the expenditures arising
from such acts and work of protection, maintenance, and preservation by the Agency and/or
costs of such cure, including a reasonable administrative charge, which amount shall be promptly
paid by the Developer to the Agency upon demand.
401.9 Management Plan; Property Management. For each Phase of the
Rental Portion of the Project, the Developer shall submit for the reasonable approval of the
Agency a "Management Plan" which sets forth in detail the Developer's property management
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duties, a tenant selection process and crime prevention program, the procedures for the collection
of rent, the procedures for eviction of tenants, the rules and regulations of such Phase of the
Rental Portion of the Project and manner of enforcement, a standard lease form, an Operating
Budget, the identity of the manager of such Phase of the Rental Portion of the Project (the
"Property Manager"), and other matters relevant to the management of the Rental Portion of the
Project. The management of each Phase of the Rental Portion of the Project shall be in
compliance with the Management Plan which is approved by the Agency. The Agency hereby
approves Related Management Company, L.P. as the Property Manager for each Phase of the
Rental Portion.
If the Agency determines that the performance of the Property Manager as to a
particular Phase is deficient based upon the standards set forth in the Management Plan and in
this Agreement, the Agency shall provide notice to the Developer of such deficiencies, and the
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 501, the Agency shall have
the right to require the Developer to immediately remove and replace the Property Manager for
such Phase with another property manager or property management company which is
reasonably acceptable to the Agency, which is not related to or affiliated with the Developer, 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 applicable Phase of
the Rental Portion of the Project.
401.10 Monitoring and Recordkeeping. Throughout the Affordability Period,
Developer shall comply with all applicable recordkeeping and monitoring requirements set forth
in Health and Safety Code Section 33418 and shall annually complete and submit to the Agency
a report, prior to January 30th of each year, for each Phase of the Rental Portion which includes
the name, address, income and age of each occupant of a Rental Unit, the bedroom count and
Monthly Rent for such Rental Unit. The Agency agrees that the Developer may submit reporting
forms prepared and submitted in connection with any other similar reporting requirement,
including reports prepared for tax credit compliance, to the extent those forms contain the
information required hereunder. Representatives of the Agency shall be entitled to enter each
Phase of the Rental Portion of the Project, upon at least seventy-two (72) hours prior written
notice, to monitor compliance with this Agreement, to inspect the records, and to conduct an
independent audit or inspection of such records. The Developer agrees to cooperate with the
Agency in making each Phase of the Rental Portion of the Project available for such inspection
or audit. The Developer agrees to maintain records in a businesslike manner, and to maintain
such records for the term of this Agreement.
401.11 Regulatory Agreement and Notice of Affordability Restrictions. The
requirements of this Agreement which are applicable to the Rental Portion of the Project after the
conveyance of the Site to the Developer are set forth in each Regulatory Agreement.
Additionally, the Developer shall record a Notice of Affordability Restrictions on Transfer of
Property ("Notice of Affordability Restrictions") as to each Phase of the Rental Portion of the
Project in the form attached hereto as Attachment 12 and incorporated herein by this reference,
which shall run with the land and shall be enforceable against any owner who violates a covenant
or restriction and each successor in interest who continues the violation pursuant thereto. The
execution of a Regulatory Agreement and the Developer's execution of a Notice of Affordability
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Restrictions is a condition precedent to the Closing for a Phase, as set forth in Section 204. The
Agency shall subordinate this Agreement, each Regulatory Agreement and Notice of
Affordability Restrictions to the construction and permanent financing approved pursuant to
Section 316.1 by the execution of a subordination agreement in a form determined to be
reasonably acceptable to the Executive Director.
401.12 Relationship to Tax Credit Requirements. Notwithstanding any other
provisions of this Agreement, to the extent that a Tax Credit Regulatory Agreement executed by
the Developer as a requirement of receiving the Tax Credits for either (or both) Phase(s) of the
Rental Portion of the Project or any other regulatory agreement executed by the Developer as a
requirement to obtain financing for either (or both) Phase(s) of the Rental Portion of the Project,
are less restrictive with respect to the requirements applicable to tenant selection, tenant income
levels, unit rent levels or any other aspect of the construction and operation of such Phase(s) of
the Rental Portion of the Project than as provided in this Agreement and the Regulatory
Agreement, then the Developer shall comply with the requirements of this Agreement, including
the applicable Regulatory Agreement; provided, however, that in the event the covenants or
restrictions, including the affordability restrictions set forth in this Agreement, including the
Regulatory Agreements, are not the most restrictive provisions applicable to either (or both)
Phase(s) of the Rental Portion of the Project, and to the extent of an inconsistency between or
among such agreement(s), the Developer shall comply with the most restrictive of such
agreements. The foregoing requirements shall apply to the Developer and to its Property
Manager who is involved in the selection of tenants or the determination of rent amounts for the
Rental Portion of the Project.
401.13 Applicability of Section. The provisions of this Section 401 apply only
to the Rental Portion of the Project and are wholly inapplicable to the For-Sale Portion of the
Project.
402. Provision of Moderate Income For-Sale Housing-For-SaIe Portion of the
Project.
402.1 Number, Location and Quality of Affordable For-Sale Units. One (1)
of the Housing Units developed on each of the six (6) separate lots constituting Phase FS, the
For-Sale Portion of the Development shall be sold to Moderate Income Households, at the prices
set forth in Section 402.2 hereof, i.e., the Affordable For-Sale Units. The location of the
Affordable For-Sale Units within the For-Sale Portion of the Project will be subject to the
reasonable approval of the Agency Executive Director pursuant to applicable laws and
regulations. The Developer covenants and agrees that the workmanship, quality of materials,
and costs of construction for and the amenities, and physical features of each and all of the
Affordable For-Sale Units shall be equal to, and under no circumstances or conditions less
desirable than, all other Housing Units in the For-Sale Portion of the Project.
(a) The Developer will be constructing several models, plans, or types
of Housing Units in the For-Sale Portion of the Project. All of the Affordable For-Sale Units
will be three (3) bedroom Housing Units. Three of the Affordable Housing Units will be Plan 1
Units, two of the Affordable Housing Units will be Plan 2 Units, and one of the Affordable
Housing Units will be a Plan 3 Unit (as those terms as described in the Scope of Development).
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The Developer covenants and agrees that all the Affordable For-Sale Units in all respects shall
be the same/comparable in terms of quality of construction, amenities, materials, design, etc. as
the Housing Units of the same size and model that are designed, constructed, and sold on the
open market.
(b) The Agency acknowledges that a buyer of a market Housing Unit
may elect and pay for upgrades or improvements that are not included in the purchase price for a
Housing Unit of the same size and model and thus not necessarily included in a corresponding
Affordable For-Sale Unit, but nothing in the foregoing acknowledgment modifies or lessens the
Developer's obligation to provide first quality Affordable For-Sale Units as described above.
402.2 Maximum Sales Prices. Developer covenants and agrees that each of the
Affordable For-Sale Units shall be sold at an Affordable Housing Cost. The Developer
acknowledges and agrees that such calculation may require it to adjust the sales price for each
Affordable For-Sale Unit in order that the cumulative sums of the Homebuyer Assistance Loan,
Homebuyer's down payment, and proceeds of first lien are adequate to purchase such unit in
light of the statutory requirements that the Monthly Housing Cost or payment for such unit does
not exceed the Affordable Housing Cost as calculated as of the anticipated date of sale of each
Affordable For-Sale Unit.
402.3 Affordable Housing Resale Restriction. The Homebuyer of each
Affordable For-Sale Unit shall be obligated to enter into and execute the Homebuyer Loan
Agreement, which includes the requirement to pay a Contingent Equity Share Amount if the
Affordable For-Sale Unit is not sold to Eligible Persons and Families, and such other
documentation as the Agency reasonably requires. The Homebuyer Loan Agreement shall
provide for a forty-five (45) year affordability period (the "Affordability Period"), and shall
permit the sale of the Affordable For Sale Unit for a price in excess of that otherwise permitted
by the Homebuyer Loan Agreement prior to the end of the Affordability Period upon the
payment of an equity sharing amount to the Agency which permits the seller to retain a portion
of the sale proceeds.
402.4 Selection of Buyers; Marketing and Outreach Plan. The Developer
shall provide the Agency with a copy of its Marketing and Outreach Plan which shall set forth
how the Developer plans to provide interested households with information about the Affordable
For-Sale Units. The Developer shall be solely responsible for the selection of qualified
purchasers of the Affordable For-Sale Units. Developer shall ensure that there will be homebuyer
education in accordance with Section 315.4(b)(ii) hereof. The goal of the Marketing and
Outreach Plan is to insure that (i) targeted marketing of Affordable For-Sale Units is provided to
persons with the priorities set forth below, and (ii) the marketing of Affordable For-Sale Units to
the general public be as broad and inclusive as possible in order to inform and attract as many
prospective buyers as possible. If the Developer reasonably expects that the number of qualified
purchasers of the Affordable For Sale Units will significantly exceed the supply, the marketing
plan may include a lottery drawing with respect to the Affordable For-Sale Units, which shall be
open to the public. The Outreach and Marketing Plan and the associated applicant selection
procedures will be targeted to purchasers regardless of race, color, religion, sex, disability status,
familial status or national origin.
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Information shall also be provided on the Developer's website, City of Santa Ana
website, City cable channel, Workforce Investment Board, Santa Ana Chamber of Commerce,
Santa Ana Unified School District, Rancho Santiago Community College District, Community
Development Resource Network Newsletter, through neighborhood associations and to persons
who have been displaced within the Station District.
Preference shall be given as follows: (1) persons displaced within the Station
District shall be given an exclusive period of not less than fourteen (14) days to purchase
Affordable For-Sale Units, (2) after the conclusion of the exclusive period pursuant to
subparagraph (1) above, households who live or work in Santa Ana shall be given an exclusive
period of not less than fourteen (14) days to purchase Affordable For-Sale Units, and (3) after the
conclusion of the exclusive period pursuant to subparagraph (2) the general public shall be
eligible to purchase Affordable For-Sale Units. The Agency shall provide the Developer with a
list of persons displaced within the Station District and their contact information. Separate lists
shall be maintained for each preference category. If a potential buyer claims a preference but
could not verify such preference, such purchaser shall be provided the same priority as members
of the general public.
Pre-purchase counseling must be completed prior to the Closing of each
Affordable For-Sale Unit.
402.5 Income of Buyers. Prior to the sale of any Affordable For-Sale Unit, the
Developer shall submit to the Agency Executive Director a completed income computation and
certification form, in such form as may be provided by the Agency. Gross income and net
income of the household shall be determined in accordance with Health and Safety Code
Section 50093 and the provisions of Sections 6914 and 6916 of Title 25 of the California Code
of Regulations. The Developer shall obtain a certification from each prospective Homebuyer
demonstrating that such prospective Homebuyer is a Moderate Income Household and meets the
eligibility requirements established for the Affordable For-Sale Unit and that such Affordable
For-Sale Unit will be made available for purchase and sold at an Affordable Housing Cost to
such prospective Homebuyer- Notwithstanding anything herein to the contrary, each prospective
Homebuyer shall be required to make a down payment of not less than three percent (3%) of the
purchase which down payment must be part of the net assets of the prospective Homebuyer at
the time of application. The Developer shall verify the income certification of the prospective
Homebuyer as set forth below.
The Developer shall verify the income of each proposed Homebuyer of the
Affordable For-Sale Units by at least one of the following methods as appropriate to the proposed
Homebuyer:
(a) obtain two (2) paycheck stubs from the person's two (2) most
recent pay periods;
(b) obtain a true copy of an income tax return from the person for the
most recent tax year in which a return was filed-,
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(c) obtain an income verification certification from the employer of
the person;
(d) obtain an income verification certification from the Social Security
Administration and/or the California Department of Social Services if the person receives
assistance from such agencies; or
(e) obtain an alternate form of income verification reasonably
requested by and/or acceptable to the Agency, if none of the above forms of verification is
available to the Developer.
402.6 Maintenance Covenants; Association CC&Rs. The Developer shall
maintain the For-Sale Portion of the Project and all improvements thereon, including all
landscaping, in compliance with all applicable provisions of the City's Municipal Code, during
the period of Developer's ownership of the For-Sale Portion of the Project or any portion thereof.
The Developer shall prepare and submit the Association CC&Rs for the For-Sale Portion of the
Project to the Agency Executive Director for his or her reasonable approval. The Association
CC&Rs shall be recorded against the For-Sale Portion of the Project prior to the sale of any
Housing Units.
The Association CC&Rs shall require the owners of all Housing Units
constructed on the For-Sale Portion of the Project to be members of the Association. The
Association CC&Rs shall entitle each such owner to use of the common areas and facilities to be
constructed on the For-Sale Portion of the Project and shall set forth an equitable apportionment
of the costs of maintaining and operating such common areas and facilities. The Association
CC&Rs shall also obligate the Association to maintain and assume all liability for any
landscaping that is actually installed on the common areas for the For-Sale Portion of the
Development.
The Association CC&Rs shall be enforceable by the Agency and City (with the
right, but not the obligation to enforce the same), and any substantive amendment(s) to such
Association CC&Rs shall require the consent of the Agency Executive Director, which consent
shall not unreasonably be withheld. The Association CC&Rs shall specifically state that both the
City and Agency are intended third party beneficiaries thereof with the ability to enforce all the
obligations set forth therein, including, without limitation, the ability to cause any and all
maintenance and repair obligations to be performed or to otherwise undertake such maintenance
and repair subject to reimbursement for the costs incurred in connection with such maintenance
and/or repair secured by a lien on the property affected by the maintenance/repair. The internal
streets, if any, to be installed by Developer on the For-Sale Portion of the Project shall be private
streets and the City shall not accept any dedication of such streets; therefore, the Association
CC&Rs shall include a provision obligating the members of the Association to undertake and
bear any and all costs associated with the maintenance and repair of the internal streets on the
For-Sale Portion of the Project.
402.7 Applicability of Section. The provisions of this Section 402 apply only
to the For-Sale Portion of the Project and are wholly inapplicable to the Rental Portion of the
Project.
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403. Provisions Applicable to the Entire Project.
403.1 Use in Accordance with Redevelopment Plan. The Developer
covenants and agrees to devote, use, operate, and maintain the Site and the Project in accordance
with the Grant Deed, the Regulatory Agreement, and this Agreement. All uses conducted on the
Site, including, without limitation, all activities undertaken by the Developer pursuant to this
Agreement, shall conform to the Redevelopment Plan, all applicable provisions of the City's
Municipal Code, any and all laws, rules, and regulations applicable to the Site and the Project,
and the recorded documents pertaining to and running with the Site.
403.2 Nondiscrimination Covenants. The Developer covenants by and for
itself and any successors in interest that, except as otherwise provided or permitted by law, there
shall be no discrimination against or segregation of, any person or group of persons on account
of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those
bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision
(p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the Site, nor shall the grantee or any person
claiming under or through him or her, establish or permit any practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees, or vendees in the Site. The foregoing covenants shall
run with the land.
Except as otherwise provided or permitted by law, the Developer shall refrain
from restricting the rental, sale or lease of the Site (or any portion thereof) on any of the bases
listed above in this Section 403.2. All such deeds, leases or contracts shall contain or be subject
to substantially the following nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person or group
of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein
conveyed, nor shall the grantee or any person claiming under or through him or her, establish or
permit any practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the
premises herein conveyed. The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the following
conditions:
"That there shall be no discrimination against or segregation of any person
or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m)
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and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government
Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the
premises herein leased nor shall the lessee himself or herself, or any person claiming under or
through him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy, of tenants,
lessees, sublessees, subtenants, or vendees in the premises herein leased."
(c) In contracts: "There shall be no discrimination against or
segregation of, any person or group of persons on account of any basis listed in subdivision (a) or
(d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the premises which are the subject of this Agreement, nor shall the
grantee or any person claiming under or through him or her, establish or permit any practice or
practices of discrimination or segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein
conveyed. The foregoing covenants shall run with the land."
The covenants established in this Section 403.2 shall, without regard to technical
classification and designation, be binding for the benefit and in favor of the Agency and its
successors and assigns, and shall remain in effect in perpetuity.
403.3 Applicability of Section. The provisions of this Section 403 apply to the
entire Project, including both the For-Sale Portion of the Project and the Rental Portion of the
Project.
500. DEFAULT AND REMEDIES.
501. Default Remedies. Subject to the extensions of time set forth in Section 507,
failure by either party to perform any obligation hereunder or failure to use best efforts to fulfill a
condition precedent within the time periods provided herein following notice and failure to cure
as described hereafter, constitutes a "Default" under this Agreement. The refusal or failure of
the Developer or Agency to close Escrow following satisfaction of the Agency's and/or
Developer's Conditions Precedent for benefit of the party failing or refusing to close Escrow
constitutes a "Default" under this Agreement. A party claiming a Default shall give written
notice of Default to the other party specifying the Default complained of. Except as otherwise
expressly provided in this Agreement, the claimant shall not institute any proceeding against any
other party, nor terminate this Agreement, and the other party shall not be in Default as to non-
monetary Defaults other than transfers not permitted under this Agreement (as to which no right
to notice or cure shall apply) if such party within thirty (30) days from receipt of such notice
promptly, with due diligence, commences to cure, correct or remedy such failure or delay and
thereafter completes such cure, correction or remedy with due diligence. As to monetary
Defaults, a cure period of ten (10) days upon written notice shall apply.
502. Institution of Legal Actions. In addition to any other rights or remedies and
subject to the restrictions otherwise set forth in this Agreement, after expiration of the cure
period provided in Section 501 above, either party may institute an action at law or equity to seek
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specific performance of the terms of this Agreement, or to cure, correct or remedy any Default,
to recover damages for any Default, or to obtain any other remedy consistent with the purposes
of this Agreement. Specific performance shall be available as a remedy to the greatest extent
legally allowable. Such legal actions must be instituted in the Superior Court of the County of
Orange, State of California, in an appropriate municipal court in that county, or in the United
States District Court for the Central District of California. Notwithstanding anything to the
contrary contained herein, nothing in this Agreement, including the Attachments and in any
Implementation Agreements hereto, shall be construed to provide that a Default relating to one
Phase shall constitute a Default under any other Phase, i.e., there shall be no cross defaults
between Phases or each Phase's Developer entity. Accordingly, any rights and remedies sought
under this Agreement following a Default shall be limited to the Phase in which such Default
occurred.
503. Rights of Termination.
503.1 Termination by Agency. In the event that the Agency is not in Default
under this Agreement, and (a) the Developer does not fulfill one or more of the Agency's
Conditions Precedent with respect to a Phase which is capable of being satisfied by the
Developer on or before the time set forth herein (or in the Schedule of Performance) and such
condition is not satisfied after notice and an opportunity to cure as provided in Section 501
hereof, and such failure is not caused by the Agency; or (b) the Developer is otherwise in Default
under the terms of this Agreement and fails to cure such Default within the time set forth in
Section 501 hereof-, then this Agreement and any rights of the Developer or any assignee or
transferee with respect to or arising out of this Agreement shall, at the option of the Agency, be
terminated as to such Phase by written notice thereof to the Developer. From the date of the
written notice of termination of this Agreement as to such Phase by the Agency to the Developer
and thereafter this Agreement shall be deemed terminated as to such Phase (but not as to any
other Phase), then the Agency shall not be obligated to make any further disbursement of the
Agency Loan for such Phase or of any Homebuyer Assistance Loan, repayment of the
Promissory Note relating to such Phase shall be accelerated, and there shall be no further rights
or obligations between the parties with respect to such Phase, except that if the Developer is in
default hereunder, the Agency, after delivery of notice of default and expiration of the cure
period provided in Section 501 hereof, may pursue any remedies it has at law or equity against
the Developer in accordance with Section 502 hereof.
503.2 Termination by Developer. In the event the Developer is not in Default
under this Agreement, and (a) the Agency does not fulfill one or more of the Developer's
Conditions Precedent with respect to a Phase which is capable of being satisfied by the Agency
on or before the time set forth in this Agreement (or in the Schedule of Performance) and such
condition is not satisfied after notice and an opportunity to cure as provided in Section 501
hereof, and such failure is not caused by the Developer, or (b) the Agency is otherwise in Default
under the terms of this Agreement and fails to cure such Default within the time set forth in
Section 501 hereof; then this Agreement and any rights of the Agency with respect to or arising
out of this Agreement shall, at the option of the Developer, be terminated as to such Phase by
written notice thereof to the Agency. From the date of the written notice of termination of this
Agreement as to such Phase by the Developer to the Agency and thereafter this Agreement shall
be deemed terminated as to such Phase (but not as to any other Phase), the Developer shall not
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be obligated to further perform under this Agreement with respect to such Phase and there shall
be no further rights or obligations between the parties with respect to such Phase, except that if
the Agency is in default hereunder then the Developer, after delivery of notice of default and
expiration of the cure period provided in Section 501 hereof, may pursue any remedies they it
has at law or equity against the Agency in accordance with Section 502 hereof.
503.3 Termination by Either Party- In the event that the Agency is prohibited
by law from using money from the Housing Fund to fulfill any of its obligations hereunder or the
use of the other funding sources by Developer triggers the requirement to pay prevailing wages,
then each party may terminate this Agreement as to any Phase which has not previously been
conveyed to the Developer, and neither party shall have any further rights or obligations with
respect to the other with respect to the terminated Phases.
504. Acceptance of Service of Process. In the event that any legal action is
commenced by the Developer against the Agency, service of process on the Agency shall be
made by personal service upon the Agency Executive Director or in such other manner as may
be provided by law. In the event that any legal action is commenced by the Agency against the
Developer, service of process on the Developer shall be made in any manner as may be provided
bylaw.
505. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either
party of one or more of such 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.
506. Inaction Not a Waiver of Default. Any failures or delays by either party in
asserting any of its rights and remedies as to any Default shall not operate as a waiver of any
Default or of any such rights or remedies, or deprive either such party of its right to institute and
maintain any actions or proceedings which it may deem necessary to protect, assert or enforce
any such rights or remedies.
507. Force Majeure; Extension of Times of Performance. In addition to specific
provisions of this Agreement, performance by either party hereunder shall not be deemed to be in
Default, and all performance and other dates specified in this Agreement shall be extended,
where delays or Defaults are due to: war; insurrection; strikes; lockouts; riots; floods;
earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine
restrictions; freight embargoes; lack of transportation; governmental restrictions or priority;
litigation; mandamus proceedings; administrative proceedings; unusually severe weather;
inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or
supplier; acts or omissions of the other party; acts or failures to act of the City or any other
public or governmental agency or entity (other than the acts or failures to act of the City or
Agency which shall not excuse performance by the Agency); or any other causes beyond the
control or without the fault of the party claiming an extension of time to perform.
Notwithstanding anything to the contrary in this Agreement, an extension of time for any such
cause shall be for the period of the enforced delay and shall commence to run from the time of
the commencement of the cause, if notice by the party claiming such extension is sent to the
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other party within thirty (30) days of the commencement of the cause. Times of performance
under this Agreement may also be extended in writing by the mutual agreement of the Agency
and Developer. Notwithstanding any provision of this Agreement to the contrary, the lack of
funding to complete the Developer Improvements shall not constitute grounds of enforced delay
pursuant to this Section 507.
600. GENERAL PROVISIONS.
601. Notices, Demands and Communications Between the Parties. Any approval,
disapproval, demand, document or other notice ("Notice") which either party may desire to give
to the other party under this Agreement must be in writing and may be given by any
commercially acceptable means to the party to whom the Notice is directed at the address of the
party as set forth below, or at any other address as that party may later designate by Notice.
To Agency: Community Redevelopment Agency
of the City of Santa Ana
20 Civic Center Plaza
Santa Ana, California 92701
Attention: Agency Executive Director
Copy: City Attorney I Agency Counsel
Copy to: Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
Attention: Thomas P. Clark, Jr.
To Developer: Santa Ana Station District, LLC
18201 Von Karman Avenue, Suite 900
Irvine, California 92612
Attention: William A. Witte
Any written notice, demand or communication shall be deemed received
immediately if delivered by hand and shall be deemed received on the third day from the date it
is postmarked if delivered by registered or certified mail.
602. Transfers of Interest in Site or Agreement.
602.1 Prohibition. The qualifications and identity of the Developer are of
particular concern to the Agency. It is because of those qualifications and identity that the
Agency has entered into this Agreement with the Developer. For the period commencing upon
the Date of Agreement and until the termination of the Redevelopment Plan, no voluntary or
involuntary successor in interest of the Developer shall acquire any rights or powers under this
Agreement, nor shall the Developer make any total or partial sale, transfer, conveyance,
assignment, subdivision, refinancing or lease of the whole or any part of the Site or the
Developer Improvements thereon, (any of which is hereafter referred to as a "Transfer") without
prior written approval of the Agency, except as expressly set forth hereinafter. The person or
entity making the Transfer is referred to herein as the Transferor and the person or entity
accepting the Transfer is referred to herein as the "Transferee."
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692.2 Permitted Transfers. Notwithstanding any other provision of this
Agreement to the contrary, the Agency approval of a Transfer shall not be required in connection
with any of the following:
(a) Any transfers of Phase R-1 and Phase R-2 of the Site or
assignment of the Agreement with respect to Phase R-1 and Phase R-2 to an entity or entities
(each, a "Tax Credit Partnership") in which the Developer (or a limited liability company in
which The Related Companies of California, LLC, directly or indirectly, owns a controlling
interest) is a general partner or managing member. Affordable Housing Access, Inc. (or a
limited liability company in which Affordable Housing Access, Inc. is a managing member) is
hereby pre-approved as a general partner or managing member of any such Tax Credit
Partnerships.
(b) Any grant by a Tax Credit Partnership of a purchase option and/or
right of first refusal of its rights in and to Phase R-1 and/or Phase R-2 to affiliates of The Related
Companies of California, LLC and/or Affordable Housing Access, Inc, or the transfer of Phase
R-1 and/or Phase R-2 pursuant thereto.
(c) The conveyance or dedication of any portion of the Site to the City
or other appropriate governmental agency, or the granting of easements or permits to facilitate
construction of the Developer Improvements.
(d) Any requested assignment for financing purposes (subject to such
financing being considered and approved by the Agency pursuant to Section 316 herein),
including the grant of a deed of trust to secure the funds necessary for construction and
permanent financing of the Developer Improvements.
(e) Subject to the provisions of this Agreement, the leasing of Rental
Units to qualified persons and households in the normal course of business.
(f) Subject to the provisions of this Agreement, the sale of For-Sale
Unit(s) to qualified persons and households in the normal course of business.
(g) Any Transfer of the For-Sale Portion of the Project and the
corresponding rights and obligations of this Agreement relating to Phase FS and the For-Sale
Portion to City Ventures, LLC, a Delaware limited liability company (or a limited liability
company in which City Ventures, LLC or an entity controlled by City Ventures, LLC is the
managing member and, directly or indirectly, owns a controlling interest) ("City Ventures"),
provided that City Ventures assumes all of the provisions of this DDA that relate to and/or
concern the For-Sale Portion of the Project pursuant to an assumption agreement (or assignment
and assumption agreement) that is submitted to and approved by the Agency Executive Director.
Notwithstanding anything to the contrary contained in this Agreement, or
otherwise, upon any Transfer contemplated by Sections 602.2(a) or (g) above, the Agency shall
release and forever discharge the Developer from any further liability or obligation with respect
to the obligations under this Agreement as to the Phase to which such assignment(s) relate,
which release shall include, without limitation, release under Section 1542 of the California Civil
Code. The Agency shall provide such release in writing concurrent with such assignment or
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Transfer (and it may be set forth in any applicable Implementation Agreement associated with
the Phase to which release relates). From and after any assignment or Transfer under
Sections 602.2(a) or (g), for all purposes of the Phase to which such assignment or Transfer
relates under this Agreement (and the Attachments) the term "Developer" shall thereafter mean
and refer solely and exclusively to the assignee or Transferee, and not to the original Developer
hereunder or the assignee or Transferee of any other Phase.
In the event of a Transfer by the Developer under subparagraphs (a) through (g),
inclusive, above not requiring the Agency's prior approval, the Developer nevertheless agrees
that at least ten (10) days prior to such Transfer it shall give written notice to the Agency of such
Transfer and satisfactory evidence that the Transferee has assumed jointly with the Developer
the obligations of this Agreement.
602.3 Agency Consideration of Requested Transfer. The Agency agrees that
it will not unreasonably withhold approval of a request made pursuant to this Section 602,
provided the Developer delivers written notice to the Agency requesting such approval. Such
notice shall be accompanied by sufficient evidence regarding the proposed assignee's or
transferee's applicable operational qualifications and experience, and its financial commitments
and resources, in sufficient detail to enable the Agency to evaluate the proposed assignee or
purchaser pursuant to the criteria set forth in this Section 602 and as reasonably determined by
the Agency. The Agency shall evaluate each proposed transferee or assignee on the basis of its
applicable development and/or qualifications as it relates to a proposed transferee who is
obligated to complete the Developer Improvements, and experience in the operation of facilities
similar to the Developer Improvements, and its financial commitments and resources, and may
reasonably disapprove any proposed transferee or assignee, during the period for which this
Section 602 applies, which the Agency determines does not possess equal or better qualifications
than the transferring Developer. An assignment, assumption and release agreement in form
satisfactory to the Agency's legal counsel shall also be required for all proposed assignments.
Within thirty (30) days after the receipt of the Developer's written notice requesting Agency
approval of an assignment or transfer pursuant to this Section 602, the Agency shall either
approve or disapprove such proposed assignment or transfer, or shall respond in writing by
stating what further information, if any, the Agency reasonably requires in order to determine the
request complete and determine whether or not to grant the requested approval. Upon receipt of
such a response, the Developer shall promptly furnish to the Agency such further information as
may be reasonably requested.
602.4 Successors and Assigns. All of the terms, covenants and conditions of
this Agreement shall be binding upon the Developer and its permitted successors and assigns.
Whenever the term "Developer" is used in this Agreement, such term shall include any other
permitted successors and assigns as herein provided.
602.5 Assignment by Agency. The Agency may assign or transfer any of its
rights or obligations under this Agreement with the approval of the Developer, which approval
shall not be unreasonably withheld; provided, however, that the Agency may assign or transfer
any of its interests hereunder to the City at any time without the consent of the Developer.
63
DOCSOC/ 1400673 v 14/200272-0001
80A-332
602.6 No Cross Default/Release from Liability. In the event of a Transfer of
Phase FS permitted under Sections 602.2 and/or 602.3 (i) a Default by a Transferor or Transferee
shall not he considered a Default by the other, and (ii) the Transferor shall be relieved of any
further liability hereunder with respect to Phase FS.
603. Non-Liability of Officials and Employees of the Agency. No member, official
or employee of the Agency or the City shall be personally liable to the Developer, or any
successor in interest, in the event of any Default or breach by the Agency or for any amount
which may become due to the Developer or its successors, or on any obligations under the terns
of this Agreement.
604. Relationship Between Agency and Developer. It is hereby acknowledged that
the relationship between the Agency and the Developer is not that of a partnership or joint
venture and that the Agency and the Developer shall not be deemed or construed for any purpose
to be the agent of the other. Accordingly, except as expressly provided herein or in the
attachments hereto, the Agency shall have no rights, powers, duties or obligations with respect to
the development, operation, maintenance or management of the Developer Improvements. The
Developer agrees to indemnify, hold harmless and defend the Agency from any claim made
against the Agency arising from a claimed relationship of partnership or joint venture between
the Agency and the Developer with respect to the development, operation, maintenance or
management of the Site or the Developer improvements.
605. Agency Approvals and Actions. The Agency shall maintain authority of this
Agreement and the authority to implement this Agreement through the Agency Executive
Director. The Agency Executive Director shall have the authority to make approvals, issue
interpretations, waive provisions, request issuance of warrants and make payments authorized
hereunder, make and execute further agreements (including Implementation Agreements) and/or
enter into amendments of this Agreement on behalf of the Agency so long as such actions do not
materially or substantially change or modify the uses or development permitted on the Site, or
materially or substantially add to the costs, responsibilities, or liabilities incurred or to be
incurred by the Agency as specified herein, and such interpretations, waivers and/or amendments
may include extensions of time to perform as specified in the Schedule of Performance and any
schedule of performance attached to an Implementation Agreement. All material and/or
substantive interpretations, waivers, or amendments shall require the consideration, action and
written consent of the Agency Board. Further, Agency Executive Director shall maintain the
right to submit to the Agency Board for consideration and action any non-material or non-
substantive interpretation, waiver or amendment, if in his or her reasonable judgment he or she
desires to do so.
606. Counterparts. This Agreement may be signed in multiple counterparts which,
when signed by all parties, shall constitute a binding agreement. This Agreement is executed in
three (3) originals, each of which is deemed to be an original.
607. Integration. This Agreement contains the entire understanding between the
parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are merged in this
Agreement and shall be of no further force or effect. Each party is entering this Agreement
64
DOCSOC/ 1400673v 14/200272-0001
80A-333
based solely upon the representations set forth herein and upon each party's own independent
investigation of any and all facts such party deems material. This Agreement includes
pages 1 through 66 and Attachment Nos. i through 13, which constitute the entire understanding
and agreement of the parties, notwithstanding any previous negotiations or agreements between
the parties or their predecessors in interest with respect to all or any part of the subject matter
hereof.
608. Real Estate Brokerage Commission. The Agency and the Developer each
represent and warrant to the other (bat no broker or finder is entitled to any commission or
finder's fee in connection with the Developer's acquisition of the Site from the Agency. The
parties agree to defend and hold harmless the other party from any claim to any such commission
or fee from any broker, agent or finder with respect to this Agreement which is payable by such
party.
609. Attorneys' Fees. In any action between the parties to interpret, enforce, reform,
modify, rescind, or otherwise in connection with any of the terms or provisions of this
Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive
relief, or any other relief to which it might be entitled, reasonable costs and expenses including,
without limitation, litigation costs and reasonable attorneys' fees.
610. Titles and Captions. Titles and captions are for convenience of reference only
and do not define, describe or limit the scope or the intent of this Agreement or of any of its
terms. Reference to Section numbers are to Sections in this Agreement, unless expressly stated
otherwise.
611. Interpretation. As used in this Agreement, masculine, feminine or neuter gender
and the singular or plural number shall each be deemed to include the others where and when the
context so dictates. The word "including" shall be construed as if followed by the words
"without limitation." This Agreement shall be interpreted as though prepared jointly by both
parties.
612. No Waiver. A waiver by either party of a breach of any of the covenants,
conditions or agreements under this Agreement to be performed by the other party shall not be
construed as a waiver of any succeeding breach of the same or other covenants, agreements,
restrictions or conditions of this Agreement.
613. Modifications. 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.
614, Severability. If any term, provision, condition or covenant of this Agreement or
its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted by law.
65
DOCSOC/ 1400673 v1 4/200272-0001
80A-334
615. Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day escrow opens), and including
the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also
excluded. The term "holiday" shall mean all holidays as specified in Section 6700 and 6701 of
the California Government Code. If any act is to be done by a particular time during a day, that
time shall be Pacific Time Zone time.
616. 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.
617. Time of Essence. Time is expressly made of the essence with respect to the
performance by the Agency, the Developer of each and every obligation and condition of this
Agreement.
618. Cooperation. Each party agrees to cooperate with the other in this transaction
and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or
appropriate to carry out the purposes and intent of this Agreement including, but not limited to,
releases or additional agreements.
619. Conflicts of Interest. No member, official or employee of the Agency shall have
any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or
employee participate in any decision relating to the Agreement which affects his personal
interests or the interests of any corporation, partnership or association in which he is directly or
indirectly interested.
620. Date of Agreement. The date of this Agreement shall be the date set forth in the
first paragraph hereof.
621. Implementation of Agreement and Each Phase of the Project. The parties
acknowledge that, due to the long term nature of the Project and the implementation thereof in
three Phases, it may be necessary and/or appropriate at some time in the future, or from time to
time, for the parties to enter into various Implementation Agreements or to otherwise execute
additional documentation to clarify and implement the provisions of this Agreement, provide for
one or more Transfers, and/or provide for the incorporation of additional or different funding
and/or financing sources for the development and operation of each Phase of the Project. Each
party agrees to cooperate in good faith to negotiate and enter into such various Implementation
Agreements for each Phase of the Project as may be determined to be reasonably necessary
and/or appropriate by the Developer and the Agency Executive Director, in their reasonable
discretion, subject to the limitations of Section 605. Implementation Agreements entered into
pursuant to this Section 621 may modify the terms of this Agreement as to one or more Phase(s)
66
DOCSOC! 1400673v 1 41200 27 2-0001
80A-335
of the Project, so long as such actions do not materially or substantially change or modify the
uses or development permitted on the Site, or materially or substantially add to the costs,
responsibilities, or liabilities incurred or to be incurred by the Agency-
IN WITNESS WHEREOF, the Agency and the Developer have executed this
Agreement as of the date set forth above.
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, a public body,
corporate and politic
By:& ki///'(LA=
Cynthia J. Nel on
Executive Director
ATTEST:
DSQ ?? {l r7
Maria D. Huizar, Clerk of the Council
[Signature block continues on next page.]
DO C SO G 14 00673v 1420 0272-0001
67
80A-336
DEVELOPER:
SANTA ANA STATION DISTRICT, LLC,
a California limited liability company
By: The Related Companies of California, LLC,
a California limited liability company,
its member
By. Wv
William A. Witte, President
By: Griffin Realty Corporation, a California
corporation, its member
By: 1 N.
ger N. To t, President
68
DOCSOCJ 1400677v 14200272-0001
80A-337
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Orange I SS.
On June 24, 2010 before me L.J. Ortiz-Rodriguez, Notary Public
Dale Name and Tille of Officer (e.g.,'Jane Doe, Notary Public)
personally appeared Cynthia J. Nelson
Nznn(s) ar &qw(s)
who proved to me on the basis of satisfactory
evidence to be the personal whose name,(a`5
is154 subscribed to the within instrument
L. J. ORTIZ-HGUHIGUEZ and acknowledged to me that 0/she/th?v
Commission* tea&ao9 executed the same in /her/
Notary Public - County authorize¢ capacity(i and that by
Orange mae coumy/her/l1? it signatu a on the instrument the
My Comm. Eaplraa Ma 3a, 2013+
person or a enti upon behalf of which
the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under
the laws of the State of California that the
foregoing is true and correct.
WITNESS my hand and official seal.
Plana Nolary Seal Above
OPTd signatu r o ryPublic
NAL
Though the information below is not required bylaw, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this rorm to another document
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signet's Name:
? Individual
? Corporate Officer-Title(s):
? Partner -- ? Limited ? General
? Attorney in Fact
? Trustee
? Guardian or Conservator
? Other:
Signer is Representing:
80A-338
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Orange I S&
On June 7, 2010 before me Claudia M. FemandezShaw, Notary Public
Date Name and Title of officer (e.g., -Jane Doe, Notary Public')
personally appeared William A. Witte
No (3)d St,aNa)
ClA11DlA M. FERNANDEZ SHAW
Cofmdubn • 1875128
I -f Notary Public -California
Onnpa county
Ccm%M. aJan$5,20t4~
who proved to me on the basis of satisf e
acto
evidence to be the person whose nam
?afe-subscribed to th1within instrument
and acknowledged to me that ?Oshe/tfitey
executed the same in weir
authorized capacity(i i and that by
01herlthei?-signatu e on the instrument the
persoor the entity upon behalf of which
the soacted, executed the instrument.
I certify under PENALTY OF PERJURY under
the laws of the State of California that the
foregoing is true and correct.
hand and official seal.
Place Notary Seal Above
Signature or Notary Public /I
_ OPTIONAL Cl
Though the information below is not required bylaw, if may prove valuable to persons relying on )he document
and could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signers Name:
? Individual
? Corporate Officer-Title(s):
? Partner - ? Limited ? General
? Attorney in Fact
? Trustee
? Guardian or Conservator
? Other:
Signer is Representing:
80A-339
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Orange SS.
On June 7. 2010 before me Claudia M. FemandezShaw, Notary Public
Date Name and Title of Officer (e.g.. "Jane Doe, Notary Public)
personally appeared Roger N. Torriero
Name(s) of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the persono) whose name(4
C.okfe subscribed to the within instrument
and acknowledged to me that J24hefthey
executed the same in JMAer/ttti?1P'
authorized capacity(! O), that by
/hedUieir signal r ) on the instrument the
person(, or the entity upon behalf of which
the person(f acted, executed the instrument.
CLAUDIA M. FERNANDEZ SHAW
Commission a 1875128 1 certify under PENALTY OF PERJURY under
Notary Public • California £ the laws of the State of California that the
O p
M Comm. Expires Janry 1 foregoing is true and correct.
- - E i re- - - -- -
TNESS hand and official seal
Place Notary Seal Above `
Slgnat reorNotary Puh-
OPTIONAL
Though the information below is not required bylaw, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signers Name:
? Individual
? Corporate Officer-Title(s):
? Partner -- ? Limited ? General
? Attorney in Fact
? Trustee
? Guardian or Conservator
? Other:
Signer is Representing:
80A-340
ATTACHMENT NO. I
SITE MAP
I D?,
D
F? F]
Agency Parcels
® Phase R-1
Phase R-2
® Phase FS
DOCSOCR 400673v 141200272-0001
ATTACHMENT NO. I-1
Segura PmperUes
AdcriVonaWmpotbes
StaUon District
80A-341
ATTACHMENT NO.2
LEGAL DESCRIPTION
Phase FS:
Address
1 609 N. Garfield
2 901 Brown
3 905 Brown
4 51 t E. Fifth Street
5 505 E. Fifth Street
6 501 E. Fifth Street
(501 112 & 507
Mortimer)
7 602-604 E. Sixth Street
(511-517 N. Minter SI)
8 621 E. Fifth Street
(508 & 510 N. Porter)
9 615 E. Fifth Street
10 607 E. Fifth Street
11 601 E, Fifth Street
(507 & 505 N. Minter
St)
12 712 E, Fifth Street
13 606 E. Fifth Street
14 610 & 612 E. Fifth Street
15 616 E. Fifth Street
16 620 E. Fifth Street
APN Legal Description
398-313-07 sn A"A EAST LOT 12 BLK&X&NM LMr 17 BLK61
398-313-08 SSA LEAST W BL SW YW FT MM SW YMFr
1, IS& 398-313-09 ?A E ?rT BM 65LM 14.15 A 16-M A'ELY RELT
398-332-07 M=, ADDDLK6=
398-332-08 FRUMS DBLK6L 2
398-332-09 FRUMSADDBLK6=1
398-333-01 MMADDm,Kn.vrlo
398-333-05 MoS. ADD HLK7 LOT5
398-333-06 mUMAnUH1K7LUT4
398-333-08 [RUM. A[DDDLK71A 2
398-333-09 MUMS MU HLK7 LMI
398-337-03 MuU SADDRI.K9I.[M'a
398-338-02 MUMS ADD BI,Ka I-M9
398-338-03 MtUoSADD31Ika1MX
398-338-04 MUM ADDDLKg117r7
398-338-05 FRUMADVIII.Ka1AT6
ATTACHMENT NO. 2-1
DOC SOC/ 1 40D673v 141200272-0001
80A-342
Phase R-3-
Address APN Legal Description
1 611 N
Minter 398-311-01 MUnSMDTDSANfA ANA FWLOf2 DIK P WLY 1o05T(&VU
. WLY IN FT LOT J DIX T(ANP LOT 6 DIX F WLYIDO IT N1.Y 27.60
(621 N. Minter) FrUNRR
2 612 E. Santa Ana Blvd. 398-311-02 MUMADTTO SANTA ANA V&sI I,Or]DLK FRI.Y TDFT(AND
MY7DnLM3&60LKF
3 709 Sixth Street
E 398-311-09 MUMAnnTOSM-rA ANA G&ST1,Or 11 n1.KFRLY42FTW1.Y
. 12OIT(ANDELY45F1W 17120FT L(7f 12DLKF
4 711 E. Sixth Street 398-311-10 RUTSAnn TO SANTA ANA IJTTIW 12 DIX PSDLY 7OFTE.Y
50 FT
5 604 N
Lac
Lacy 398-311-11 IRUnSMDTOSANrA ANA IAWLCTT I I NI.KFSNLY I2ET ELY
. SOFT 711E REORLUT12 DIX FNWLY 25 1713,Y 5017 TiI AROP
6 606 Lacy
N 398-311-12 MUTTS NIDTOSANTA ANAPAWIM 11111.KFNWLY38FTELY
.
7 6I4&618 N. Lacy 398-311-13 MUTTS APPTOSANTA ANA PASIO9 DIK F(ANDS4pWM
R L(TT 5 Dlx F
8 620 N
Lac
y 398-311-I4 FRUITS AIM TO SAMT ANA F]MCT 8 DIX FALL.E)(S4 PFW
. 25 Pf-
9 614 E. Santa Ana Blvd. 398-311-15 FRUITS AID) TO SANTA ANA Fa4T LOIT I DIK F WI.Y 70 FT(AND
WLY M FT L CTS4&5INA1:
10 622 E. Santa Ana Blvd. 398-311-16 MUGS ADO TOSMTA XNA FAST LOT I DIX F SVLY SO FTELY IN
FT(ANT) WLY M FrELY IDDITL(TIS 4 & 511IXIj
11 626&628 E. Santa Ana Blvd. 398-311-17 MUTTS ADPTYI SANTA ANA PAS[ LTT I DIX F ELY SO FT(&ND
ELY 5)Fr L OT A DLK F
12 622 N. Lacy 398-311-18 IRUnSADPn)SWIAANAI?!ZrISrt5DIXFELYwe2
13 601 -603 E. Sixth Street 398-311-19 MUM APPTO SANTA ANA VAWJIIR F LCTR PDR OF LCTAND
MRO2=7&ID
(609 N. Minter)
DOCSOC/1400673v 14800272-0001
ATTACHMENT NO. 2-2
80A-343
Phase R-2:
Address APN Legal Description
1 611 N. Lacy 398-312-04 SAMAMAF LMIO BLK76(ANDLOr I I DLK76
2 609 N. Lacy 398-312-05 SA AMA E T LW 12 BL 6(A Nln l 13 DI 76
3 601 N
Lacy 398-312-08 E LM 15 DLK76SWLY 107 n(AND SWLY 1071T
SV
Ae A
. L
r
C
16 76
4 801 Brown 398-312-09 NAEA LM 15 DLK76N Y 43 RAND NT-'LY 43 FrLM
168LK b
5 618 N. Garfield 398.312-15 SANTA ANA EAST1 0 DLK76 ANDLM 26 ELK 76
6 622-624 N. Garfield 398.312.16 SANTA ANA ENT LOT 27 DLK76(AND LM 23 DLK 76
7 626-628 N. Garfield 398.312-17 SANTA ANA EAST LOT 29 DM NT Y 90 n(MD NELY W Ff LM
30 BLK76
8 714 E. Santa Ana Blvd. 398.312-18 SA AMA EASTLM29BLK76 SWLY60Fr(MDSWLY Off
LOTS MT032 W BLK 76
9 630 N. Garfield 398.312.19 n AE L0T31BLK76MR0rLMANDMR0FLM32
gn
erA
L
A
10 605-607 N. Lacy 398-312.20 SATAMAEASTDLK76LUTHMDULKMMRLM16
11 625 N. Garfield 396.313-01 SA\TAANAEA L 5DLK65(ANDLOr1BLK65WMff( D
W50ETL0-2.3 4B[ V
12 804 E. Santa Ana Blvd. 398-313-02 SANTAANAEA6T I DLK65E6BPT(ANDL606TW WOIT
LM. 2.3&4 BLK6S
13 623 N. Garfield 398-313-04 SANrn ANAEASTDLK65L 6&7
14 619 N. Garfield 398.313-05 SAMAANA F- DLK65LMB&9
O OC S O G 1400673 v l4/200272-0001
ATTACID4ENT NO. 2-3
80A-344
ATTACHMENT NO.3
RECORDING REQUESTED BY, )
AND WHEN RECORDED MAIL TO: )
Community Redevelopment Agency )
of the City of Santa Ana )
20 Civic Center Plaza )
Santa Ana, California 92702 )
Attn: Executive Director )
This document is exempt from payment of a
recording fee pursuant to Government Code
Sections 27393 and 6103.
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, the
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public
body, corporate and politic ("Agency"), acting to carry out the Redevelopment Plan
("Redevelopment Plan") for the Redevelopment Project ('Project"),
under the Community Redevelopment Law of California, as of 2010, hereby
grants to , a
("Developer"), the real property hereinafter referred to as the "Agency Parcels,"
Exhibit A attached hereto and incorporated herein, subject to the existing easements
and covenants of record described there.
described in
, restrictions
1. The Agency Parcels are conveyed in accordance with and subject to the
Redevelopment Plan for the Redevelopment Project, and a Disposition and Development
Agreement entered into between Agency and Developer dated as of 2010
("Agreement'), a copy of which is on file with the Agency at its offices as a public record and
which is incorporated herein by reference. The Agreement generally requires the Developer to
construct certain for-rent and for-sale dwelling units on the Agency Parcels ("Improvements")
and to operate such Improvements in accordance with the terms of the Agreement and that
certain Regulatory Agreement executed by and between the Agency and Developer and recorded
concurrently herewith.
2. Agency excepts and reserves from the conveyance herein described all interest of
the Agency in oil, gas, hydrocarbon substances and minerals of every kind and character lying
more than five hundred (500) feet below the surface, together with the right to drill into, through,
and to use and occupy all parts of the Agency Parcels lying more than five hundred (500) feet
below the surface thereof for any and all purposes incidental to the exploration for and
production of oil, gas, hydrocarbon substances or minerals from said Agency Parcels or other
lands, but without, however, any right to use either the surface of the Agency Parcels or any
portion thereof within five hundred (500) feet of the surface for any purpose or purposes
whatsoever, or to use the Agency Parcels in such a manner as to create a disturbance to the use or
enjoyment of the Agency Parcels.
DOC S OCJ 1400673 v 14!200272-0001
ATTACHMENT NO. 3-1
80A-345
3. Developer covenants by and for itself and any successors in interest that, except
as otherwise provided or permitted by law, there shall be no discrimination against or
segregation of, any person or group of persons on account of any basis listed in subdivision (a) or
(d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the Agency Parcel, nor shall the grantee or any person claiming under or
through him or her, establish or permit any practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the Agency Parcel. The foregoing covenants shall run with
the land.
Except as otherwise provided or permitted by law, Developer shall refrain from
restricting the rental, sale or lease of the Site on any of the bases listed above in this Section 3.
All such deeds, leases or contracts shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
(a) In deeds: 'The grantee herein covenants by and for himself or herself, his
or her heirs, executors, administrators, and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of, any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (in) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein
conveyed, nor shall the grantee or any person claiming under or through him or her, establish or
permit any practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the
premises herein conveyed. The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators, and assigns, and all persons claiming under or through
him or her, and this lease is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person
or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m)
and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government
Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the
premises herein leased nor shall the lessee himself or herself, or any person claiming under or
through him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy, of tenants,
lessees, sublessees, subtenants, or vendees in the premises herein leased."
(c) In contracts: '"There shall be no discrimination against or segregation of,
any person or group of persons on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of
Docs oCl 1400673 v 141200272-0001
ATTACHMENT NO. 3-2
80A-346
the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment
of the premises which are the subject of this Agreement, nor shall the grantee or any person
claiming under or through him or her, establish or permit any practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The
foregoing covenants shall run with the land."
4. Except as otherwise expressly provided herein, the Site Condition upon
Conveyance from the Agency to Developer shall be "as-is," with no warranty expressed or
implied by Agency, including without limitation, the presence of Hazardous Materials or the
condition of the soil, its geology, the presence of known or unknown seismic faults, or the
suitability of the Site for the development purposes intended hereunder.
From and after the date on which Developer completes grading with respect to
any Phase of the Site as evidenced by certification by the City's Building Official, and to the
extent that Developer does not object in writing to the Environmental Condition of such Phase
within ten (10) days following completion of such grading, the Developer shall waive, release
and discharge forever the Agency and the City, and their respective employees, officers, agents
and representatives, from all present and future claims, demands, suits, legal and administrative
proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses,
present and future ("Claim or Liability"), arising out of or in any way connected with the Site
Condition as it relates to such Phase, except (i) arising out of the willful misconduct of the
Agency or its employees, officers, agents or representatives; or (ii) if and to the extent the
Developer can demonstrate to a court of competent jurisdiction that the Agency and/or City were
the direct and proximate cause of the Site Condition which is the subject matter of the Claim or
Liability, including, without limitation, attorneys' fees; or (iii) for Agency's obligations under
Section 206.3 of the Agreement. Upon the effectiveness of the release contemplated by this
Section, the parties acknowledge that the Agency's ownership would not be the direct and/or
proximate cause of any Site Condition if such Site Condition was in existence at the time of the
Agency's acquisition and continued during the Agency's ownership. In the event that Developer
objects to the Environmental Condition as described above, Developer may elect (at the time it
objects to the Environmental Condition) to accept such Environmental Condition, in which event
the Agency shall reimburse Developer for its actually incurred costs of any Remedial Work
undertaken by Developer to remediate the disapproved Environmental Condition; provided,
however, that the maximum amount of such reimbursement shall be equal to the portion of the
Remedial Work Expenditure Cap not previously expended pursuant to Section 206.3 of the
Agreement. In the event of such election, Developer shall submit to Agency a description of the
Remedial Work performed, together with copies of invoices and/or such other evidence as
reasonably necessary to substantiate such costs and expenses, and Agency shall reimburse
Developer within ten (10) days of its receipt of such materials, subject to the cap set forth
hereinabove. If Developer does not elect to accept such Environmental Condition in its notice
objecting to such Environmental Conditions, Agency may, within thirty (30) days of such written
objection, elect in writing to either remediate the Environmental Condition to the extent required
to satisfy Developer's objection or terminate this Agreement as to the applicable portion of the
Site (but not as to any other Phase of the Site which has closed prior to such termination), in
which case Developer shall reconvey the applicable portion of the Site to the Agency and neither
party shall have any rights or obligations with respect to the other in connection with such
D O C S O G 1400673 v 141200272-0001
ATTACHMENT NO. 3-3
80A-347
portion of the Site. Notwithstanding the foregoing, the termination of this Agreement pursuant
to this Section 4 with respect to any Phase will not result in the termination of the Agreement
with respect to any other portion of the Site already Conveyed to the Developer.
The Developer acknowledges that it is aware of and familiar with the provisions
of Section 1542 of the California Civil Code which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Developer waives and relinquishes all rights and benefits which it may have
under Section 1542 of the California Civil Code.
5 Upon the Closing of any Phase, the Developer shall take all reasonable
precautions to prevent the release into the environment of any Hazardous Materials in violation
of law which are located in, on or under the portion of the Site associated with the Agency
Parcels. Such precautions shall include compliance with all Governmental Requirements with
respect to Hazardous Materials. In addition, the Developer shall install and utilize such
equipment and implement and adhere to such procedures as are consistent with commercially
reasonable standards as respects the disclosure, storage, use, removal and disposal of Hazardous
Materials.
6. Following delivery and recordation of this Grant Deed, the Developer shall notify
the Agency, and provide to the Agency a copy or copies, of all environmental permits,
disclosures, applications, entitlements or inquiries relating to the portion of the Agency Parcels,
including notices of violation, notices to comply, citations, inquiries, clean-up or abatement
orders, cease and desist orders, reports filed pursuant to self-reporting requirements and reports
filed or applications made pursuant to any Governmental Requirement relating to Hazardous
Materials and underground tanks. The Developer shall report to the Agency, as soon as possible
after each incident, any unusual or potentially important incidents with respect to the
Environmental Condition of the portion of the Site included within the Agency Parcels.
In the event of a release of any Hazardous Materials into the environment in
violation of law, the Developer shall, as soon as possible after the release, furnish to the Agency
a copy of any and all reports relating thereto and copies of all correspondence with governmental
agencies relating to the release. Upon request, the Developer shall furnish to the Agency a copy
or copies of any and all other environmental entitlements or inquiries relating to or affecting the
Agency Parcels including, but not limited to, all permit applications, permits and reports
including, without limitation, those reports and other matters which may be characterized as
confidential.
7. Upon the Closing, Developer agrees to indemnify, defend and hold Agency
harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability,
deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorney's
fees), resulting from, arising out of, or based upon the Site Condition, including without
DOCSOCl140067M41200272-0001
ATTACHMENT NO. 3-4
80A-348
limitation (i) the release, use, generation, discharge, storage or disposal by Developer or by any
individual or entity for which Developer bears the legal liability including, but not limited to,
officers, agents, employees or contractors of Developer (collectively, the "Developer Parties") of
any Hazardous Materials in violation of Environmental Laws during the period of the
Developer's ownership of the applicable Phase of the Site, on, under, in or about, or the
transportation of any such Hazardous Materials to or from, the Phase of the Site by Developer or
any of Developer Parties during the period of the Developer's ownership of the Phase of the Site,
and/or (ii) the violation, or alleged violation, by Developer or any of Developer Parties of any
Environmental Laws relating to the use, generation, release, discharge, storage, disposal or
transportation of Hazardous Materials on, under, in or about, to or from, the Site during the
period of the Developer's ownership of the applicable Phase of the Site. This indemnity shall
include, without limitation, any damage, liability, fine, penalty, cost or expense arising from or
out of any claim, action, suit, or proceeding for personal injury (including sickness, disease or
death), tangible or intangible property damage, compensation for lost wages, business income,
profits or other economic loss, damage to the natural resource or the environment, nuisance,
contamination, leak, spill, release or other adverse effect on the environment with respect to the
applicable Phase of the Site.
8. Developer shall indemnify, defend and hold harmless Agency and City,
their respective officers, agents, employees and volunteers from and against any and all loss or
damage, expenses, injuries, death to any person, damage to real or personal property, claim,
demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or proceeding of
any kind arising out of Developer's actions and obligations pursuant to this Agreement,
Developer's implementation of this Agreement, Developer's securing of financing, design
development drawings, the engineering, construction, reconstruction, structural integrity of the
Project, maintenance of Project, operation and subsequent sale of the Project, including but not
limited to:
(a) latent material defects in construction of the Project;
(b) any construction defect in the Project;
(c) personal injury, including death, of the employees, agents, officers,
and/or volunteers of Developer, Developer Parties, and/or any subcontractors, independent
contractors, partners, and/or subsidiaries or third parties in connection with the Project;
(d) property damage claims of the employees, agents, officers, and/or
volunteers of Developer, Developer Parties, and/or any subcontractors, independent contractors,
partners, and/or subsidiaries or third parties in connection with the Project;
(e) delay in construction of the Project beyond the dates set forth
herein and the Schedule of Performance and subject to force majeure; and
(f) the failure to make required real estate disclosures to subsequent
buyers of homes on Phase FS.
DOC900 1 400673v 14/200272-0001
ATTACHMENT NO. 3-5
80A-349
Developer's obligation to indemnify as set forth in this Agreement shall extend to
loss or damage, expenses, injuries, death to any person, damage to real or personal property,
claim, demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or
proceedings of any kind that are discovered or accrue, either before or after the termination of
this Agreement.
Notwithstanding the foregoing, Developer shall not be required to indemnify and
hold harmless Agency or the City for liability attributable to the active negligence of, intentional
misconduct by, or breach of this Agreement by Agency or the City or any of their boards,
officers, employees, representatives or agents.
9. Developer certifies and agrees that all persons employed or applying for
employment by it, its affiliates, subsidiaries, or holding companies, and all subcontractors,
bidders and vendors, are and will be treated equally by it without regard to, or because of race,
color, religion, ancestry, national origin, sex, sexual orientation, age, pregnancy, childbirth or
related medical condition, medical condition (cancer related) or physical or mental disability, and
in compliance with Title VII of the Civil Rights Act of 1964,42 U.S.C. Section 2000, et seq., the
Federal Equal Pay Act of 1963, 29 U.S.C. Section 206(d), the Age Discrimination in
Employment Act of 1967, 29 U.S.C. Section 621, et seg., the Immigration Reform and Control
Act of 1986, 8 U.S.C. Section 1324b, et seq., 42 U.S.C. Section 1981, the California Fair
Employment and Housing Act, Cal. Government Code Section 12900, et seq., the California
Equal Pay Law, Cal. Labor Code Section 1197.5, Cal. Government Code Section 11135, the
Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., and all other anti-
discrimination laws and regulations of the United States and the State of California as they now
exist or may hereafter be amended. The Developer shall allow representatives of the Agency
access to its employment records related to this Agreement during regular business hours to
verify compliance with these provisions when so requested by the Agency.
10. Except to the extent exempt therefrom, the Developer shall pay prior to
delinquency all ad valorem real estate taxes and assessments on each Phase of the Site
attributable to periods subsequent to Closing for such Phase, subject to the Developer's right to
contest in 8cod faith any such taxes. Following the Closing for any Phase, the Developer shall
remove or have removed any levy or attachment made on any Phase of the Site or any part
thereof, or assure the satisfaction thereof within a reasonable time. The Developer may apply for
property tax abatement from the payment of all property taxes or assessments during the period
of its ownership on any interest in or to the Site or any part thereof.
11. The Developer shall carry out the design, construction, development and
operation of the Developer Improvements in conformity with all applicable laws, including all
applicable state labor standards, City zoning and development standards, building, plumbing,
mechanical and electrical codes, and all other provisions of the City's Municipal Code, and all
applicable disabled and handicapped access requirements, including without limitation the
Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code
Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act,
Civil Code Section 51, et seq., and any other applicable Governmental Requirements.
DOCS001400673v 14/200272-0001
ATTACHMENT NO. 3-6
80A-350
12. Developer shall carry out the construction through completion of the
Project and the overall development of the Site in conformity with all applicable federal, state
and local labor laws and regulations, including, without limitation, if applicable, the
requirements to pay prevailing wages under federal law (the Davis Bacon Act, 40 U.S.C.
Section 3141, et seq., and the regulations promulgated thereunder set forth at 29 CFR Part 1
(collectively, "Davis Bacon")) and California law (Labor Code Section 1720, et seq.).
Notwithstanding the foregoing, (a) the Agency hereby acknowledges and agrees that nothing in
this Agreement (or any of the documents entered into by the Agency and the Developer in
connection with the transactions contemplated by this Agreement) is intended to impose on the
Developer, contractually or otherwise, the obligation to pay prevailing wages under federal, state
or local law, and (b) the Agency hereby represents and warrants to the Developer, its successors
and assigns, that all funds used by the Agency in connection with this Agreement and the
transactions contemplated hereby, including, without limitation, funds used and to be used by the
Agency to acquire each and every component of the Site, funds used and to be used to pay for
relocation and demolition of existing improvements on the Site, funds used and to be used to
fund the Agency Loans and funds used and to be used to fund Homebuyer Assistance Loans,
solely constitute moneys from a Low and Moderate Income Housing Fund established pursuant
to Section 33334.3 of the California Health and Safety Code, all within the meaning of
Section 1720(c)(4) of the California Labor Code. The Agency understands and agrees that the
Developer will materially rely on the foregoing warranties in its determination as to whether
prevailing wages are required pursuant to California law or Davis-Bacon. The parties
acknowledge that a financing structure utilizing certain federal and/or state funding sources and
financing scenarios not otherwise identified herein may trigger compliance with applicable state
and federal prevailing wage laws and regulations. The applicability of federal, state and local
prevailing wage laws will be determined based upon the final financing structure and sources of
funding of the Project, as approved by the Agency Executive Director.
The Developer shall be solely responsible, expressly or impliedly and legally and
financially, for determining and effectuating compliance with all applicable federal, state and
local public works requirements, prevailing wage laws, labor laws and standards, and, except as
provided above, neither the Agency nor City makes any representation, either legally and/or
financially, as to the applicability or non-applicability of any federal, state and local laws to the
Project, either onsite or offshe. The Developer expressly, knowingly and voluntarily
acknowledges and agrees that neither the Agency nor City have previously represented to the
Developer or to any representative, agent or Affiliate of Developer, or any contractor(s) or any
subcontractor(s) for the construction or development of the Project, in writing or otherwise, in a
call for bids or otherwise, that the work and construction undertaken pursuant to this Agreement
is (or is not) a "public work," as defined in Section 1720 of the Labor Code or under Davis
Bacon.
The Developer knowingly and voluntarily agrees that the Developer shall have
the obligation to provide any and all disclosures or identifications as required by Labor Code
Section 1781 and/or by Davis Bacon, as the same may be amended from time to time, or any
other similar law or regulation. If and only if the representation and warranty provided by the
Agency to the Developer in this Section 12 remains true, correct and complete in every respect,
the Developer shall Indemnify, protect, pay for, defend and hold harmless the Agency, the City
and their respective officers, employees, agents and representatives from and against any and all
DOC900 I400673v 141200272.0001
ATTACHMENT NO. 3-7
80A-351
loss, liability, damage, claim, cost, expense and/or "increased costs" (including reasonable
attorneys fees, court and litigation costs, and fees of expert witnesses) which, in connection with
the development, construction (as defined by applicable law) and/or operation of the Project,
including, without limitation, any and all public works (as defined by applicable law), results or
arises in any way from any of the following: (1) the noncompliance by the Developer with any
applicable local, state and/or federal law or regulation, including, without limitation, any
applicable federal and/or state labor laws or regulations (including, without limitation, if
applicable, the requirement to pay state and/or federal prevailing wages); (ii) the implementation
of Section 1781 of the Labor Code and/or of Davis Bacon, as the same may be amended from
time to time, or any other similar law or regulation; and/or (iii) failure by the Developer to
provide any required disclosure or identification as required by Labor Code Section 1781 and/or
by Davis Bacon, as the same may be amended from time to time, or any other similar law or
regulation. If and only if the representation and warranty provided by the Agency to the
Developer in this Section 12 remains true, correct and complete in every respect, it is agreed by
the parties that, in connection with the development and construction (as defined by applicable
law or regulation) of the Project, including, without limitation, any and all public works (as
defined by applicable law or regulation), the Developer shall bear all risks of payment or non-
payment of prevailing wages under applicable federal, state and local law or regulation and/or
the implementation of Labor Code Section 1781 and/or by Davis Bacon, as the same may be
amended from time to time, and/or any other similar law or regulation. "Increased costs," as
used in this Section 12, shall have the meaning ascribed to it in Labor Code Section 1781, as the
same may be amended from time to time. The foregoing indemnity shall survive termination of
this Agreement and shall continue after completion of the construction and development of the
Project by the Developer.
13. Following delivery and recordation of this Grant Deed and during the
construction, the Developer shall use all reasonable efforts to not allow to be placed on the
Agency Parcel or any part thereof any lien or stop notice. If a claim of a lien or stop notice is
given or recorded affecting the Agency parcel or the Developer Improvements or any portion
thereof by reason of Developer's predevelopment, development and/or construction activity, the
Developer shall within thirty (30) days of such recording or service or within five (5) days of the
Agency's demand whichever last occurs:
(a) pay and discharge the same; or
(b) affect the release thereof by recording and delivering to the
Agency a surety bond in sufficient form and amount, or otherwise; or
(c) provide the Agency with other assurance which the Agency deems,
in its reasonable discretion, to be satisfactory for the payment of such lien or bonded stop notice
and for the full and continuous protection of Agency from the effect of such lien or bonded stop
notice.
The covenants established in this Grant Deed shall, without regard to technical
classification and designation, be binding for the benefit and in favor of Agency and its
successors and assigns, and shall remain in effect in perpetuity.
DOCSOG 1400673v 141200272-0001
ATTACRMENT NO. 3-8
80A-352
[Signature block begins on follow page.]
DOCSOC11400673 v 142OD272-0001
ATTACHMENT NO. 3-9
80A-353
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, a public body,
corporate and politic
By:
ATTEST:
Maria D. Huizar, Clerk of the Council
APPROVED AS TO FORM:
Stradling Yocca Carlson & Rauth,
Agency Special Counsel
Cynthia J. Nelson
Executive Director
[Signature block continues on next page.]
DOCSOCA 400673Y 14/200272-0001
ATTACHMENT NO. 3-10
80A-354
DEVELOPER:
SANTA ANA STATION DISTRICT, LLC,
a California limited liability company
By: The Related Companies of California, LLC,
a California limited liability company,
its member
By:
William A. Witte, President
By: Griffin Realty Corporation, a California
corporation, its member
By:
Roger N. Torriero, President
DOCSOC/f 400673v1 4120027 2-000 1
ATTACHMENT NO. 3-11
80A-355
EXIIIBIT A
DOCSOG 1400673v 14120027 2. 0001
LEGAL DESCRIPTION OF SITE
EXHIBIT A TO ATTACHMENT NO.3
80A-356
STATE OF CALIFORNIA )
ss.
COUNTY OF }
On before me, Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ate
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 sic ature(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 of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
? Individual
? Corporate Officer
Tidc(s)
? Panner(s) ? Limited
? General
? Attorney-In-Fact
? Trustee(s)
? Guardian/Conservator
? Other:
Signer is representing:
Name Of Person(s) Or Entity(in)
DESCRIPTION OF ATTACHED DOCUMENT
Title Or Type Of Document
Number Of Pages
Datc OFDocumcm
Signet(s) Othcr Than Named Above
DOCSOG I400673v 141200272-0001
80A-357
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, , Notary Public,
(Print Name of 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 of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
? Individual
? Corporate Officer
Title(s)
? Partner(s)
? Limited
? General
? Attorney-In-Fact
? Trustee(s)
? Guardian/Conservator
? Other:
Signer is representing:
Namc Of Person(s) Or Emity(ics)
DESCRIPTION OF ATTACHED DOCUMENT
Tide Or Type Of Document
Number Of Pages
Due Of Documemu
Signer(s) Other Than Named Abow
DOCSOCJ 1400673 v 141200272-0001
80A-358
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80A-359
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ATTACIBIENT NO. 4-3
80A-361
ATTACHMENT NO.5
SCOPE OF DEVELOPMENT
PHASE FS:
Proiect Description
Phase FS consists of 32 for-sale single family homes including a combination of attached row
homes and single family detached homes. The development will be constructed on 2.20 acres on
six scattered sites identified on the Site Map as "Lot A," "Lot B," "Lot C," Lot D," "Lot E," and
"Lot F." One unit on each of Lots A-F will be reserved to be affordable to a Moderate Income
homebuyer. The Moderate Income units will be deed restricted for affordability to qualified
homebuyers.
Phase FS is designed as 2 story row homes using at-grade wood frame construction with all
parking provided on site in detached garage structures and 2 story single family detached homes
using at-grade wood frame construction with all parking provided on site in detached garage
structures. Parking is provided to satisfy requirements of the Transit Zoning Code.
Additional Properties
911 Brown, 609, 604, and 602 E. Fifth, and 409 and 411 Minter have been identified as
Additional Properties with respect to Phase FS. Should the Agency acquire or gain control of
any or all of these parcels within the timeframe contemplated by the Agreement, development
would be expanded to include up to an additional 7 residential units (including code required
parking) on by expanding the Phase FS design concept to the Additional Properties.
Signs
All signage on the premises shall be designed to meet applicable zoning codes.
Landscaping
Project landscaping shall be designed to maximize opportunities for on-site storm water
detention in areas not utilized for buildings, driveways and parking. Landscape elements may
include planters, terraces, trees, decorative walls, screenings and paving elements. Planted areas
will be equipped with permanent water sprinkler systems to ensure proper maintenance. In
addition to landscaping, common open space is to include amenities such as barbeques, benches
and/or enhanced paving, where physically feasible. Final landscape plan is subject to Agency
review and approval.
DOCSOCI1400673 v 141200272-0001
ATTACHMENT NO. 5-1
80A-362
Utilities/Public Improvements
Developer shall be responsible for utility relocation or installation on the premises and hookups
to sewers, drains, water and gas distribution lines, electric, telephone and CATV lines, and for
hookup to all other public utility lines. Phase FS will include curb, gutter and sidewalk
replacement around the periphery of the project site where needed and all necessary dedications
and improvements to establish 17" x 17" comer cutoffs and wheelchair ramps at street
intersections. Phase FS shall also include installation of any needed water laterals as well as
sewer improvements as required by the Land Use Approvals.
Sustainabilitv
Phase FS shall be designed to achieve a Certified LEED level of design and construction as
established by the US Green Building Council LEED for Homes program.
The LEED for Home program will insure: Indoor Environmental Quality - the homes are
designed to maximize fresh air indoors and minimize exposure to toxins and pollutants; Energy
Efficiency - the homes will use less energy through the life of a house; Water Efficiency -
homes will use innovative strategies to reduce a home's water use and to find creative ways to
reuse water; Site Selection - the homes are close to schools, shopping, work and transit; Site
Development - homes will avoid destructive construction practices and have landscaping and
other elements that protect the land where the home sits; Materials Selection - homes will use
responsibly obtained materials everywhere possible; Residents' Awareness - homes will stands
as an example to the community of a well-built home and encourages others to live the same;
and Innovation - innovations will be used to increase a home's performance, taking into account
local and regional needs and promoting durability for a long-lasting, comfortable home.
Included Features
• Stainless steel under-counter kitchen sink
• Tile kitchen countertops
Kitchen • Delta faucet or equal
• Phone line
• 113 hp garbage disposal
Appliances • Whirlpool Stainless Steel/Black package
DOCS00 140067304/200272-0001
ATTACHMENT NO. 5-2
80A-363
• Standard HVAC system
• Schlage interior chrome hardware or equal
Throughout ' Dual glazed Low-E windows
• Standard craftsmen style maple cabinets throughout or equal
• 12x12 tile at entry
• Energy-efficient water heater
Garage / Exterior Rain gutters at front
• Standard garage door openers with remotes
Family Room Phone /data & cable lines
Secondary Bedrooms • Phone /data & cable lines
Bath Fiberglass tub/shower combo
• Culture marble in vanity
DOCSOO 1400673 v 141200272-0001
ATTACHMENT NO. 5-3
80A-364
PHASE R-1:
Project Deserintion
Phase R-1 consists of 74 multi-family residential units designed to provide affordable rental
housing for families, with one unit reserved for a full-time, on-site property manager. The
development will be constructed on approximately 2.44 acres on the block bounded by Santa
Ana Boulevard, Lacy Street, Sixth Street, and Minter Street. All units in Phase R-I will have
long term affordability covenants restricting tenancy to qualifying households.
In addition to the residential units, the project includes on-site management offices, interior
resident community space and ground floor retail on the corner of Lacy and Sixth Streets. A
portion of the community space may be made available for child care facilities consistent with
Section 305.3 of the Agreement.
The project is designed with an interior, at-grade parking podium that is wrapped with two-story
townhomes along the majority of the street frontage. Additional townhome units are arranged
atop the podium around interior courtyard spaces.
The project will include 23 3-Bedroom and 51 2-Bedroom units. Residential parking will be
located within the at-grade podium. Guest and retail parking is provided on site at grade along
Sixth Street. All parking is provided on site in ratios that satisfy the requirements of the Transit
Zoning Code.
Segura Parcels/Additional Property
The Segura Parcels have been included in the Phase R-1 Conceptual Site Plan. The only
Additional Property in Phase R-1 is identified as 607 E. Sixth Street. Should the Agency acquire
this parcel within the timeframe contemplated by the Agreement, the parking and site
landscaping may be reconfigured to integrate such Additional Property into the Site Plan.
Overall development program and parking ratios would not be affected by this reconfiguration.
Signs
All signage on the premises shall be designed to meet applicable zoning codes.
Landscaping
Project landscaping shall be designed to maximize opportunities for on-site storm water
detention in areas not utilized for buildings, driveways and parking. Landscape elements may
include planters, terraces, trees, decorative walls, screenings, barbeques, benches, and paving
elements. Planted areas will be equipped with permanent water sprinkler systems. Final
landscape/outdoor amenity plan will be subject to Agency review and approval.
ATTACHMENT NO. 5-4
80A-365
Utilities/Public Imurovements
Phase R-1 will include utility connections and hookups to sewers, drains, water and gas
distribution lines, electric and telephone lines. The project will include curb, gutter and sidewalk
replacement around the periphery of the project site where needed and all necessary dedications
and improvements to establish 17" x 17" comer cutoffs and wheelchair ramps at street
intersections. Phase R-1 may also include sewer, street, and water main improvements as
required by project Land Use Entitlements.
Amenities
Phase R-I will have an on-site resident manager and property management offices on site. It
will include a community room and on-site laundry facilities. Multiple courtyard areas will be
provided as common outdoor space atop the parking podium. Ground floor units will have
stoop/porch areas oriented to the street.
Public Art -- See Section 305.2.
Child Care Facilities -- See Section 305.3.
Retail Spaces -- See Section 305.4.
Sustainability
Phase R-1 will include several key sustainability features to ensure efficient use of natural
resources. These may include use of water efficient fixtures in bathrooms and kitchens, use of
low or no-VOC primers, sealants and adhesives, use of natural ventilation where feasible and/or
use of recycled building materials.
ATTACHMENT NO. 5-5
DOCSOG1400673v [4/100272-0001
80A-366
PHASE R-2:
Proiect Description
Phase R-2 consists of 38 multi-family residential units designed to provide affordable rental
housing for families, with one unit reserved for a full-time, on-site property manager. The unit
mix includes 12 3-Bedroom and 26 2-Bedroom units.
Phase R-2 will be constructed on approximately 1.88 acres on three scattered sites identified on
the Site Map as "Lot 2" "Lot 3" and "Lot 4." All units in Phase R-2 will have long term
affordability covenants restricting tenancy to qualifying households.
Phase R-2 is designed as at-grade wood frame construction including a mix of two-story attached
townhomes and single story flats. Parking is provided in a combination of detached and "tuck
under" garages. All parking is provided on site in ratios that satisfy the requirements of the
Transit Zoning Code.
Additional Property
812 E. Santa Ana is a property adjacent to the "Lot 4" parcel which has been identified as an
Additional Property with respect to Phase R-2. Should the Agency acquire this parcel within the
timeframe contemplated by the Agreement, Phase R-2 would be expanded to include up to an
additional 4 residential units (including code required parking) on the "Lot 4" parcel by
expanding the Phase R-2 design concept to the Additional Property.
Signs
All signage on the premises shall be designed to meet applicable zoning codes.
Landscapine
Project landscaping shall be designed to maximize opportunities for on-site stormwater detention
in areas not utilized for buildings, driveways and parking. Landscape elements may include
planters, terraces, trees, decorative walls, screenings, barbeques, benches, and paving elements.
Planted areas will be equipped with permanent water sprinkler systems to ensure proper
maintenance. Final landscapeloutdoor amenity plan will be subject to Agency review and
approval.
Utilities/Public Improvements
Project will include utility connections and hookups to sewers, drains, water and gas distribution
lines, electric and telephone lines. The project will include curb, gutter and sidewalk
replacement around the periphery of the project site where needed and all necessary dedications
and improvements to establish 17" x 17" comer cutoffs and wheelchair ramps at street
intersections. Phase R-2 may also include sewer, street, and water main improvements as
required by project Land Use Approvals.
D OCSOG 1400673v 14!200272-0001
ATTACHMENT NO. 5-6
80A-367
Amenities
Phase R-2 will contain three on-site laundry facilities (one for each of three scattered sites).
Phase R-2 residents will have access to the community room and any programming and services
provided in Phase R-1. Units will have individual porches/patios for private open space as well
as landscaped and hardscaped common open space areas on each of the three sites. Public art
will be provided either on site or off site consistent with the terms in the Agreement.
Sustainability
The project will include several key sustainability features to ensure efficient use of natural
resources. These may include use of water efficient fixtures in bathrooms and kitchens, use of
low or no-VOC primers, sealants and adhesives, use of natural ventilation where feasible and/or
use of recycled building materials.
DOCSOG 1400677v 14/200272-0001
ATTACHMENT NO. 5-7
80A-368
ATTACHMENT NO.6
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
Attention: )
This document is exempt from the
payment of a recording fee pursuant to
Government Code Section 27383.
RELEASE OF CONSTRUCTION COVENANTS
This RELEASE OF
20
CITY OF SANTA ANA, .
below.
CONSTRUCTION COVENANTS (the "Release') is made as of
by the COMMUNITY REDEVELOPMENT AGENCY OF THE
i public body corporate and politic (the "Agency"), in favor of
(the "Developer"), as of the date set forth
RECITALS
A. The Agency and the Developer have entered into that certain Disposition and
Development Agreement (the "DDA") dated , 2010, concerning the
redevelopment of certain real property situated in the City of Santa Ana, California as more fully
described in Exhibit "A" attached hereto and made a part hereof.
B. As referenced in Section 313 of the DDA, the Agency is required to furnish the
Developer or its successors with a Release of Construction Covenants upon completion of
construction of the Developer Improvements (as defined in Section 100 of the DDA), which Release
is required to he in such form as to permit it to be recorded in the Recorder's office of Orange
County. This Release is conclusive determination of satisfactory completion of the construction and
development required by the DDA and the Grant Deed.
C. The Agency has conclusively determined that such construction and development has
been satisfactorily completed.
NOW, THEREFORE, the Agency hereby certifies as follows:
1. The Developer Improvements to be constructed by the Developer with respect to
Phase have been fully and satisfactorily completed in conformance with the DDA.
2. Nothing contained in this instrument shall modify in any other way any other
provisions of the DDA.
DO CSOC/1400673v 14/200272-0001
ATTACHMENT NO. 6-1
80A-369
above.
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, a public body,
corporate and politic
Cynthia J. Nelson
Executive Director
ATTEST:
Maria D. Huizar, Clerk of the Council
APPROVED AS TO FORM:
Stradling Yocca Carlson & Rauch,
Agency Special Counsel
EXHIBrr 6-2
DOCSOO1400673v14/200272-000 t
IN WITNESS WHEREOF, the Agency has executed this Release as of the date set forth
80A-370
EXHIBIT A
DOCSOGI400673v 14206272-00DI
LEGAL DESCRIPTION OF SITE
EXHIBIT A TO ATTACHMENT NO. 6
80A-371
STATE OF CALIFORNIA
COUNTY OF
On
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.
ss.
before me, , Notary Public,
(Print Name of Notary Public)
WITNESS my hand and official seal.
Signamm of Nauuy Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
? Individual
? Corporate Officer
? Partner(s)
Tick(s)
? Limited
? Cenral
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other:
OF ATTACHED DOCUMENT
Title Or Type Of Document
Number Of Pages
Signer is representing:
Name Of Person(s) Or EnGly(ies)
Dale Of Documems
Signer(s) Other Than Named Above
DOCSOC/1400673v 141200272-0001
80A-372
ATTACHMENT NO.7
RECORDING REQUESTED BY, )
AND WHEN RECORDED MAEL TO: )
Community Redevelopment Agency )
of the City of Santa Ana )
20 Civic Center Plaza )
Santa Ana, California 92702 )
Attn: Executive Director )
This document is exempt from payment of a
recording fee pursuant to Government Code
Sections 27383 and 6103-
REGULATORY AGREEMENT
THIS REGULATORY AGREEMENT
2010, by and between
AGENCY OF THE CITY OF SANTA ANA,
"Agency"), and
(the "Agreement") is entered into as of
the COMMUNITY REDEVELOPMENT
a public body, corporate and politic (the
(the "Developer").
RECITALS
A. Developer has acquired from the Agency certain real property located within the
City of Santa Ana, as particularly described in the Legal Description attached hereto as
Exhibit A, which is incorporated herein by reference (the "Site").
B. Developer desires to construct a multifamily affordable housing development,
which will consist of a minimum of (,,,-,) units (the "Housing Project"), and to make
available and rent the apartment units within the Housing Project (the "Housing Units') to
extremely and very low income persons at an affordable rent. The Housing Project is sometimes
referred to herein as the "Project."
C. Developer and Agency have entered into a Disposition and Development
Agreement (the "DDA") dated as of 2010. Subject to the terms and
conditions therein, the Developer has agreed to acquire the Site and construct and operate the
Housing Project, the Agency has agreed to provide financial assistance to Developer, and the
Developer has agreed to make available and lease all of the Housing Units to Extremely and
Very Low Income Households, all at an Affordable Rent (as those terms are defined herein).
The execution and recording of this Agreement is a requirement of the DDA.
NOW, THEREFORE, the parties hereto agree as follows:
1. Number of Affordable Rental Units. Developer covenants and agrees to make
available, restrict occupancy to, and rent the Rental Units at an affordable rent pursuant to
Section 5 below, as follows:
ATTACHMENT NO. 7-1
DO CS 001400673 v 14200272-0001
80A-373
(a) (-) of the two (2) bedroom Rental Units in Phase R-1 to
Very Low Income Households at an Affordable Rent; twenty (20) of the two (2) bedroom Rental
Units in Phase R-2 to Very Low Income Households at an Affordable Rent;
(b) (_-) of the two (2) bedroom Rental Units in Phase R-1 to
Extremely Low Income Households at an Affordable Rent; five (5) of the two (2) bedroom
Rental Units in Phase R-2 to Extremely Low Income Households at an Affordable Rent;
(c) (_) of the three (3) bedroom Rental Units in Phase R-1 to
Very Low Income Households at an Affordable Rent; nine (9) of the three (3) bedroom Rental
Units in Phase R-2 to Very Low Income Households at an Affordable Rent; and
(d) (_) of the three (3) bedroom Rental Units in Phase R-1 to
Extremely Low Income Households at an Affordable Rent; three (3) of the three (3) bedroom
Rental Units in Phase R-2 to Extremely Low Income Households at an Affordable Rent.
2. Duration of Affordability Requirements. The Rental Units shall be subject to
the requirements of this Agreement for the later of (i) fifty-five (55) years from the date of the
City's issuance of a certificate of occupancy for the applicable Phase or (ii) repayment in full of
the Promissory Note (as defined in the DDA).
3. Selection of Tenants. The Developer shall be responsible for the selection of
tenants for the Rental Units in compliance with lawful and reasonable criteria, as set forth in this
Agreement and the Management Plan which is required to be submitted and approved by the
Agency pursuant to Section 9.
4. Household Income Requirements. Following the initial lease-up of the Rental
Units in each of Phase R-1 and Phase R-2, and annually thereafter, the Developer shall submit to
the Agency, at the Developer's expense, a summary of the income, household size and rent
payable by each of the tenants of the Rental Units of such Phase. At the Agency's request, the
Developer shall also provide to the Agency completed income computation and certification
forms, in a form reasonably acceptable to the Agency, for any such tenant or tenants. The
Developer shall obtain, or shall cause to be obtained by the Property Manager, a certification
from each household leasing a Rental Unit demonstrating that such household is a Very Low
Income Household or Extremely Low Income Household, as applicable, and meets the eligibility
requirements established for the Rental Unit. The Developer shall verify, or shall cause to be
verified by the Property Manager, the income certification of the household.
5. Affordable Rent. The maximum Monthly Rent chargeable for the Rental Units
shall be annually determined in accordance with the following requirements. The Monthly Rent
for the Rental Units to be rented to Extremely Low Income Households shall not exceed the
requirements of TCAC and the Monthly Rent for the Rental Units to be rented to Very Low
Income Households shall not exceed the more restrictive of (i) TCAC or (ii) the amount set forth
in Section 50053(b)(2) of the California Health and Safety Code.
For purposes of this Agreement, "Monthly Rent" means the total of monthly
payments charged to and paid by tenants or by any other source (e.g. Section 8 vouchers) for
(a) use and occupancy of each Rental Unit and land and facilities associated therewith, (b) any
DOCSOG 1400673v 14/200272-000 t
ATTACHMENT NO. 7-2
80A-374
separately charged fees or service charges assessed by the 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
service, and (d) possessory interest, taxes or other fees or charges assessed for use of the land
and facilities associated therewith by a public or private entity other than the Developer. 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. "Monthly Rent" does not include optional payments by tenants
for optional services provided by the Developer or the Property Manager.
6. Occupancy Limits. The maximum occupancy of the Rental Units shall not
exceed more than such number of persons as is equal to the sum of the number of bedrooms in
the unit, multiplied by two (2), plus one (1). For the two (2) bedroom units, the maximum
occupancy shall not exceed five (5) persons. For the three (3) bedroom units, the maximum
occupancy shall not exceed seven (7) persons.
7. Marketing Program. The Developer shall prepare and obtain Agency Executive
Director's approval, which approval shall not be unreasonably withheld, of a marketing program
for the leasing of the Rental Units within each Phase (the "Marketing Program"). The leasing of
the Rental Units shall be marketed in accordance with the approved Marketing Program as the
same may be amended from time to time with Agency Executive Director's prior written
approval, which approval shall not unreasonably be withheld. The Developer shall provide the
Agency with periodic reports with respect to the leasing of the Rental Units. The Marketing
Program shall contain a Lottery and Wait List/Preference List for initial lease-up only. The
Developer shall be responsible to organize, schedule and coordinate a lottery drawing to select
potential tenants for the Rental Units for initial lease-up only, which shall be open to the public.
The lottery shall take place not less than 90 days prior to completion of the applicable Phase of
the Rental Units. Preference in the lottery, so long as not inconsistent with federal and State law
(including, without limitation, all fair housing laws, rules and regulations), shall be given as
follows:
(1) Any persons who have been displaced from their residences due to
programs or projects implemented by the Agency within the Station District; and
(2) Other households who live or work in Santa Ana.
Subject to all fair housing laws, rules, and regulations, all categories shall receive
preference in the order listed. The requirements of this Section 401.7 shall only apply to the
extent that the number of applicants for Rental Units exceeds the number of Rental Units
available for lease upon initial lease-up.
For the purpose of the lottery drawing, the lottery will be divided by those who
have claimed a preference and those who do not. All lottery forms will be drawn and numbered
to create a complete list of alternate applications.
The Developer shall provide written notification to lottery participants informing
them of the results and their priority number. This priority number represents the order with
ATTACHMENT NO. 7-3
DOCS00 1400673v 14800272-0001
80A-375
which prospective tenants will be reviewed for final determination of eligibility. If a household
who was selected claimed a preference but could not verify such preference, then that participant
will be deemed ineligible and the next selected participant will be notified.
8. Maintenance. The Developer shall maintain each Phase of the Rental Portion of
the Project, or cause same to be maintained in a decent, safe and sanitary manner, and in
accordance with the standard of maintenance of affordable housing apartment units within
Orange County, California. If at any time the Developer fails to maintain each Phase of the
Rental Portion of the Project in accordance with this Agreement and such condition is not
corrected within five (5) days after written notice from the Agency with respect to graffiti,
debris, and waste material, or thirty (30) days after written notice from the Agency with respect
to general maintenance, landscaping and building improvements, then the Agency, in addition to
whatever remedy it may have at law or in equity, shall have the right to enter upon such Phase
and perform all acts and work necessary to protect, maintain, and preserve the such Phase, and to
attach a lien upon such Phase, or to assess such Phase in the amount of the expenditures arising
from such acts and work of protection, maintenance, and preservation by the Agency and/or
costs of such cure, including a reasonable administrative charge, which amount shall be promptly
paid by the Developer to the Agency upon demand.
9. Management Plan; Property Management. For each Phase of the Rental
Portion of the Project, the Developer shall submit for the reasonable approval of the Agency a
"Management Plan" which sets forth in detail the Developer's property management duties, a
tenant selection process and crime prevention program, the procedures for the collection of rent,
the procedures for eviction of tenants, the rules and regulations of the Rental Portion of the
Project and manner of enforcement, a standard lease form, an Operating Budget, the identity of
the manager of the Rental Portion of the Project (the "Property Manager"), and other matters
relevant to the management of the Rental Portion of the Project. The management of the Rental
Portion of the Project shall be in compliance with the Management Plan which is approved by
the Agency. The Agency hereby approves Related Management Company, L.P. as the Property
Manager for each Phase of the Rental Portion.
If the Agency determines that the performance of the Property Manager as to a
particular Phase is deficient based upon the standards set forth in the Management Plan and in
this Agreement, the Agency shall provide notice to the Developer of such deficiencies, and the
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 501, the Agency shall have
the right to require the Developer to immediately remove and replace the Property Manager for
such Phase with another property manager or property management company which is
reasonably acceptable to the Agency, which is not related to or affiliated with the Developer, 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 applicable Phase of
the Rental Portion of the Project.
10. Monitoring and Recordkeeping. Throughout the Affordability Period,
Developer shall comply with all applicable recordkeeping and monitoring requirements set forth
in Health and Safety Code Section 33418 and shall annually complete and submit to the Agency
a report, prior to January 30th of each year, for each Phase of the Rental Portion which includes
DOCSMI400673v 14120027 2-0001
ATTACHMENT NO. 7-4
80A-376
the name, address, income and age of each occupant of a Rental Unit, the bedroom count and
Monthly Rent for such Rental Unit. The Agency agrees that the Developer may submit reporting
forms prepared and submitted in connection with any other similar reporting requirement,
including reports prepared for tax credit compliance, to the extent those forms contain the
information required hereunder. Representatives of the Agency shall be entitled to enter each
Phase of the Rental Portion of the Project, upon at least seventy-two (72) hours prior written
notice, to monitor compliance with this Agreement, to inspect the records, and to conduct an
independent audit or inspection of such records. The Developer agrees to cooperate with the
Agency in making each Phase of the Rental Portion of the Project available for such inspection
or audit. The Developer agrees to maintain records in a businesslike manner, and to maintain
such records for the term of this Agreement.
11. Successors and Assigns. This Agreement shall run with the land, and all of the
terms, covenants and conditions of this Agreement shall be binding upon the Developer and the
Agency and the permitted successors and assigns of the Developer and the Agency. Whenever
the term "Developer," or "Agency" is used in this Agreement, such term shall include any other
successors and assigns as herein provided.
12. No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the Agency and its successors and assigns, and Developer and its
successors and assigns, and no other person or persons shall have any right of action hereon.
13. Partial Invalidity. If any provision of this Agreement shalt be declared invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions
hereof shall not in any way be affected or impaired.
14. Governing Law. This Agreement and the documents and other instruments
given pursuant hereto shall be construed in accordance with and be governed by the laws of the
State of California. Any references herein to particular statutes or regulations shall be deemed to
refer to successor statutes or regulations, or amendments thereto.
15. Amendment. This Agreement may not be changed orally, but only by agreement
in writing signed by Developer and the Agency.
16. Definitions. Any word, term or phrase not specifically defined in this Agreement
shall have the same meaning as ascribed to it in the DDA.
[Signature block begins on follow page.]
DOCSOC/1400b73v ] 4/200272-0001
ATTACHMENT NO. 7-5
80A-377
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of
the date and year set forth above.
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, a public body,
corporate and politic
Cynthia J. Nelson
Executive Director
ATTEST:
Maria D. Huizar, Clerk of the Council
APPROVED AS TO FORM:
Stradling Yocca Carlson & Rauth,
Agency Special Counsel
[Signature block continues on next page.]
DOCS001 400673Y 14/200272-0001
ATTACHMENT NO. 7-6
80A-378
DEVELOPER:
SANTA ANA STATION DISTRICT, LLC,
a Califonria limited liability company
By: The Related Companies of California, LLC,
a California limited liability company,
its member
By:
By.
By: Griffin Realty Corporation, a California
corporation, its member
DOCSOG1400673v 141200272-0001
William A. Witte, President
Roger N. Torriero, President
ATTACHMENT NO. 7-7
80A-379
EXHIBIT A
LEGAL DESCRIPTION OF RENTAL PORTION OF PROJECT
DOCSOC/ 1400673v14/200272-0001
EXHIBIT A TO ATTACHMENT NO.7
80A-380
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, Notary Public,
(Frio[ Name of 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 of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the, document and could prevent
fraudulent reattachment of this form,
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
? Individual
? Corporate Officer
Title(s) Tidc Or Type Of Document
? Partner(s) ? Limited
? General
? Attorney-In -Fact
? Trustee(s)
? Guardian/Conservator Number Of Pages
? Other:
Signer is representing:
Name Of Person(s) Or Emity(ics)
Dato Of Documcnu
Signer(s) Other Than Named Above
DOCSO01400673Y 14/200272.0001
80A-381
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, Notary Public,
(Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare
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 of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
? Individual
? Corporate Officer
TiLle(S) Title Or Type Of Document
? Partner(s) ? Limited
? General
? Attorney-In-Fact
? Trustee(s)
? Guardian/Conscrvator NumbcrOfPagr
? Other:
Signer is representing:
Name Of Person(s) Or Entity(ics)
Dale Of Documents
Signer(s) Other Than Namcd Above
DOCSOCI 1400673 v 141200272-0001
80A-382
ATTACHMENT NO. 8A
$1,500,000
201
PROMISSORY NOTE
(Phase FS Agency Loan)
Santa Ana, California
FOR VALUE RECEIVED, (the 'Borrower"),
promises to pay to the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
SANTA ANA, a public body, corporate and politic (the "Agency"), or order, at the Agency's
office at 20 Civic Center Plaza, Santa Ana, California 92701, or such other place as the Agency
may designate in writing, the sum of One Million Five Hundred Thousand Dollars ($1,500,000)
(the "Nate Amount"), in currency of the United States of America, which at the time of payment
is lawful for the payment of public and private debts.
1. Agreement. This Promissory Note (the "Note") is given in accordance with that
certain Disposition and Development Agreement executed by the Agency and Santa Ana Station
District, LLC, dated as of June 7, 2010 (the "Agreement"). A portion of the rights and
obligations of Santa Ana Station District, LLC under the Agreement was subsequently assigned
to Borrower. The rights and obligations of the Borrower and the Agency under this Note shall be
governed by the Agreement and by the additional terms set forth in this Note. Capitalized terms
not defined herein shall have the meaning ascribed to such term in the Agreement. In the event
of any inconsistencies between the terms of this Note and the terms of the Agreement or any
other document related to the Note Amount, the terms of this Note shall prevail.
2. Interest. The Note Amount shall bear simple interest at the rate of three percent
(3%) per annum, calculated from the latest date any amount hereunder is required to be paid.
3. Repayment of Note Amount. The Note Amount shall be payable from the
"Profit-Sharing Amount," as defined and determined herein. Borrower shall give written notice
to the Agency, not later than one hundred twenty (120) days after the sale of the last For-Sale
Unit (as defined in the Agreement), which shall include a statement of the "Net Profit; "Gross
Sales Proceeds," the "For-Sale Units Development Cost," and "For-Sale Units Development
Profit," as these terms are defined below, and a calculation of the Profit Sharing Amount.
Within thirty (30) days of its receipt of Borrower's written notice, Agency shall deliver to
Borrower written notice of its acceptance of Borrower's calculations of the Profit Sharing
Amount, or Agency's challenge of Borrower's calculations of the Profit Sharing Amount and
request for a certified audit of Profit Sharing Amount by an auditor chosen by Agency and
reasonably acceptable to Borrower, at Agency's sole cost. Borrower agrees to cooperate with
such audit, and shall be permitted to review and respond to the preliminary results of such audit
before the audit is issued in final form. If an audit is performed, the Profit Sharing Amount shall
be as determined by the results of such audit. If it is determined that a Profit Sharing Amount is
owed to the Agency, payment shall be made to the Agency no later than thirty (30) days after the
Agency's written acceptance of Borrower's calculations of the Profit Sharing Amount, or the
delivery of the final results of the audit, as applicable. In the event that the Profit Sharing
DOC S OO 1400673 v 141200272-0001
ATTACHMENT NO. 8A-1
80A-383
Amount is less than the Note Amount, upon payment in full of the Profit Sharing Amount to the
Agency the Note Amount shall be reduced to zero and shall be deemed paid in full.
4. Definitions.
"Profit Sharing Amount" shall mean twenty-five percent (25%) of the "Net Profit," if Net
Profit is a positive number.
"Net Profit" means the "Gross Sales Proceeds" of the For-Sale Units, less the "For-Sale
Units Development Cost," and less the "For-Sale Units Development Profit."
"Gross Sales Proceeds" means the sum of the base sales prices for the For-Sale Units,
plus the "Net Options and Upgrades Proceeds," as defined herein.
a. "Net Options and Upgrades Proceeds" is defined as the difference between
the price paid by the purchasers of the For-Sale Units for "Options and Upgrades" ("Gross
Options and Upgrades Proceeds"), less the "Options and Upgrades Costs" for the For-Sale Units.
b. "Options and Upgrades" means any of those fixtures and improvements to
the For-Sale Units which are not reflected in the For-Sale Units Development Cost and are in
excess of the base For-Sale Unit.
C. "Options and Upgrades Costs" is defined as the costs actually incurred by
the Borrower to pay third parties for the "Options and Upgrades" to the For-Sale Units, including
the charges paid by the Borrower to the Borrower's general contractor(s) and/or subcontractors
for the purchase and/or installation of "Options and Upgrades", and the price of "Options and
Upgrades" paid by the Borrower directly to a product manufacturer or distributor, but only if the
Borrower purchases "Options and Upgrades" products directly from a manufacturer or
distributor, and then only pays the contractors/subcontractors to install the "Options and
Upgrades" products.
"For-Sale Units Development Cost" means the total actual cost to the Borrower of
planning, designing, financing, constructing, and developing Phase FS (in accordance with the
plans and specifications to be acted upon by the Agency as provided in the Agreement) through
the issuance of the Certificate of Occupancy for each of the For-Sale Units, and the costs of
conveying the completed For-Sale Units to homebuyers. Any such costs paid to parties related
to Borrower shall be limited to the costs that would have been payable to unrelated parties for the
equivalent goods and services. The For-Sale Units Development Cost shall include, but not be
limited to, the following:
• Grading and site preparation;
• Onsite and offsite improvements paid by Borrower (other than those paid with the
proceeds of the Agency Phase FS Loan);
• Construction costs for the For-Sale Units and related improvements;
• A general contractor fee not to exceed two and one-half percent (2.5%) of all
construction costs;
• Performance and completion bond premiums;
ATTACHMENT NO. 8A-2
DOCS001400673v 14/200272-0001
80A-384
• Architectural, engineering, design and reproduction fees;
• Consulting and professional fees paid to third parties with respect to the Agreement
and the construction of Phase FS;
• Development, permit and inspection fees charged by any public agency incurred and
paid by the Borrower;
• An overhead fee payable to the Borrower which shall not exceed three percent (3%)
of the gross sales prices of the For-Sale Units and other project revenue;
• Construction loan fees and points;
• Repayment of construction loan principal, interest and contingent interest;
• Repayment of equity loans and contributions, including principal, interest and
preferred returns;
• Permanent loan fees and points payable by the Borrower;
• Other fees and costs of construction loans and equity financing;
• Property taxes, insurance costs, security costs, utility costs and maintenance expenses
incurred during the construction period;
• Homeowners' association dues payable by the Borrower;
• Sales commissions payable to the Borrower's agents and brokers (not to exceed 2%)
and cooperating buyers' agents and brokers for the sale of the For-Sale Units;
• Other reasonable and actual costs of conveying the For-Sale Units to homebuyers,
including escrow fees, title insurance fees, taxes and fees imposed with respect to the
sale of the For-Sale Units;
• Builder's warranty reserve funds not to exceed $4,400 per For-Sale Unit; and
• Any other actual costs to the Borrower of planning, designing, financing, constructing
and developing Phase FS which have not been paid by the Agency or other parties.
"For-Sale Units Development Profit" shall mean twelve percent (127o) of the sum of (i)
the total base sales prices for the For-Sale Units, plus (ii) the Gross Options and Upgrades
Proceeds for the For-Sale Units. This amount shall be paid to and/or retained by the Borrower
prior to the payment of the Profit Sharing Amount, if any, to the Agency hereunder.
For the purpose of facilitating the calculation the For-Sale Units Sales Proceeds, Gross
Options and Upgrades Proceeds, and Net Options and Upgrades Proceeds, the purchase and sale
agreement for each For-Sale Unit shall delineate the base sales price and the price charged to the
buyer for Options and Upgrades.
5. Security. This Note is secured by a Deed of Trust (the "Deed of Trust") dated as
of the same date as this Note. The Deed of Trust shall be recorded in second priority and shall
be subordinate only to the deed of trust securing Borrower's construction financing for the
Project as approved by Agency pursuant to the Agreement. The Deed of Trust shall provide for
a partial reconveyance of the Deed of Trust in connection with the sale of each individual For-
Sale Unit. Agency understands that the Deed of Trust will be fully reconveyed prior to the
payment made pursuant to Section 3 hereof.
6. Nonrecourse. Until the full reconveyance of the Deed of Trust, this Note shall
constitute a nonrecourse obligation of Borrower, and neither Borrower nor any of its members
shall have any personal liability for payment or performance of this Note. In the event of a
DOCSOG I400673v 14/200272-0001
ATTACHMENT NO. 8A-3
80A-385
default hereunder which occurs prior to the full reconveyance of the Deed of Trust, the Agency's
sole recourse shall be to proceed against the collateral described in the Deed of Trust. After the
full reconveyance of the Deed of Trust, Agency may enforce its rights hereunder in any manner
permitted by applicable law.
7. Waivers
a. Borrower expressly agrees that this Note or any payment hereunder may
be extended from time to time at the Agency's sole discretion and that the Agency may accept
security in consideration for any such extension or release any security for this Note at its sole
discretion all without in any way affecting the liability of Borrower.
b. No extension of time for payment of this Note made by agreement by the
Agency with any person now or hereafter liable for the payment of this Note shall operate to
release, discharge, modify, change or affect the original liability of Borrower under this Note,
either in whole or in part.
C. The obligations of Borrower under this Note shall be absolute and
Borrower waives any and all rights to offset, deduct or withhold any payments or charges due
under this Note for any reasons whatsoever.
d. Borrower waives presentment, demand, notice of protest and nonpayment,
notice of default or delinquency, notice of acceleration, notice of costs, expenses or leases or
interest thereon, notice of dishonor, diligence in collection or in proceeding against any of the
rights of interests in or to properties securing of this Note, and the benefit of any exemption
under any homestead exemption laws, if applicable.
e. No previous waiver and no failure or delay by Agency in acting with
respect to the terms of this Note or the Deed of Trust shall constitute a waiver of any breach,
default, or failure or condition under this Note, the Deed of Trust or the obligations secured
thereby. A waiver of any term of this Note, the Deed of Trust or of any of the obligations
secured thereby must be made in writing and shall be limited to the express written terms of such
waiver.
8. Attorneys' Fees and Costs. Borrower agrees that if any amounts due under this
Note are not paid when due, to pay in addition, all costs and expenses of collection and
reasonable attorneys' fees paid or incurred in connection with the collection or enforcement of
this Note, whether or not suit is filed.
9. Joint and Several Obligation. This Note is the joint and several obligation of all
makers, sureties, guarantors and endorsers, and shall be binding upon them and their heirs,
successors and assigns.
10. Amendments and Modifications. This Note may not be changed orally, but
only by an amendment in writing signed by Borrower and by the Agency.
11. Agency May Assign. Agency may, at its option, assign its right to receive
payment under this Note without necessity of obtaining the consent of the Borrower.
DOCSOG 1405673v 14/200272-0001
ATTACHMENT NO. 8A-4
80A-386
12. Borrower Assignment Prohibited. In no event shall Borrower assign or transfer
any portion of this Note without the prior express written consent of the Agency, which consent
shall not unreasonably be withheld, except pursuant to a transfer which is permitted or approved
pursuant to the terms of the Agreement.
13. Terms. Any terms not separately defined herein shall have the same meanings as
set forth in the Agreement.
14. Acceleration and Other Remedies. Upon: (a) the occurrence of an event of
Default as defined in the Agreement and delivery of notice and expiration of the cure period
described therein, or (b) Borrower selling, contracting to sell, giving an option to purchase,
conveying, leasing, further encumbering, mortgaging, assigning or alienating the Borrower's
interest in Phase FS (other than the sale of completed For-Sale Units to individual homebuyers or
as otherwise permitted or approved pursuant to the Agreement), whether directly or indirectly,
whether voluntarily or involuntarily or by operation of law, or any interest in Phase FS, or
suffering its title, or any interest in Phase FS to be divested, whether voluntarily or involuntarily,
without the consent of the Agency or as otherwise approved or permitted under the Agreement,
Agency may, at Agency's option, declare the outstanding principal amount of this Note, together
with the then accrued and unpaid interest thereon and other charges hereunder, and all other
sums secured by the Deed of Trust, to be due and payable immediately, and upon such
declaration, such principal and interest and other sums shall immediately become and be due and
payable without demand or notice, all as further set forth in the Deed of Trust. All costs of
collection, including, but not limited to, reasonable attorneys' fees and all expenses incurred in
connection with protection of, or realization on, the security for this Note, may be added to the
principal hereunder, and shall accrue interest as provided herein. Agency shall at all times have
the right to proceed against any portion of the security for this Note in such order and in such
manner as such Agency may consider appropriate, without waiving any rights with respect to
any of the security. Any delay or omission on the part of the Agency in exercising any right
hereunder, under the Agreement or under the Deed of Trust shall not operate as a waiver of such
right, or of any other right. No single or partial exercise of any right or remedy hereunder or
under the Agreement or any other document or agreement shall preclude other or further
exercises thereof, or the exercise of any other right or remedy. The acceptance of payment of
any sum payable hereunder, or part thereof, after the due date of such payment shall not be a
waiver of Agency's right to either require prompt payment when due of all other sums payable
hereunder or to declare an event of Default for failure to make prompt or complete payment.
15. Successors and Assigns. Whenever "Agency" is referred to in this Note, such
reference shall be deemed to include the Community Redevelopment Agency of the City of
Santa Ana and its successors and assigns, including, without limitation, any subsequent assignee
or holder of this Note. All covenants, provisions and agreements by or on behalf of Borrower,
and on behalf of any makers, endorsers, guarantors and sureties hereof which are contained
herein shall inure to the benefit of the Agency and Agency's successors and assigns.
ATTACHWNT NO. 8A-5
DOCSOC/1400673v 141200272-0001
80A-387
16. Miseellaneous. Time is of the essence hereof. This Note shall be governed by
and construed under the laws of the State of California except to the extent Federal laws preempt
the laws of the State of California. Borrower irrevocably and unconditionally submits to the
jurisdiction of the Superior Court of the State of California for the County of Orange in
connection with any legal action or proceeding arising out of or relating to this Note. Borrower
also waives any objection regarding personal or in rem jurisdiction or venue.
BORROWER:
DOCSOCI 140G673v 141200272-0001
ATTACHMENT NO. 8A-6
80A-388
ATTACHMENT NO. 8B
PROMISSORY NOTE
(Phase R-1 Agency Loan and Phase R-2 Agency Loan)
1 2010 Santa Ana, California
FOR VALUE RECEIVED, (the "Borrower"),
promises to pay to the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
SANTA ANA, a public body, corporate and politic (the "Agency"), or order, at the Agency's
office at 20 Civic Center Plaza, Santa Ana, California 92701, or such other place as the Agency
may designate in writing, the sum of Dollars
($ 1 (the "Note Amount"), in currency of the United States of America, which at the
time of payment is lawful for the payment of public and private debts.
1. Agreement. This Promissory Note (the "Note") is given in accordance with that
certain Disposition and Development Agreement executed by the Agency and Borrower, dated
as of , 2010 (the "Agreement"). The rights and obligations of the
Borrower and the Agency under this Note shall be governed by the Agreement and by the
additional terms set forth in this Note. Capitalized terms not defined herein shall have the
me3aning ascribed to such term in the Agreement. In the event of any inconsistencies between
the terms of this Note and the terms of the Agreement or any other document related to the Note
Amount, the terms of this Note shall prevail.
2. Interest. The Note Amount shall bear simple interest at the rate of one percent
(I%) per annum, from the date hereof.
3. Repayment of Note Amount. The Note Amount shall be paid by the Borrower's
annual payment to the Agency of an amount equal to fifty Percent (50%) of the Residual
Receipts (as defined below) from operation of Phase R- - of the Rental Portion of the Project (as
defined in the Agreement), as determined by a residual receipts calculation from the operation of
Phase R-_ the preceding calendar year. Annual Residual Receipts payment shall be by the
Borrower by cashier's check and shall be delivered on or before one hundred twenty (120) days
after the end of the Borrower's fiscal year, of each year during the term of this Note fast
following the date Phase R-_ of the Project (or any Phase thereof) is placed in service, until the
Note Amount and all unpaid interest thereon has been repaid in full. Any remaining portion of
the Note Amount shall be due and payable on the earlier to occur of (a) the fifty-eighth (58th)
anniversary of the date of the issuance of the Release of Construction Covenants for Phase R-_,
or (b) December 31, 2075. Notwithstanding the foregoing, the full Note Amount may be
accelerated as set forth in Section 12 hereof.
4. Definitions.
As used herein, "Annuar Project Revenue" shall mean all gross income and all
revenues of any kind from Phase R- - in a calendar year, including without limitation, rent,
Section 8 housing assistance payments, if any, late charges, vending machine income, and any
ATTACHMENT NO. 8B-1
DOCS001400673v] 41200272-0001
80A-389
other revenues of whatever kind or nature from the Phase R-_ of the Project, except that
security deposits (until applied), interest on security deposits and required reserves, sales
proceeds, and the proceeds of loans, refinancings, condemnation, insurance claims, and partner
capital contributions, shall not be considered Annual Project Revenue.
As used herein, "Applicable Federal Rate" means the interest rate set by the
United States Treasury from time to time for the purpose of determining applicable Low Income
Housing Tax Credit interest rates published by the Internal Revenue Service in monthly reserve
rulings.
As used herein, "Debt Service" means regularly scheduled payments of principal
and interest made in a calendar year pursuant to the financing obtained for the development and
ownership of Phase R-_ which has been approved by the Agency pursuant to the Agreement,
and which is senior in lien priority to the Agency Loan, but excluding payments made pursuant
to the Promissory Note.
As used herein, "Capital Replacement Reserve" shall mean a reasonably required
reserve not to exceed $250 per unit per year (or such greater amount as may be required by
lenders or investors for Phase R-_), to be used for the purpose of replacing capital items.
On or before one hundred twenty (120) days after the end of the Borrower's fiscal
year, of each year commencing in the year after the issuance of the Release of Construction
Covenants for Phase R-_, the Borrower shall annually provide the Agency an audited financial
statement for Phase R-_ and a Residual Receipts Report, in the form attached to the Agreement
as Attachment No. 10, which shall describe in detail the Annual Project Revenue, Debt Service,
Operating Expenses, Capital Replacement Reserve (including deposits therein and expenditures
therefrom), and Residual Receipts for that year for Phase R-_. The Borrower shall also submit
to the Agency, on or before one hundred twenty (120) days after the end of the Borrower's fiscal
year, of each year commencing in the year of the issuance of the Release of Construction
Covenants for t Phase R-_, annual audited financial statements with respect to the Project that
have been reviewed by an independent certified public accountant, together with an expressed
written opinion of the certified public accountant that such financial statements present the
financial position, results of operations, and cash flows fairly and in accordance with generally
accepted accounting principles.
"Operating Budget" and "Annual Budget" shall mean the annual operating
budget for each Phase of the Project that sets forth the projected Operating Expenses for the
upcoming year that is subject to and shall be submitted for review and approval by Executive
Director, in his/her reasonable discretion, each year during the Affordability Period pursuant to
Section 401.9 of the Agreement.
"Operating Expenses" shall mean actual, reasonable and customary (for
comparable high quality rental housing developments in Orange County) costs, fees and
expenses directly incurred, paid, and attributable to the operation, maintenance and management
of each Phase of the Rental Portion of the Project in a calendar year, and which is reasonably
consistent with the annual Operating Budget for each Phase approved by Agency pursuant to
401.9 of the Agreement, including: painting, cleaning, repairs, alterations, landscaping, utilities,
DOCS001400679v 141200272-0001
ATTACHMENT NO. 8B-2
80A-390
refuse removal, certificates, permits and licenses, sewer charges, real and personal property
taxes, assessments, insurance, security, advertising and promotion, janitorial services, cleaning
and building supplies, purchase, repair, servicing and installation of appliances, equipment,
fixtures and furnishings, fees and expenses of property management, fees and expenses of
accountants, attorneys and other professionals, the cost of social services and other housing
supportive services provided at the Project consistent with Developer's approved Tax Credit
Applications to TCAC for Phase R ^ , repayment of any completion or operating loans made
to Developer, and other actual, reasonable and customary operating costs and capital costs which
are directly incurred and paid by Developer, but which are not paid from or eligible to be paid
from the Capital Replacement Reserve or any other reserve accounts for the applicable Phase.
To the extent the Operating Expenses for a Phase are not reasonably consistent with the annual
Operating Budget for a given year, the Agency Executive Director shall reasonably review and
approve to confirm such Operating Expenses are reasonable and actually incurred; provided, no
approval shall be required for emergency expenditures reasonably necessary or appropriate to
preserve life, limb, or property.
Operating Expenses shall exclude all of the following: (i) salaries of employees
of Developer or Developer's general overhead expenses, or expenses, costs and fees paid to an
Affiliate of Developer, to the extent any of the foregoing exceed the expenses, costs or fees that
would be payable in a bona fide arms' length transaction between unrelated parties in the Orange
County area for the same work or services; (ii) any amounts paid directly by a tenant of the
Rental Portion of the Project to a third party in connection with expenses which, if incurred by
Developer, would be Operating Expenses; (iii) optional or elective payments with respect to
financing approval pursuant to Section 316.1 of the Agreement (the "Primary Loan") (unless
made with the consent of the Executive Director in her reasonable discretion); (iv) expenses,
expenditures, and charges of any nature whatsoever arising or incurred by Developer prior to
completion of the applicable Phase of the Rental Portion of the Project with respect to the
development, maintenance and upkeep of the applicable Phase of the Rental Portion of the
Project, or any portion thereof, including, without limitation, all costs and capitalized expenses
incurred by Developer in connection with the acquisition of the Site from the Agency (e.g. not
leasing to low income tenants), all predevelopment and preconstruction activities conducted by
Developer in connection with the Rental Portion of the Project, including, without limitation, the
preparation of all plans and the performance of any tests, studies, investigations or other work,
and the construction of the Rental Portion of the Project and any on-site or off-site work in
connection therewith; (vi) depreciation, amortization, and accrued principal and interest expense
on deferred payment debt; and (vii) any Partnership Related Fees to the extent they are not paid
as capitalized expenses.
"Partnership Agreement" means the partnership agreement between the
Developer and the Investor Limited Partner.
"Partnership Related Fees" shall mean the following fees of each Developer
entity, or partners thereof pursuant to the Partnership Agreement, which are actually paid:
(i) a general partner(s) (administrative and/or managing partner(s))
partnership management fee payable to the general partner(s) in a cumulative amount not to
DOCSOC 1140067M4J200272.0001
ATTACHMENT NO. 8B-3
80A-391
exceed Twenty-Five Thousand Dollars ($25,000) per year, increased annually by CPI (but in no
event by more than CPI);
(ii) a limited partner asset management fee payable to the Investor Limited
Partner in an amount not to exceed Five Thousand Dollars ($5,000) per year, increased annually
by CPI (but in no event by more than CPI); and
(iii) an annual audit fee in and for any calendar year.
In no event shall the fees for (i) and (ii) above cumulatively exceed Thirty
Thousand Dollars ($30,000) in any one year (exclusive of the CPI adjustment allowed per (i) and
(ii) above.) In the event insufficient Annual Project Revenues exist to provide for payment of all
or part of the specific Partnership Related Fees listed above, no interest shall accrue on the
unpaid portions of such Partnership Related Fees, but the unpaid balance will be added to the
Partnership Related Fees due in the following year.
"Residual Receipts" shall mean Annual Project Revenue for the applicable Phase
less the sum of:
(i) Operating Expenses;
(ii) Debt Service;
(iii) Reserve Deposits to the Capital Replacement Reserve;
(iv) Partnership Related Fees;
(v) unpaid Tax Credit adjustment amounts, if any (after review and
reasonable verification by Agency Executive Director of documents provided by Developer
showing propriety of such amounts and payments);
(vi) repayment of loans, if any, made by the limited partner(s) of
Developer, including interest at the Applicable Federal Rate (the propriety of any such loans
must be reasonably verified by Agency Executive Director);
(vii) property management fee for the Project which remains unpaid
after payment of Operating Expenses, if any;
(viii) Deferred Developer Fee for the Project which remains unpaid, if
any, including interest at the Applicable Federal Rate, if applicable, and subject to Section 203,
et seq.;
(ix) Repayment of outstanding development and operating loans, if
any, made by the administrative and/or managing general partners and/or the Guarantors to the
Project, including interest at the Applicable Federal Rate (the propriety of any such loans
pursuant to the terms of the Partnership Agreement must be reasonably verified by Agency
Executive Director);
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(x) Capital contributions to the Project, if any, made by the general
partners or managing member, as applicable, of Developer that were used to pay the Developer
Fee.
5. Security. This Note is secured by a Deed of Trust (the "Deed of Trust") dated as
of the same date as this Note.
6. Nonrecourse. This Note shall constitute a nonrecourse obligation of Borrower.
Neither Borrower, nor any of its partners (general or limited) shall have any personal liability for
payment or performance of this Note. In the event of a default hereunder, the Agency's sole
recourse shall be to proceed against the collateral described in the Deed of Trust.
7. Waivers
a. Borrower expressly agrees that this Note or any payment hereunder may
be extended from time to time at the Agency's sole discretion and that the Agency may accept
security in consideration for any such extension or release any security for this Note at its sole
discretion all without in any way affecting the liability of Borrower.
b. No extension of time for payment of this Note made by agreement by the
Agency with any person now or hereafter liable for the payment of this Note shall operate to
release, discharge, modify, change or affect the original liability of Borrower under this Note,
either in whole or in part.
C. The obligations of Borrower under this Note shall be absolute and
Borrower waives any and all rights to offset, deduct or withhold any payments or charges due
under this Note for any reasons whatsoever.
d. Borrower waives presentment, demand, notice of protest and nonpayment,
notice of default or delinquency, notice of acceleration, notice of costs, expenses or leases of
interest thereon, notice of dishonor, diligence in collection or in proceeding against any of the
rights of interests in or to properties securing of this Note, and the benefit of any exemption
under any homestead exemption laws, if applicable.
e. No previous waiver and no failure or delay by Agency in acting with
respect to the terms of this Note or the Deed of Trust shall constitute a waiver of any breach,
default, or failure or condition under this Note, the Deed of Trust or the obligations secured
thereby. A waiver of any term of this Note, the Deed of Trust or of any of the obligations
secured thereby must be made in writing and shall be limited to the express written terms of such
waiver.
8. Attorneys' Fees and Costs. Borrower agrees that if any amounts due under this
Note are not paid when due, to pay in addition, all costs and expenses of collection and
reasonable attorneys' fees paid or incurred in connection with the collection or enforcement of
this Note, whether or not suit is filed.
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9. Joint and Several Obligation. This Note is the joint and several obligation of all
makers, sureties, guarantors and endorsers, and shall be binding upon them and their heirs,
successors and assigns.
10. Amendments and Modifications. This Note may not be changed orally, but
only by an amendment in writing signed by Borrower and by the Agency.
11. Agency May Assign. Agency may, at its option, assign its right to receive
payment under this Note without necessity of obtaining the consent of the Borrower.
12. Borrower Assignment Prohibited. In no event shall Borrower assign or transfer
any portion of this Note without the prior express written consent of the Agency, which consent
shall not unreasonably be withheld, except pursuant to a transfer which is permitted or approved
pursuant to the terms of the Agreement.
13. Terms. Any terms not separately defined herein shall have the same meanings as
set forth in the Agreement.
14. Acceleration and Other Remedies. Upon: (a) the occurrence of an event of
Default as defined in the Agreement and delivery of notice and expiration of the cure period
described therein, or (b) Borrower selling, contracting to sell, giving an option to purchase,
conveying, leasing, further encumbering, mortgaging, assigning or alienating the Borrower's
interest in Phase R- - (other than as permitted or approved pursuant to the Agreement), whether
directly or indirectly, whether voluntarily or involuntarily or by operation of law, or any interest
in Phase R-,_t, or suffering its title, or any interest in Phase R-_ to be divested, whether
voluntarily or involuntarily, without the consent of the Agency or as otherwise approved or
permitted under the Agreement, Agency may, at Agency's option, declare the outstanding
principal amount of this Note, together with the then accrued and unpaid interest thereon and
other charges hereunder, and all other sums secured by the Deed of Trust, to be due and payable
immediately, and upon such declaration, such principal and interest and other sums shall
immediately become and be due and payable without demand or notice, all as further set forth in
the Deed of Trust. All costs of collection, including, but not limited to, reasonable attorneys'
fees and all expenses incurred in connection with protection of, or realization on, the security for
this Note, may be added to the principal hereunder, and shall accrue interest as provided herein.
Agency shall at all times have the right to proceed against any portion of the security for this
Note in such order and in such manner as such Agency may consider appropriate, without
waiving any rights with respect to any of the security. Any delay or omission on the part of the
Agency in exercising any right hereunder, under the Agreement or under the Deed of Trust shall
not operate as a waiver of such right, or of any other right. No single or partial exercise of any
right or remedy hereunder or under the Agreement or any other document or agreement shall
preclude other or further exercises thereof, or the exercise of any other right or remedy. The
acceptance of payment of any sum payable hereunder, or part thereof, after the due date of such
payment shall not be a waiver of Agency's right to either require prompt payment when due of
all other sums payable hereunder or to declare an event of Default for failure to make prompt or
complete payment.
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15. Successors and Assigns. Whenever "Agency' is referred to in this Note, such
reference shall be deemed to include the Community Redevelopment Agency of the City of
Santa Ana and its successors and assigns, including, without limitation, any subsequent assignee
or holder of this Note. All covenants, provisions and agreements by or on behalf of Borrower,
and on behalf of any makers, endorsers, guarantors and sureties hereof which are contained
herein shall inure to the benefit of the Agency and Agency's successors and assigns.
16. Miscellaneous. Time is of the essence hereof. This Note shall be governed by
and construed under the laws of the State of California except to the extent Federal laws preempt
the laws of the State of California. Borrower irrevocably and unconditionally submits to the
jurisdiction of the Superior Court of the State of California for the County of Orange in
connection with any legal action or proceeding arising out of or relating to this Note. Borrower
also waives any objection regarding personal or in rem jurisdiction or venue.
BORROWER:
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ATTACHMENT NO. 9
RECORDING REQUESTED BY, )
AND WHEN RECORDED MAIL TO: )
Community Redevelopment Agency )
of the City of Santa Ana )
20 Civic Center Plaza )
Santa Ana, California 92702 )
Attn: Executive Director 1
This document is exempt from payment of a
recording fee pursuant to Government Code
Sections 27383 and 6103.
DEED OF TRUST AND ASSIGNMENT OF RENTS
THIS DEED OF TRUST AND ASSIGNMENT OF RENTS is made as of the
day of 2010, by and among ("Trustor"),
whose address is
("Trustee") whose address is
and the COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, a public body, corporate and politic ("Beneficiary'), whose
address is 20 Civic Center Plaza, Santa Ana, California 92701.
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein
recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby
irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF
SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions
hereinafter set forth, the property located in the City of Santa Ana, County of Orange, State of
California, that is described in Exhibit A, attached hereto and by this reference incorporated
herein (the "Property");
TOGETHER WITH all rents, issues, profits, royalties, income and other benefits derived
from the Property (collectively, the "rents"), provided that so long as Truster is not in default
hereunder, it shall be permitted to collect rents and operate the Property;
TOGETHER WITH all interests, estates or other claims, both in law and in equity which
Trustor now has or may hereafter acquire in the Property and the rents;
TOGETHER WITH all easements, rights-of-way and rights used in connection therewith
or as a means of access thereto, including, without limiting the generality of the foregoing, all
tenements, hereditaments and appurtenances thereof and thereto;
TOGETHER WITH any and all buildings and improvements now or hereafter erected
thereon, and all property of the Trustor now or hereafter affixed to or placed upon the Property,
including, without limitation, all fixtures, attachments, appliances, furnishings, equipment and
machinery (whether fixed or movable) and other articles (including, in each instance,
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improvements, restorations, replacements, repairs, additions, accessions or substitutions thereto
or therefor);
TOGETHER WITH all leasehold estate, right, title and interest of Trustor in and to all
leases or subleases covering the Property or any portion thereof now or hereafter existing or
entered into, and all right, tide and interest of Trustor thereunder, including, without limitation,
all cash or security deposits, advance rentals, and deposits or payments of similar nature;
TOGETHER WITH all right, title and interest of Trustor in and to all options to purchase
or lease the Property or any portion thereof or interest therein, and any greater estate in the
Property owned or hereafter acquired;
TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter
acquired, in and to any land lying within the right-of-way of any street, open or proposed,
adjoining the Property, and any and all sidewalks, alleys and strips and gores of land adjacent to
or used in connection with the Property;
TOGETHER WITH all the estate, interest, right, title, other claim or demand, of every
nature, in and to such property, including the Property, both in law and in equity, including, but
not limited to, all deposits made with or other security given by Trustor to utility companies, the
proceeds from any or all of such property, including the Property, claims or demands with
respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may
hereafter acquire, any and all awards made for the taking by eminent domain or by any
proceeding or purchase in lieu thereof of the whole or any part of such property, including
without limitation, any awards resulting from a change of grade of streets and awards for
severance damages;
All of the foregoing, together with the Property, is herein referred to as the "Security."
FOR THE PURPOSE OF SECURING:
Repayment of that certain promissory note in the principal sum of
dated 2010 ("Promissory Note") in favor of Beneficiary.
2. Performance of all covenants and obligations of Trustor under that certain
"Regulatory Agreement" between Trustor and Beneficiary, of even date herewith.
3. Payment and performance of all covenants and obligations of Tmstor under that
certain "Disposition and Development Agreement" between Trustor and Beneficiary, of even
date herewith.
4. Payment and performance of all covenants and obligations of Trustor under this
Deed of Trust.
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ARTICLE I
1. The term "Expiration Date" means the date upon which the Promissory Note has
been paid in full, and all other obligations the performance of which is secured by this Deed of
Trust have been satisfied.
2. "Property" means the real property referred to in Exhibit A attached hereto.
3. "Security" means the Property and all appurtenant improvements.
ARTICLE H
MAINTENANCE AND MODIFICATION OF THE PROPERTY
AND SECURITY; RELEASE UPON PAYMENT
Section 2.1 Maintenance and Modification of the Property by Trustor. The Trustor
agrees that at all times prior to the Expiration Date, the Trustor will, at the Trustor's own
expense, maintain and preserve the Property.
Section 2.2 Release of Security. Upon its receipt of the repayment of all amounts due
under the Promissory Note, and all other obligations the performance of which is secured by this
Deed of Trust have been satisfied, the Beneficiary shall, upon the request of the Trustor, deliver
to the Trustor such instruments as are reasonably necessary to confirm the release of the Security
from the lien of this Deed of Trust.
ARTICLE III
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF THE TRUSTOR
Section 3.1 Defense of the Title. The Truster covenants that it is lawfully seized and
possessed of title in fee simple to the Property, that it has good right to sell, convey or otherwise
transfer or encumber the same, and that the Truster, for itself and its successors and assigns,
warrants and will forever defend the right and title to the foregoing described and conveyed
property unto the Beneficiary, its successors and assigns, against the claims of all persons
whomsoever, excepting only encumbrances approved by the Beneficiary.
Section 3.2 Inspection of the Property. The Trustor covenants and agrees that at any
and all reasonable times and upon reasonable notice, the Beneficiary and its duly authorized
agents, attorneys, experts, engineers, accountants and representatives, shall have the right,
without payment of charges or fees, to inspect the Property.
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ARTICLE IV
EVENTS OF DEFAULT AND REMEDIES
Section 4.1 Events of Default Defined. The occurrence of any failure of the Tmstor to
pay the Promissory Note or to otherwise perform an obligation the performance of which is
secured by this Deed of Trust, and the continuation of such failure for a period of thirty (30)
business days as to monetary obligations and sixty (60) business days as to non-monetary
obligations (or such additional time as may be reasonably necessary provided that Trustor
commences cure within such sixty (60) day period and thereafter diligently prosecutes such cure
to completion), after written notice specifying such failure and requesting that it be remedied
shall have been given to Trustor from the Beneficiary, shall be an "Event of Default" or a
"Default" under this Deed of Trust.
Section 4.2 Acceleration of Maturity. If an Event of Default shall have occurred and
be continuing, then the entire indebtedness secured hereby shall, at the option of the Beneficiary,
immediately become due and payable without notice or demand which are hereby expressly
waived, and no omission on the part of the Beneficiary to exercise such option when entitled to
do so shall be construed as a waiver of such right.
Section 4.3 The Beneficiary's Right to Enter and Take Possession. If an Event of
Default shall have occurred and be continuing, the Beneficiary may:
(a) Either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its
security, enter upon the Property and take possession thereof (or any part thereof) and of any of
the Security, in its own name or in the name of Trustee, and do any acts which it deems
necessary or desirable to preserve the value, marketability or rentability of the Property, or part
thereof or interest therein, increase the income therefrom or protect the Security hereof and, with
or without taking possession of the Property, sue for or otherwise collect the rents, issues and
profits thereof, including those past due and unpaid, and apply the same, less costs and expenses
of operation and collection, including attorneys' fees, upon any indebtedness secured hereby, all
in such order as Beneficiary may determine. The entering upon and taking possession of the
Property, the collection of such rents, issues and profits and the application thereof, as aforesaid,
shall not cure or waive any Default or notice of Default hereunder or invalidate any act done in
response to such Default or pursuant to such notice of Default and, notwithstanding the
continuance in possession of the Property or the collection, receipt and application of rents,
issues or profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of
Trust, the Agreement or by law upon occurrence of any Event of Default, including the right to
exercise the power of sale. Trustor requests that a copy of any Notice of Default and a copy of
any Notice of Sale hereunder be mailed to Trustor if at its address given herein;
(b) Commence an action to foreclose this Deed of Trust, appoint a receiver, or
specifically enforce any of the covenants hereof;
(c) Deliver to Trustee a written declaration of default and demand for sale,
and a written notice of default and election to cause Trustor's interest in the property to be sold,
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which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official Records
of the County in which the Property is located; or
(d) Exercise all other rights and remedies provided herein, in the instruments
by which the Trustor acquires title to the Property, including any Security, or in any other
document or agreement now or hereafter evidencing, creating or securing all or any portion of
the obligations secured hereby, or provided by law.
Section 4.4 Foreclosure By Power of Sale. Should the Beneficiary elect to foreclose by
exercise of the power of sale herein contained, the Beneficiary shall notify Trustee and shall deposit
with Trustee this Deed of Trust (and the deposit of which shall be deemed to constitute evidence
that the amount of the Promissory Note is immediately due and payable), and such receipts and
evidence of any expenditures made that are additionally secured hereby as Trustee may require.
(a) Upon receipt of such notice from the Beneficiary, Trustee shall cause to be
recorded, published and delivered to Trustor such Notice of Default and Election to Sell as then
required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse
of such time as may then be required by law and after recordation of such Notice of Default and
after Notice of Sale having been given as required by law, sell the Property, at the time and place
of sale fixed by it in said Notice of Sale, either as a whole or in separate lots or parcels or items
as Trustee shall deem expedient and in such order as it may determine, at public auction to the
highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee
shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds
conveying the property so sold, but without any covenant or warranty, express or implied. The
recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof.
Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such
sale, and Trustor hereby covenants to warrant and defend the title of such purchaser or
purchasers.
(b) After deducting all reasonable costs, fees and expenses of Trustee,
including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds
of sale to payment of. (i) the Promissory Note; (ii) all other sums then secured hereby; and
(iii) the remainder, if any, to the person or persons legally entitled thereto.
(c) Trustee may postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time the and without
further notice make such sale at the time fixed by the last postponement, or may, in its discretion,
give a new notice of sale.
Section 4.5 Receiver. If an Event of Default shall have occurred and be continuing,
Beneficiary, as a matter of right and without further notice to Trustor or anyone claiming under
Security, and without regard to the then value of the Property or the interest of Tmstor therein,
shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of
the Security (or a part thereof), and Tmstor hereby irrevocably consents to such appointment.
Any such receiver or receivers shall have all the powers and duties of receivers in like or similar
cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and shall
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continue as such and exercise all such powers until the date of confirmation of sale of the
Property, unless such receivership is sooner terminated.
Section 4.6 Remedies Cumulative. No right, power or remedy conferred upon or
reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right,
power or remedy, but each and every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right, power and remedy given hereunder or now
or hereafter existing at law or in equity.
Section 4.7 No Waiver.
(a) No delay or omission of the Beneficiary to exercise any right, power or remedy
accruing upon any Default shall exhaust or impair any such right, power or remedy, or shall be
construed to be a waiver of any such Default or acquiescence therein; and every right, power and
remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as
often as may be deemed expeditious by the Beneficiary. No consent or waiver, expressed or
implied, by the Beneficiary to or of any breach by the Trustor in the performance of the
obligations hereunder shall be deemed or construed to be a consent to or waiver of obligations of
the Trustor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to
act or to declare an Event of Default, irrespective of how long such failure continues, shall not
constitute a waiver by the Beneficiary of its right hereunder or impair any rights, powers or
remedies consequent on any breach or Default by the Trustor.
(b) If the Beneficiary (i) grants forbearance or an extension of time for the payment
of any sums secured hereby, (ii) takes other or additional security or the payment of any sums
secured hereby, (iii) waives or does not exercise any right granted herein, or in the Agreement,
(iv) releases any part of the Security from the lien of this Deed of Trust, or otherwise changes
any of the terms, covenants, conditions or agreements of this Deed of Trust or the Agreement,
(v) consents to the filing of any map, plat or replat affecting the Security, (vi) consents to the
granting of any easement or other right affecting the Security, or (vii) makes or consents to any
agreement subordinating the lien hereof, any such act or omission shall not release, discharge,
modify, change or affect the original liability under this Deed of Trust, or any other obligation of
the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-
signer, endorser, surety or guarantor (unless expressly released); nor shall any such act or
omission preclude the Beneficiary from exercising any right, power or privilege herein granted
or intended to be granted in the event of any Default then made or of any subsequent Default,
nor, except as otherwise expressly provided in an instrument or instruments executed by the
Beneficiary shall the lien of this Deed of Trust be altered thereby. In the event of the sale or
transfer by operation of law or otherwise of all or any part of the Property, the Beneficiary,
without notice, is hereby authorized and empowered to deal with any such vendee or transferee
with reference to the Security (or a part thereof) or the indebtedness secured hereby, or with
reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the
same extent as it might deal with the Trustor and without in any way releasing or discharging
any liabilities, obligations or undertakings of the Trustor.
Section 4.8 Suits to Protect the Security. The Beneficiary shall have power (upon
ninety (90) days notice to the Trustor) to (a) institute and maintain such suits and proceedings as
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it may deem expedient to prevent any impairment of the Security (and the rights of the
Beneficiary as secured by this Deed of Trust) by any acts which may be unlawful or any
violation of this Deed of Trust, (b) preserve or protect its interest (as described in this Deed of
Trust) in the Security and in the rents, issues, profits and revenues arising therefrom, and
(c) restrain the enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for
compliance with such enactment, rule or order would impair the security thereunder or be
prejudicial to the interests of the Beneficiary.
Section 4.9 Trustee May File Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other
proceedings affecting the Truster, its creditors or its property, the Beneficiary, to the extent
permitted by law, shall be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of the Beneficiary allowed in such proceedings
for the entire amount due and payable by the Trustor under this Deed of Trust at the date of the
institution of such proceedings and for any additional amount which may become due and
payable by the Trustor hereunder after such date.
ARTICLE V
MISCELLANEOUS
Section 5.1 Amendments. This instrument cannot be waived, changed, discharged or
terminated orally, but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, discharge or termination is sought.
Section 5.2 Reconvevance by Trustee. Upon written request of Beneficiary stating
that all sums and other obligations secured hereby have been paid or performed, and upon
surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by
Trustor of Trustee's reasonable fees, Trustee shall reconvey to Trustor, or to the person or
persons legally entitled thereto, without warranty, any portion of the Property then held
hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of
the truthfulness thereof. The grantee in any reconveyance may be described as "the person or
person legally entitled thereto."
Section 5.3 Attorneys' Fees. In the event that any parties hereto resort to legal action
in order to enforce the provisions of this Deed of Trust or defend such suit, the prevailing party
shall be entitled to receive reimbursement from the non-prevailing party for all reasonable
attorneys' fees and all other costs incurred in commencing or defending such suit.
Section 5.4 Notices. Whenever Beneficiary, Truster or Trustee shall desire to give or
serve any notice, demand, request or other communication with respect to this Deed of Trust,
each such notice, demand, request, or other communication shall be in writing and shall be
effective only if the same is delivered by personal service or mailed by registered or certified
mail, postage prepaid, return receipts requested, or by telegram, addressed to the address set forth
in the first paragraph of this Deed of Trust. Any party may at any time change its address for
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such notices by delivering or mailing to the other parties hereto, as aforesaid, a notice of such
change.
Section 5.5 Acceptance by Trustee. Trustee accepts this Trust when this Deed of
Trust, duly executed and acknowledged, is made a public record as provided by law.
Section 5.6 Captions. The captions or headings at the beginning of each
Section hereof are for the convenience of the parties and are not a part of this Deed of Trust.
Section 5.7 Invalidity of Certain Provisions. Every provision of this Deed of Trust is
intended to be severable. In the event any term or provision hereof is declared to be illegal or
invalid for any reason whatsoever by a court of competent jurisdiction, such illegality or
invalidity shall not affect the balance of the terms and provisions hereof, which terms and
provisions shall remain binding and enforceable. If the lien of this Deed of Trust is invalid or
unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of
the Security, the unsecured or partially secured portion of the debt, and all payments made on the
debt, whether voluntary or under foreclosure or other enforcement action or procedure, shall be
considered to have been first paid on and applied to the full payment of that portion of the debt
which is not secured or partially secured by the lien of this Deed of Trust.
Section 5.8 No Merger. If title to the Property shall become vested in the Beneficiary,
this Deed of Trust and the lien created hereby shall not be destroyed or terminated by application
of the doctrine of merger and, in such event, Beneficiary shall continue to have and enjoy all of
the rights and privileges of Beneficiary under this Deed of Trust. In addition, upon foreclosure
under this Deed of Trust pursuant to the provisions hereof, any leases or subleases then existing
and affecting all or any portion of the Security shall not be destroyed or terminated by
application of the law of merger or as a matter of law or as a result of such foreclosure unless
Beneficiary or any purchaser at any such foreclosure shall so elect. No act by or on behalf of
Beneficiary or any such purchaser shall constitute a termination of any lease or sublease unless
Beneficiary or such purchaser shall give written notice of termination to such tenant or
subtenant.
Section 5.9 Governing Law. This Deed of Trust shall be governed by and construed
in accordance with the laws of the State of California.
Section 5.10 Gender and Number. In this Deed of Trust the singular shall include the
plural and the masculine shall include the feminine and neuter and vice versa, if the context so
requires.
Section 5.11 Nondisturbance Agreement. In the event of any foreclosure of this Deed
of Trust or a transfer in lieu of foreclosure, Beneficiary or other transferee shall recognize and
not disturb the possession, tenancy, leasehold estate and rights of all tenants and occupants of the
Property or any portion thereof, and shall honor and abide by all of the terms, covenants and
conditions of each lease for the remaining balance of the term or extension thereof with the same
force and effect as if Beneficiary or such other transferee were the original lessor under the lease;
provided, however, that the tenant is not in default under its lease and Beneficiary or such other
transferee shall not be (a) liable for any damage, loss or expense arising from any act or omission
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of any prior lessor (including Trustor) under any lease, (b) subject to any offsets, abatements,
rent reductions or defenses which the tenant may be entitled to assert against any prior lessor
(including Trustor) under any lease, or (c) liable or responsible for or with respect to the
retention, application and/or return to the tenant of any security deposit paid to any prior lessor
(including Trustor) under any lease, whether or not still held by any prior lessor (including
Trustor), unless and until Beneficiary or such other transferee has actually received for its own
account as lessor under the lease the full amount of such security deposit or a credit therefor.
Each tenant and occupant of the Property shall, upon any foreclosure of this Deed of Trust or
transfer in lieu of foreclosure, be bound to Beneficiary or such other transferee under all of the
terms, covenants and conditions of the tenant's lease for the remaining balance of the term
thereof or extension thereof, with the same force and effect as if Beneficiary or such other
transferee were the original lessor under such lease, and the tenant shall attom to Beneficiary or
such other transferee as its lessor, such attomment to be effective and self-operative without the
execution of any further instruments by either party, immediately upon the tenant's receipt of
written notice from Beneficiary or such other transferee or from Trustor that title to the Property
has vested in Beneficiary or such other transferee. Rent paid by a tenant or occupant to the
transferee after receipt of such notice shall be considered to be rental payment under the lease.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and
year first above written.
TRUSTOR:
By:.
Its:
DOC SOC/ L400673v 14!200272.0003
ATTACHMENT NO. 9-9
80A-404
EXHIBIT A
LEGAL DESCRIPTION OF PHASE R OF PROJECT
EXHIBIT A TO ATTACHMENT NO.9
HOC S OG 1400673 v 141200272-0001
80A-405
STATE OF CALIFORNIA }
} ss.
COUNTY OF )
On before me, Notary Public,
(Print Name of 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- of NotaryPublic
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
? Individual
? Corporate Officer
Tifle(s) Tide Or Type Of Doeument
? Partner(s) ? Limited
? General
? Altorney-In-Fact
? Trustee(s)
? Guardian/Conservator Number OFPagr
? Other:
Signer is representing:
Name Of Person(s) Or Entity(tes)
Date ornocumenus
Signer(s) Ocher Than Named Above
DOC SOC11400673 vl4/200272-0001
80A-406
ATTACIIMENT NO. 10
Operatina Income
Rent Payments'
Interest Earnings z
Additional Income
Total Operating Income
Operating Expenses
Propety Management Expenses
Administrative Expenses4
Maintenance Payroll & Expenses
utility Expenses
Taxes s
Insurance a
Rental Expenses
Total Operating Expenses
III. Partnership Exoenses
Partnership Management Fee
Asset Management Fee
Total Partnership Expenses
ATTACHMENT 10
RESIDUAL RECEIPTS CALCULATIONS
Previous Year
Current Year
Budget Budget Actuaf Difference
' Includes rent paid from all sources including Section 0 rental assistance-
2 Excluding earnings on capitat reserves and tenant security deposits.
3 Includes laundry, vending machine, application fees, tenant forfeited deposits, and fines levied against tenants.
4 Includes employee salaries; accounting and bookeeping; legal; compliance monitoring; and collection losses.
' Includes real estate and payroll taxes.
Includes property and Ilabiiity Insurance; fidelity bond insurance; worker's compensation insurance; and health Insurance and employee. benefits,
DOCSOC11400673v 14/200272-0001
ATTACHMENT NO. 10-1
80A-407
ATTACHMENT NO. 11
FORM OF HOMEBUYER LOAN AGREEMENT
THIS HOMEBUYER LOAN AGREEMENT (this "Agreement") is made as of
20_ by and between
(the "Homebuyer") and the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY
OF SANTA ANA, a public body, corporate and politic (the "Agency").
RECITALS
A. The Agency is a community redevelopment agency duly organized and existing
under the California Community Redevelopment Law, Health & Safety Code Section 33000,
et seq., ("CRL") and has been authorized to transact business and exercise the power of a
community redevelopment agency pursuant to action of the City Council ("City Council") of the
City of Santa Ana ("City").
B. The Homebuyer has entered into a purchase and sale agreement (the "Purchase
Agreement") with (the "Seller" or "Developer") to purchase
certain real property improved with a single family house thereon. Such real property is
cornmonly known as Santa Ana, California, and more particularly
described in Exhibit "A" attached hereto and incorporated herein (the "Property").
C. The Agency is engaged in activities necessary and appropriate to carry out the
Redevelopment Plan (the "Redevelopment Plan") for the Merged Redevelopment Project (the
"Project Area") which was adopted by the City Council by Ordinance Nos. 2662-2667 adopted
by the City Council of the City of Santa Ana (the "City") on September 30, 2004.
D. Pursuant to Section 33334.2, et seg. of the CRL, the Agency has deposited funds
into its Low and Moderate Income Housing Fund (the "Housing Fund") for the purpose of
providing subsidies to, or for the benefit of, persons and families of Low and Moderate Income
in order to assist them in obtaining housing within the community.
E. The Property has been constructed pursuant to a "Disposition and Development
Agreement" between the Agency and 1 dated as of 2010.
Developer has assumed the obligations under the Disposition and Development Agreement with
respect to the Phase FS (single family homes), as defined therein, pursuant to an Assignment and
Assumption Agreement with The Disposition and
Development Agreement requires the Developer to sell the Property to a "Moderate Income
Household" at an "Affordable Housing Cost," as those terms are defined in California Health &
Safety Code Sections 50052.5 and 50093 and the implementing regulations thereto in Title 25,
California Code of Regulations, Section 6910, et seq.
F. The Disposition and Development Agreement requires the Agency to enter into
this Agreement to establish a subordinate loan secured by a second trust deed to the Homebuyer,
ATTACHMENT NO. 11-1
Form of Homebuyer Loan Agreement
DOCSOG 14006M 14200272-0001
80A-408
and for the Homebuyer to agree that the Property may only be marketed and sold and re-sold (or
otherwise transferred in whole or in part) to other qualified Moderate Income Households at an
Affordable Housing Cost for a forty-five (45) year period conforming to Health & Safety Code
Section 33000, et seq., in particular Section 33334.2, et seq. (the "Program"). The Agency has
elected, pursuant to Health and Safety Code Section 33334.3(f)(1)(B) to permit sales of the
Property prior to the expiration of the forty-five year period for a price in excess of an
Affordable Housing Cost pursuant to an adopted program which protects the Agency's
investment of moneys from the Low and Moderate Income Housing Fund, through a schedule of
equity sharing that permits retention by the Homebuyer of a portion of those excess proceeds.
G. The Homebuyer requires financial assistance to purchase the Property and would
not be able to purchase the Property without such assistance. The Homebuyer is a person or
family whose income is less than Moderate Income, as such term is defined by California Health
& Safety Code Section 50093.
H. The Homebuyer represents and warrants to the Agency that the Homebuyer and
the Homebuyer's immediate family/household members intend to reside in the Property as their
principal residence at all times during the period of the Homebuyer's ownership of the Property.
1. The Agency wishes to lend and the Homebuyer wishes to borrow from the
Agency funds in the form of a forty-five (45) year loan (the "Homebuyer Assistance Loan")
secured by a subordinate lien deed of trust to assist the Homebuyer to pay a portion of the
purchase price, down payment, and/or closing costs necessary to buy the Property pursuant to the
Program and subject to the terms and conditions set forth herein. The principal balance of the
Homebuyer Assistance Loan will be forgiven in the event that the Homebuyer (including its
permitted assignees and transferees) has complied with all of the terms and conditions of this
Agreement during the Affordability Period_
J. For a period (the "Affordability Period") commencing upon the date on which the
Homebuyer acquires fee title to the Property (the "Homebuyer Assistance Loan Date") and
terminating on the forty-fifth (45th) anniversary thereof (the "Affordability Period Termination
Date"), the Property may only be transferred to another eligible, qualified Moderate Income
Household at an Affordable Housing Cost ("Eligible Persons and Families"). Homebuyer may,
in Homebuyer's sole discretion, opt to transfer the Property at a price in excess of an Affordable
Housing Cost during the Affordability Period pursuant to Section Lf. hereof, upon payment of
an equity sharing amount to the Agency hereunder.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the Parties hereto agree as follows:
1. Homebuyer Assistance Loan; Promissory Note.
1.1 Homebuyer Assistance Loan. The Agency loans to the Homebuyer and
the Homebuyer borrows from the Agency the amount of
Dollars ($ I (the "Homebuyer Assistance Loan Amount"), subject to the conditions
and restrictions set forth herein and those set forth in the Promissory Note, Agency Deed of
Trust, Notice of Affordable Restrictions, Affordable Housing Resale Restriction, and Disclosure
ATTACHMENT NO. 11-2
Form of Homebuyer Loan Agreement
UOCSOd 1411efi73v14l2110272-Ofio]
80A-409
Statement (as those terms are hereinafter defined). The Developer and the Homebuyer have
opened an escrow (Escrow No. r -?- i with escrow/title company)
for Homebuyer's acquisition of the Property (the "Escrow'? and the Agency shall be an
additional party to the Escrow in connection with the Homebuyer Assistance Loan.
1.2 Promissory Note. The Homebuyer shall execute, as maker, and deliver to
the Agency, a promissory note in favor of the Agency, as holder, substantially in the form of
Exhibit 'B" that is attached hereto and incorporated herein by this reference (the "Note" or
"Promissory Note"). As more particularly provided in the Note, the essential terms and
conditions of the Homebuyer Assistance Loan are as follows:
a. Term. The term of the Note shall be forty-five (45) years from the
Homebuyer Assistance Loan Date (the "Term").
b. Note Amount. The sums due and payable pursuant to the terms
and provisions of the Note consist of both the Homebuyer Assistance Loan Amount and the
Contingent Equity Participation Amount, as both terms are herein defined (collectively, the
"Note Amount"). As one component of the Note Amount, the Homebuyer shall pay to the
Agency the principal amount of Dollars
with zero percent (0%) interest thereon, subject to subsection (c) below.
C. Contingent Equity Participation Amount. As a second
component of the Note Amount, the Homebuyer shall pay to the Agency, together with the
whole of the Homebuyer Assistance Loan Amount, the "Contingent Equity Participation
Amount" if required by Section 3.
d. Homebuyer Assistance Loan Amount; Interest Deferred Until
Acceleration. The Homebuyer Assistance Loan Amount shall accrue zero percent (0%) interest
unless and until an event of acceleration occurs as set forth in Section 1.2(f), in which event a
"Contingent Equity Participation Amount" shall become due and payable by the Homebuyer if
required by Section 3.
e. Homebuyer Assistance Loan Amount; Time of Payment and
Forgiveness. No repayment of the Homebuyer Assistance Loan Amount shall be required
unless and until the Note Amount becomes due and payable, as provided in subparagraph (f)
below.
f. Acceleration. The whole of the Note Amount and all other
payments due hereunder shall become due and be immediately payable to the Agency by the
Homebuyer upon the occurrence of any one of the following events of acceleration:
(i) The Homebuyer sells or transfers the Property (or any part
thereof) by any means, including, without limitation, the lease, the rental, the exchange or other
disposition of the Property or any interest therein, whether voluntary or involuntary, except (A) a
sale of the Property to an eligible, qualified Moderate Income Household at an Affordable
Housing Cost with the Agency's prior written approval accomplished in strict conformity with
Section 4, or (B) the transfer of the Property solely as a result of the marriage, divorce,
ATTACHMENT NO. 11-3
Form of Homebuyer Loan Agreement
DOC30G 1400673v ] 41200272-0001
80A-410
incompetence or death of one or more individuals constituting the Homebuyer, so long as the
transferee(s) give written notice supported by reasonable evidence of such event to the Agency
within thirty (30) days of its occurrence and the transferee(s) assume(s) the Homebuyer's
obligations under this Agreement, by execution of an assignment and assumption agreement to
be provided by the Agency, or (C) a sale or transfer which under federal law would not, by itself,
permit the Agency to exercise a due on sale or due on encumbrance clause;
(ii) The Homebuyer refinances any purchase money first lien
or other permitted encumbrance to which the Agency Deed of Trust (as hereinafter defined) is
subordinate (each such lien, a "First Lien") for a loan amount in excess of the then current loan
balance secured by such lien or encumbrance and loan closing costs; and/or
(iii) The Homebuyer (and all co-signors and co-mortgagors, if
any) fails to own and occupy the Property as their principal residence pursuant to Section 7 or is
in Ownership Default (defined in Section 18) under this Agreement.
At the request of the Homebuyer, and for a specific occasion, the Agency may, in
its sole and absolute discretion, in writing waive the requirements of this subparagraph (f) and
defer repayment and/or extend the term of the Note. Any waiver or deferment shall be on a case
by case basis, and no future rights for waiver or deferment shall arise or be implied.
Notwithstanding the foregoing, the Homebuyer may, upon prior written approval by the Agency,
refinance any First Lien for a loan amount equal to or less than the then current loan balance
secured by such First Lien.
g. Homebuyer Assistance Loan Repayment. If there is an event of
acceleration prior to the forty-fifth (45th) Anniversary of the date of the Promissory Note, the
Homebuyer shall repay the Homebuyer Assistance Loan in accordance with this subparagraph
(g). In the event that no event of acceleration occurs prior to the forty-fifth (45th) Anniversary of
the date of the Promissory Note, the full amount of the Promissory Note shall be forgiven, and
there shall be no further obligations hereunder.
(i) Note Amount Due In Full. The whole of the Note
Amount shall be due in full when an event of acceleration occurs. After paying all costs and fees
relating to the transaction, if any (such as escrow fees, transfer taxes, recording fees, brokerage
commissions and similar costs), the proceeds of any such transaction (or, in the case of any event
of acceleration other than a sale, the appraised value of the Property) shall be distributed or
applied in the following order of priority:
(A) Repayment of the First Lien;
(B) Repayment of other pre-approved subordinate
lien(s), if any, as and in the lien recording priority that such lien(s) were approved by the
Executive Director pursuant to Sections 1.2(i) and 14;
(C) Repayment to the Agency of the Homebuyer
Assistance Loan Amount; and
ATTACHMENT NO. 11-4
Form of Homebuyer Loan Agreement
DOC SOC/ 140067304@00272-0001
80A-411
Amount, if any.
(D) Payment of the Contingent Equity Participation
h. Security for Homebuyer Assistance Loan. The obligation of the
Homebuyer to repay the Homebuyer Assistance Loan pursuant to this Agreement, as evidenced
by the Promissory Note, shall be secured by a subordinate deed of trust and rider thereto
encumbering the Property, substantially in the form of Exhibit "C" that is attached hereto and
incorporated herein by this reference (the "Agency Deed of Trust"). The Agency Deed of Trust
shall be executed by the Homebuyer, as ttustor, in favor of the Agency, as beneficiary.
i. Subordination. Subject to the subordination provisions set forth
herein and in the Note and the Affordable Housing Resale Restriction, the Agency Deed of Trust
shall be subordinate only to the First Lien mortgage obtained by the Homebuyer and, if
applicable, other loan(s) as approved by the Executive Director, including lien instruments that
secure other homebuyer purchase money and/or downpayment assistance, including without
limitation City, State of California, or federal affordable housing programs.
j. Prepayment of Homebuyer Assistance Loan. The Homebuyer
may prepay the Homebuyer Assistance Loan to the Agency, provided that any prepayment must
be in full and not in part. Prepayment shall be treated in the same manner as refinancing of the
Property. In any event, the Affordable Housing Resale Restriction shall continue in full force
and effect, notwithstanding such prepayment.
k. Assumption of Homebuyer Assistance Loan and Promissory
Note. The Homebuyer Assistance Loan and the Promissory Note may be assumed by a
subsequent qualified Moderate Income Household, as purchaser of the Property, but only in
accordance with the terms and conditions set forth in Section 4.
1. Joint and Several. The undersigned, if more than one person,
shall be jointly and severally liable under this Agreement for the repayment of the Homebuyer
Assistance Loan.
m. Homebuyer's Waivers. The Homebuyer waives any rights to
require the Agency to: (i) demand payment of amounts due (known as "presentment"), (ii) give
notice that amounts due have not been paid (known as "notice of dishonor") and (iii) obtain an
official certification of nonpayment (known as "protest").
2. Notice to Agency. The Homebuyer (or the Homebuyer's heirs following the
death of the Homcbuyer) agrees to notify the Agency not less than sixty (60) days prior to (i) the
opening of escrow for the sale of the Property, (ii) the signing of any agreements or documents
related to the transfer, including, without limitation, lease, exchange or other disposition of any
interest in the Property, (iii) any proposed refinancing of any First Lien or (iv) the close of the
Homebuyer's probate estate. Nothing in this Section 2, however, shall be construed to authorize
the Property to be leased or rented.
3. Contingent Equity Participation Amount. If an event of acceleration occurs as
described in Section 1.2(f) and the Homebuyer is not selling the Property pursuant to Section 4,
ATTACHMENT NO. 11-5
Form of Homebuyer Loan Agreement
DOCS00 1400673v 141200272-0001
80A-412
the Homebuyer shall pay to the Agency the whole of the Homebuyer Assistance Loan Amount
and the "Contingent Equity Participation Amount," as hereinafter described. If the Homebuyer
is selling the Property to an Eligible Person and Family at an Affordable Housing Cost with the
Agency's prior written approval, in accordance with the requirements of Section 4 hereof, then
no Contingent Equity Participation Amount shall be required hereunder in connection with such
sale.
3.1 Calculation of Contingent Equity Participation Amount. The
"Contingent Equity Participation Amount' means an amount equal to a percentage share of the
appreciation of the Property determined by multiplying a variable percentage factor (the
"Variable Applicable Factor") by the difference between the Sales Price and the Purchase Price
(as those terms are hereinafter defined).
a. Variable Applicable Factor Calculation. The Variable
Applicable Factor shall be calculated by dividing the Agency's total initial equity contribution
(the "Agency Contribution") by the sum of the Agency Contribution plus the Homebuyer's
Contribution. In other words, the Agency Contribution shall be the numerator, and the sum of
the Agency Contribution plus the Homebuyer Contribution shall be the denominator of a fraction
that equals a percentage that is the Variable Applicable Factor (subject to Section 3.1(a)(i)).
Variable Applicable Factor = Agency Contribution
Agency Contribution + Homebuyer Contribution
For example, if the Agency Contribution equals $30,000 and the Homebuyer
Contribution equals $250,000, the Variable Applicable Factor would equal 10.7% ($30,000
divided by the sum of $30,000 plus $250,000).
10.7% (Variable Applicable Factor) = $30,000 (Agency Contribution)
$30,000 (Agency Contribution) + $250,000 (Homebuyer
Contribution) = ($280,000)
(i) The "Agency Contribution" is the sum of the following
amounts contributed by the Agency to the purchase price of the Property: (i) the principal
amount of the Homebuyer Assistance Loan, i.e., the Affordable Housing Cost Subsidy (as
hereinafter defined); and (ii) the principal amount(s) of any other loan(s) or subsidy(ics)
provided by the Agency.
(ii) The "Homebuyer Contribution" is the sum of the following
amounts contributed by the Homebuyer to the purchase price of the Property: (i) the principal
amount of the First Lien purchase money mortgage; (ii) the Homebuyer's cash down payment
ATTACHMENT NO. I1-6
Form of Homebuyer Loan Agreement
DOCSOC/ 1400673v 14/200272-0001
80A-413
plus the Homebuyer's portion of closing costs; and (iii) the original principal amount of loans(s)
or other subsidy(ies) secured by Homebuyer, (excluding any other than loan(s) or subsidy(ies)
provided by the Agency (as set forth in the definition of Agency Contribution)) and applied by
the Homebuyer towards the purchase of the Property.
(iii) The "Purchase Price" is the original purchase price paid by
the Homebuyer (or the Homebuyer as the qualified successor owner of the Property) to the seller
of the Property (the "Seller") (generally this amount shall be equal to the original fair market
value of the Property at the time of the initial/original sale of the Property by the Developer to
the Homebuyer) for the Seller's interest in the Property, exclusive of escrow fees, title insurance
costs, broker's commissions, loan fees or any other closing or transaction costs. Subject to the
provisions set forth hereinbelow, the value of Qualified Capital Improvements shall be added to
the Purchase Price when calculating the Contingent Equity Participation Amount.
(iv) The "Sales Price" is the price to be paid by the prospective
buyer (who is not a qualified Moderate Income Household) of the Property (the "Buyer") to the
Homebuyer (or the Homebuyer as the qualified successor owner of the Property) for the
Homebuyer's interest in the Property, exclusive of reasonable escrow fees, title insurance costs,
broker's commissions, loan fees or any other closing or transaction costs. The Sales Price shall
be established in conformity with Section 3.5(a) hereof. In the event of the Homebuyer's
refinancing, failure to occupy, or default, the "Sales Price" shall be established by appraisal paid
for by the Homebuyer in conformity with Section 3.5(b).
(v) The "Affordable Housing Cost Subsidy" is the amount
deemed to be a subsidy from the Agency provided to the Homebuyer by making the Property
available for purchase at a price that constitutes an Affordable Housing Cost for the Homebuyer
as a Moderate Income Household. The Affordable Housing Cost Subsidy equals the difference
between the appraised fair market value of the Property and the Affordable Housing Cost of the
Property.
3.2 Using the Variable Applicable Factor to Determine the Contingent
Equity Participation Amount. The Contingent Equity Participation Amount is calculated by
multiplying the Variable Applicable Factor by the difference between the Sales Price and the
Purchase Price. For example, if the Variable Applicable Factor equals 10.7%, the Contingent
Equity Participation Amount would then equal 10.7% (Variable Applicable Factor) x (Sales
Price minus the Purchase Price).
a. In the above example, if the Sales Price (to occur upon resale not
conforming to Section 4) equals $380,000 and the Purchase Price equals $280,000, the
Contingent Equity Participation Amount would equal $10,700 (10.7% x ($380,000 minus
$280,000)).
10.7% (Variable Applicable Factor) x $100,000 (Sales Price- Purchase Price) =$10,700
(Contingent Equity Participation Amount).
b. Calculation of Contingent Equity Participation Amount for Subsequent
Homebuyers. If pursuant to Section 4, a Buyer has fully assumed the Homebuyer's obligations
ATTACHMENT NO. 11-7
Form of Homebuyer Loan Agreement
DOCS00 1400673v141200272-0001
80A-414
under this Agreement, the Note, the Agency Deed of Trust, the Notice of Affordable Restrictions
and the Affordable Housing Resale Restriction, and thereafter the new Buyer, as the successor
Homebuyer, defaults and causes an event of acceleration to occur, the Contingent Equity
Participation Amount to be paid by such Buyer shall be calculated by multiplying the Variable
Applicable Factor, established in Section 3.l(a), by the difference between the Sales Price,
established in conformity with Section 3.5, and the Purchase Price.
C. No Appreciation or Depreciation in Value of Property. If an
event of acceleration occurs at a time when the Property has not appreciated or the value of the
Property has depreciated (the Sales Price is less than the Purchase Price), then no Contingent
Equity Participation Amount is due by the Homebuyer to the Agency.
3.3 Qualified Capital Improvements. The value of any Qualified Capital
Improvements completed by the Homebuyer during the Homebuyer's ownership of the Property
shall be added to the Purchase Price when calculating the Contingent Equity Participation
Amount only if, not later than thirty (30) days prior to the event of acceleration causing the
Contingent Equity Participation Amount to become immediately due and payable pursuant to
Section 1.2(f), the Homebuyer submits the following to the Agency: (i) an itemized list of the
Qualified Capital Improvements, (ii) reliable proof of completion of the Qualified Capital
Improvements (as evidenced by final building permits, a certificate of completion or original
paid invoices or construction contracts), and (iii) an appraisal from a certified appraiser, in form
and substance reasonably acceptable to the Executive Director, the conclusion of which is that
the Qualified Capital Improvements have added the stated amount to the fair market value of the
Property.
If, within (30) days of receipt of the information concerning the Qualified Capital
Improvements, the Agency questions the claimed increase in the value of the Property by reason
of said Qualified Capital Improvements, the Agency and the Homebuyer may, by mutual
agreement, establish the value of the Qualified Capital Improvements or the Agency may require
an appraisal of the Property, at the Homebuyer's expense, by a second independent certified
appraiser appointed by the Agency to determine the fair market value of the Qualified Capital
Improvements.
3.4 Credit to Homebuyer. Notwithstanding the foregoing provisions of this
Section 3, calculation of the Contingent Equity Participation Amount is subject to a superior
right of the Homebuyer to receive credit in calculation of the Purchase Price for money paid by
the Homebuyer post-acquisition and during the term of the Homebuyer's ownership of the
Property for installment payments of mortgage principal, pursuant to the First Lien actually made
by the Homebuyer, in addition to the fair market value of Qualified Capital Improvements
consistent with the requirements of Section 3.3.
3.5 Determination of Sales Price; Appraisal.
a. Upon Sale of the Property. In the event of a proposed sale of the
Property by the Homebuyer that does not conform to Section 4, and not less than thirty (30) days
after the Agency receives actual notice of the opening of escrow in connection therewith, the
Agency may elect to appoint a certified, independent appraiser to conduct an appraisal of the
ATTACHMENT NO. 11-8
Form of Homebuyer Loan Agreement
DOC S OG 1400673 v 141200272-0001
80A-415
Property, at the Homebuyer's expense, to assist the Agency in determining if the Sales Price is at
or near the fair market value of the Property at such time. If the Sales Price is determined by the
appraisal to be three percent (3%) or more below the fair market value of the Property as
estimated in said appraisal, then the "Sales Price" for purposes of determining the Contingent
Equity Participation Amount shall be the fair market value of the Property established in said
appraisal,
h. Upon Refinancing/Failure to Occupy/Default. In the event of
refinancing, failure to occupy all of the Property in accordance with Section 7, or default or
breach of any provision of this Agreement that causes acceleration and the Contingent Equity
Participation Amount to become immediately due and payable, the "Sales Price" for purposes of
determining the Contingent Equity Participation Amount shall be determined by an appraisal of
the Property. The Agency shall appoint a certified independent appraiser to conduct an appraisal
of the Property, at the Homebuyer's expense. The Homebuyer agrees that in such event the
Contingent Equity Participation Amount shall be the Variable Applicable Factor multiplied by
the difference between the Purchase Price and Sales Price as established by the appraised value
of the Property at the time of such refinancing, failure to occupy, or default of this Agreement.
Amount.
3.6 Homebuyer's Acknowledgment of Contingent Equity Participation
HOMEBUYER ACKNOWLEDGES AND AGREES THAT
UPON AND/OR UPON ANY OTHER EVENT OF
ACCELERATION AS SET FORTH IN SECTION 1.2(f)
HEREOF, HOMEBUYER SHALL PAY TO AGENCY (IN
ADDITION TO THE AGENCY LOAN AMOUNT),
A CONTINGENT EQUITY PARTICIPATION AMOUNT
EQUAL TO A PERCENTAGE SHARE OF THE
APPRECIATION OF THE PROPERTY AS CALCULATED
PURSUANT TO THIS SECTION 3.
HOMEBUYER'S INITIALS:
4. Sale of Property to Moderate Income Household at Affordable Housing Cost.
4.1 Forty-Five (45) Year Affordability Requirements. During the
Affordability Period, the Property may be sold only to Eligible Persons and Families at an
Affordable Housing Cost with the Agency's prior written approval. These requirements shall be
set forth in an Affordable Housing Resale Restriction (Conditions, Covenants, and Restrictions
Affecting Real Property and the Resale, Ownership, Occupancy, Maintenance, and Other
Matters Related to Real Property), in the form that is attached hereto as Exhibit "13" and
incorporated herein by this reference. The Affordable Housing Resale Restriction permits
Homebuyer, in Homebuyer's sole discretion, through an event of acceleration pursuant to
Section l.f., to transfer the Property at a price in excess of an Affordable Housing Cost during
the Affordability Period, upon payment of the Contingent Equity Participation Amount as set
forth in Section 3 hereof.
ATTACHMENT NO. 11-9
Form of Homebuyer Loan Agreement
D O C S O 01400673 v 141200272-0001
80A-416
4.2 Verification of Prospective Buyer's Income. In order to verify the
prospective Buyer's status as a Moderate Income Household, the Homebuyer shall submit or
cause the proposed Buyer to submit to the Agency the identity of the proposed Buyer and
adequate information evidencing the income and household size of the proposed Buyer.
a. Gross income and net income of the prospective Buyer's
household shall be determined in accordance with Health & Safety Code Section 50093 and the
provisions of Sections 6914 and 6916 of Title 25 of the California Code of Regulations. The
prospective Buyer shall submit a certification that such Buyer is a Moderate Income Household
and meets the eligibility requirements established for the Property and that the Property will be
sold at an Affordable Housing Cost by Homebuyer to such prospective Buyer.
(i) Income information shall be submitted together with the
notice of proposed sale in accordance with Section 2 not less than thirty (30) days prior to the
opening of escrow for the proposed sale and shall include original or true copies of pay stubs,
income tax records or other financial documents in order that the Agency may review the
household income of the proposed Buyer to determine whether the proposed Buyer is a Moderate
Income Household and whether the Property is to be transferred to such Buyer at an Affordable
Housing Cost. If the Agency is unable to verify Buyer's income as provided herein prior to the
proposed sale, then the Buyer's income shall be deemed to exceed the maximum allowable
income limit for Eligible Persons and Families.
4.3 Affordable Housing Cost. The Property shall be resold by the
Homebuyer to the Buyer at an "Affordable Housing Cost" that shall mean the pricing for
Moderate Households and shall be calculated pursuant to California Health & Safety Code
Section 50052.5, the implementing regulations of Sections 6920, 6924 and 6930 of Title 25 of
the California Code of Regulations for Moderate Income Households,
5. Release of Affordability. After the Affordability Period Termination Date, the
Property shall no longer be subject to the affordability requirements of this Agreement and the
Affordable Housing Resale Restriction, and the Homebuyer may sell or transfer the Property to
any person, regardless of the person's income status, at the Property's fair market value.
6. Maintenance of Property. The Homebuyer shall maintain the interior of the
Property (a) in a clean, safe and presentable manner, (b) consistent with community standards,
(c) in a manner which will uphold the value of the Property, (d) in accordance with the
maintenance requirements of the Affordable Housing Resale Restriction, (e) in accordance with
the Santa Ana Municipal Code and the Uniform Housing Code, and (f) in accordance with any
and all covenants and agreements established by any homeowner's association or other
regulatory entity recognized by area property owners. The Homebuyer shall not allow the
Property to accumulate debris, or allow inoperable or abandoned vehicles on the Property, or
allow any other unsightly or dangerous conditions on the Property. The covenants for the
maintenance of the Property shall run with the Property and shall remain in effect until the
Affordability Period Termination Date. The Homebuyer and the Agency shall execute and
record the Affordable Housing Resale Restriction against the Property in the Official Records of
Orange County, California. The Homebuyer also agrees to comply with all applicable federal,
state and local laws.
ATTACHMENT NO. 11-10
Form of Homebuyer Loan Agreement
DOCSOC/1 400673v 141200272-0001
80A-417
7. Occupancy Standards. The Property shall be used as the principal personal
residence of the Homebuyer and the Homebuyer's immediate family and for no other purpose.
The Homebuyer shall not enter into an agreement for the rental or lease of all or any part of the
Property. The Homebuyer shall not rent out a room or rooms in the Property. The Homebuyer
may request a temporary waiver of the foregoing requirement in the event of extreme hardship
requiring the Homebuyer to move to another geographical area or to less expensive housing,
including, for example and without limitation, transfer of job location, loss of job, or unexpected
major expenses. The Agency may approve or disapprove such request in its sole discretion, and
may require as a condition of approval that the Homebuyer only rent the Property to Eligible
Persons and Families, subject to the maximum affordable rent limit applicable to Moderate
Income Households as set forth in Health & Safety Code Section 50053. The Homebuyer shall,
upon demand by the Agency, submit to the Agency an affidavit of occupancy verifying the
Homebuyer's compliance with this Section 7. Such affidavit may be required by the Agency on
an annual basis.
8. Income Certification. The Homebuyer has submitted an application and
additional information verifying income eligibility to the Developer and the Agency prior to
execution of this Agreement. The Homebuyer represents, warrants, and declares under penalty
of perjury to the Agency that all information the Homebuyer has provided and will provide in the
future to the Developer and the Agency is and will be true, correct and complete. The
Homebuyer acknowledges that the Agency is relying upon the Homebuyer's representations as
to income, household size, assets and other information to determine whether the Homebuyer is a
Moderate Income Household and the Agency would not have entered into this Agreement if the
Homebuyer did not so qualify. In the event that the Agency discovers that any of such
information is materially untrue, the Agency may declare the Homebuyer Assistance Loan and
the Contingent Equity Participation Amount, if any, immediately due and payable.
9. Monthly Housing Cost Information. The Homebuyer's anticipated Monthly
Housing Costs at the time of this Agreement, and at the time of Homebuyer's acquisition of the
Property, must not exceed Affordable Housing Cost, determined as follows:
9.1 Affordable Housing Cost - Moderate Income Household. The
Homebuyer (and all successors thereto during the 45-year Affordability Period) shall be a
Moderate Income Household as defined in Health & Safety Code Sections 50052.5 and 50093
(or successor statutes) and the implementing regulations thereto promulgated by the Housing and
Community Development Department of the State of California. "Affordable Housing Cost"
means the purchase price for Moderate Income Households pursuant to California Health &
Safety Code Section 50052.5, the implementing regulations of Sections 6920, 6924 and 6930 of
Title 25 of the California Code of Regulations for Moderate Income Households,
10. Co-Signers and Co-Mortgagors. The income of individuals who sign only the
Note ("co-signers") and individuals who sign both the Note and the grant deed ("co-
mortgagors") will be included for determining whether the Homebuyer is a Moderate Income
Household. All such co-signers and co-mortgagors must be part of the Homebuyer's household
and must reside in the Property. Non-occupants of the Property may not serve as co-signers or
co-mortgagors, nor may such individuals hold title to or any other property interest in the
Property.
ATTACHMENT NO. 11-11
Form of Homebuyer Loan Agreement
DOCSOG1400673v141200272-0001
80A-418
11. Married Sole and Separate Property. An individual taking title to the Property
as contemplated by this Agreement is subject to special requirements because of California
community property laws and Federal tax laws. If the Homebuyer is legally separated, or has
filed for divorce and a legal property disposition agreement exists between the Homebuyer and
the Homebuyer's spouse, a quitclaim deed from the Homebuyer's spouse and a copy of the
property disposition agreement may be required by the Agency. In the absence of an existing
legal property disposition agreement between the Homebuyer and the Homebuyer's spouse, as a
condition of approval of the Homebuyer Assistance Loan, a quitclaim deed, a special agreement
and a release of interest signed by both the Homebuyer and the Homebuyer's spouse, after
consultation with an attorney, may be required by the Agency. Additionally, if the Homebuyer's
spouse is to reside in the Property, the combined income of the Homebuyer and the Homebuyer's
spouse must be included in the income test for eligibility under the Program.
12. Loan Servicing. The Agency may contract with an outside organization to
originate and service the Homebuyer Assistance Loan.
13. Homebuyer Financing. The Homebuyer shall obtain First Lien purchase money
mortgage financing which is a fixed rate and fully amortizing loan for its acquisition of the
Property from a reputable institutional lender reasonably acceptable to the Agency (the
"Lender"). The Homebuyer shall at all times during the term of Homebuyer Assistance Loan
comply with all requirements of the Lender, including without limitation, loan underwriting
standards, minimum down payment requirements, private mortgage insurance requirements,
homebuyer education requirements, and tax and insurance impound requirements. In addition,
not less than three percent (3%) of the purchase price of the Property shall be paid in cash from
the Homebuyer's own resources and not from the proceeds of a loan secured by a lien on the
Property, and gifts and seller concessions may not be used to meet this requirement, except as
otherwise permitted by the Lender. The total amount of the First Lien mortgage loan and
Homebuyer Assistance Loan (in addition to other affordable housing loans or grants described in
Section 3.1) shall not exceed the sum of the fair market value of the Property at the time of the
Homebuyer's purchase of the Property and non-recurring closing costs.
14. Subordination. Except as provided otherwise herein, the provisions of this
Agreement, the Notice of Affordability Restrictions, the Agency Deed of Trust, and the
Affordable Housing Resale Restriction, and the obligations therein, shall be subordinate only to
the First Lien on the Property held by the Lender and, if applicable, other loan(s) as approved by
the Executive Director, including lien instruments that secure other homebuyer purchase money
and/or downpayment assistance, including without limitation City, State of California. or federal
affordable housing programs, which liens shall not impair the rights of the Lender, or the
Lender's assignee or successor in interest or the Agency, if applicable, to exercise their remedies
under the First Lien in the event of default under the First Lien by the Homebuyer. Such
remedies under the First Lien include the right of foreclosure or acceptance of a deed or
assignment in lieu of foreclosure. If title to the Property is transferred by foreclosure or
acceptance of a deed in lieu of foreclosure, or assignment of the First Lien to the Secretary of the
Department of Housing and Urban Development, this Agreement and the Agency Deed of Trust
shall be automatically terminated and shall have no further effect as to the Property or any
transferee thereafter. However, in no event shall this Agreement, the Agency Deed of Trust, and
the Affordable Housing Resale Restriction, be subordinate to any First Lien on the Property
ATTACHMENT NO. 11-12
Form of Homebuyer Loan Agreement
DOCSOG1400673v 14200272-0001
80A-419
securing a loan with provisions which allow negative amortization, or to refinancing of the First
Lien for a loan amount in excess of the sum of the then current loan balance secured by the First
Lien and loan closing costs.
14.1 Order of Recording. The Homebuyer agrees it shall instruct the Escrow
Agent for the acquisition of the Property by the Homebuyer that the order of recording in the
escrow for the purchase of the Property by Homebuyer shall occur as follows: (1) the Grant
Deed, (2) the First Lien; (3) other affordable housing loan(s) as described in Section 3. 1, as
permitted by the Executive Director; (4) the Affordable Housing Resale Restriction; (5) Notice
of Affordability Restrictions and (6) the Agency Deed of Trust. The Agency shall cause a
Request for Notice of Default to be recorded on the Property subsequent to the recordation of the
First Lien deed of trust or mortgage requesting a statutory notice of default as set forth in the
California Civil Code Section 2924b, and shall cause a request for Notice of Delinquency to be
recorded on the Property subsequent to the recordation of the First Lien deed of trust or
mortgage.
15. Indemnification. The Homebuyer shall pay for, defend, indemnify, and hold
harmless the Agency and the City and their respective officers, agents, employees,
representatives and volunteers from and against any loss, liability, claim or judgment relating in
any manner to the Property or this Agreement. The Homebuyer shall remain fully obligated for
the payment of property taxes, liens, and assessments related to the Property. There shall be no
reduction in taxes for the Homebuyer, nor any transfer of responsibility to the Agency to make
such payments, by virtue of the Homebuyer Assistance Loan.
16. Insurance. The Homebuyer shall maintain, during the term of the Homebuyer
Assistance Loan, an all-risk property insurance policy insuring the Property in an amount equal
to the full replacement value of the structures on the Property. The policy shall name the Agency
and the City as loss payees and shall contain a statement of obligation on behalf of the carrier to
notify the Agency of any material change, cancellation or termination of coverage at least thirty
(30) days in advance of the date of such material change, cancellation or termination. The
Homebuyer shall transmit a copy of the certificate of insurance and loss payee endorsement to
the Agency within thirty (30) days of the effective date of this Agreement, and upon request by
the Agency, the Homebuyer shall transmit to the Agency further copies of the certificate of
insurance and a loss payee endorsement. The copy of the certificate of insurance and loss payee
endorsement shall be transmitted to the Agency at the address set forth in Section 29. The form,
content, issuer of any certificate of insurance must be reasonably acceptable to the Agency.
17. Defaults. Failure or delay by either party to perform any term or provision of this
Agreement which is not cured within thirty (30) days after receipt of notice from the other party
constitutes a default under this Agreement; provided, however, that if such default is of the
nature requiring more than thirty (30) days to cure, the defaulting party shall avoid default
hereunder by commencing to cure within such thirty (30) day period, and thereafter diligently
pursuing such cure to completion. The party who so fails or delays must immediately commence
to cure, correct, or remedy such failure or delay, and shall complete such cure, correction or
remedy with diligence. The injured party shall give written notice of default to the party in
default, specifying the default complained of by the injured party. Except as required to protect
against further damages, the injured party may not institute proceedings against the party in
ATTACHMENT NO. 11-13
Form of Homebuyer Loan Agreement
DOCS 00 1400673 v 14/200272-0001
80A-420
default until thirty (30) days after giving such notice. Failure or delay in giving such notice shall
not constitute a waiver of any default, nor shall it change the time of default. Notwithstanding
the foregoing, for purposes of acceleration of the Homebuyer Assistance Loan, payment of the
Note Amount including the Contingent Equity Participation Amount, or initiation of foreclosure
proceedings, there shall be a distinction between the types of default hereunder, including an
"Ownership Default" and a "Maintenance Default".
17.1 Ownership Default. The term "Ownership Default" means the failure of
the Homebuyer to perform any action or covenant required by the Affordable Housing Resale
Restriction related to ownership, owner-occupancy, lien priority, and restrictions on sale and
resale of the Property, subject to notice and an opportunity to cure as set forth herein. A default
of any obligation secured by the First Lien shall be a cross-default and also constitute an
Ownership Default.
17.2 Maintenance Default. The term "Maintenance Default" means the
failure of the Homebuyer to perform any action or covenant required by the Affordable Housing
Resale Restriction relating to a "Maintenance Deficiency," including the ongoing upkeep,
maintenance, and use of the Property in a decent, safe, sanitary, clean, and neighborly manner,
subject to notice and an opportunity to cure as set forth herein (and expressly excluding an
Ownership Default).
13. Remedies. The Agency shall be entitled to all legal and equitable remedies
available under the law upon the default of the terms of this Agreement by the Homebuyer. Such
remedies may include, without limitation, (a) specific performance of the terms of this
Agreement, (b) disgorgement of any amount of consideration received for the Property that
exceeds an Affordable Housing Cost, and/or (c) an order to pay attorneys' fees, as set forth in
Section 30.
19. Non-Waiver. Failure to exercise any right the Agency may have or be entitled to,
in the event of default hereunder, shall not constitute a waiver of such right or any other right in
the event of a subsequent default.
20. Documents. The Homebuyer is aware that the Agency has prepared certain
documents to implement the Program and secure repayment of the Homebuyer Assistance Loan.
The Homebuyer has reviewed and agrees to execute the following documents in substantially the
form as attached hereto prior to receiving the Homebuyer Assistance Loan, and any other
documents reasonably required by the Agency or a participating entity to complete the
transaction contemplated herein:
a. Promissory Note;
b. Agency Deed of Trust;
C. Affordable Housing Resale Restriction;
d. Reimbursement Agreement, substantially in the form of Exhibit
"E" attached hereto and fully incorporated by this reference;
ATTACHMENT NO. 11-14
Form of Homebuyer Loan Agreement
DOCSOC/ 1400b73v14200272-0001
80A-421
e. Disclosure Statement substantially in the form of Exhibit "F'
attached hereto and fully incorporated by this reference; and
E Notice of Affordability Restrictions, substantially in the form of
Exhibit "G" attached hereto and fully incorporated by this reference.
The Homebuyer agrees and acknowledges that the Agency Deed of Trust, the
Notice of Affordability Restrictions, and the Affordable Housing Resale Restriction shall be
recorded against the Property with the County Recorder of the County of Orange and shall
appear of record with respect to and as encumbrances to the Property. The Homebuyer agrees
that this Agreement may also be recorded.
21. Further Assurances. The Homebuyer shall execute any further documents
consistent with the terms of this Agreement, including documents in recordable form, as the
Agency shall from time to time find necessary or appropriate to effectuate its purposes in
entering into this Agreement and making the Homebuyer Assistance Loan.
21 Governing Law. The Homebuyer hereby agrees to comply with all ordinances,
rules, and regulations of the City. Nothing in this Agreement is intended to be, nor shall it be
deemed to be, a waiver of any City ordinance, rule, or regulation. This Agreement shall be
governed by the laws of the State of California. Any legal action brought under this Agreement
must be instituted in the Superior Court of the County of Orange, State of California or in the
United States District Court, Central District of California, Santa Ana Division.
23. Amendment of Agreement. No modification, rescission, waiver, release or
amendment of any provision of this Agreement shall be made except by a written agreement
executed by the Homebuyer and the Agency.
24. Agency May Assign. The Agency may, at its option, assign or pledge its right to
receive repayment of the Homebuyer Assistance Loan proceeds without obtaining the consent of
the Homebuyer.
25. Homebuyer Assignment Prohibited. In no event shall the Homebuyer assign or
transfer any portion of this Agreement without the prior express written consent of the Agency,
pursuant to the procedures set forth in Section 4. In the event of an Ownership Default and
acceleration of the Homebuyer Assistance Loan, the full amount shall be due, including the
Contingent Equity Participation Amount.
26. Relationship of Homebuyer and Agency. The relationship of the Homebuyer
and the Agency pursuant to this Agreement is that of debtor and creditor and shall not be, or be
construed to be, ajoint venture, equity venture, partnership, or other relationship.
27. Monitoring. To the extent permitted by law, the Agency and its designated
employees and agents shall have the right to enter the Property at all reasonable times without a
warrant for the purpose of monitoring the Homebuyer's compliance with this Agreement. Any
such entry shall be made only after reasonable notice to the Homebuyer, which shall mean at
least forty-eight (48) hours in all non-emergency situations. Upon receipt of such notice, the
Homebuyer agrees to consent to entry by the Agency and to cooperate in making the Property
ATTACHMENT NO. 11-15
Form of Homebuyer Loan Agreement
D O C S O CA 400 673 v 141200272-0001
80A-422
available for inspection by the Agency. The Homebuyer acknowledges and agrees that if for any
reason the Homebuyer fails to consent to such entry or inspection, the Agency may obtain an
administrative inspection warrant or take such other legal actions as may be necessary to gain
access to and inspect the Property. The Agency shall indemnify and hold harmless the
Homebuyer from any costs, claims, damages or liabilities pertaining to any such entry.
28. Notices. Any notices, requests or approvals given under this Agreement from one
party to another may be personally delivered or deposited with the United States Postal Service
for mailing, postage prepaid, registered or certified mail, return receipt requested to the following
address:
To Homebuyer
To Agency: Community Redevelopment Agency
of the City of Santa Ana
20 Civic Center Plaza
Santa Ana, California 92701
Attention: Executive Director
Hither party may change its address for notice by giving written notice thereof to
the other party.
29 Attorneys' Fees and Costs. Should either of the parties to this Agreement incur
attorneys' fees in seeking the enforcement of this Agreement, whether or not a final court
judgment is entered, the prevailing party shall be entitled to reimbursement of its reasonable
attorneys' fees and litigation costs, including without limitation expert witness fees, by the other
party.
30. Entire Agreement. This Agreement, together with all attachments hereto,
constitutes the entire understanding and agreement between the Agency and the Homebuyer.
This Agreement integrates all of the terms and conditions mentioned herein or incidental thereto,
and supersedes all prior negotiations, discussions and previous agreements between the Agency
and the Homebuyer concerning all or any part of the subject matter of this Agreement.
[Signature block begins on follow page.]
ATTACHMENT NO. 11-16
Form of Homebuyer Loan Agreement
D OCS OG 1400673 v 141200272-0001
80A-423
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth in the first paragraph of this Agreement.
HOMEBUYER:
Printed
Printed Name:
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, a public body,
corporate and politic
By:
Cynthia J. Nelson
Executive Director
ATTEST:
Maria D. Huizar, Clerk of the Council
APPROVED AS TO FORM:
Stradling Yocca Carlson & Rauth,
Agency Special Counsel
ATTACHMENT NO. 11-17
Form of Homcbuyer Loan Agreement
DOCSOU 1400671 v 14/200272-0001
80A-424
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
[to be inserted)
EXHIBTI- A TO ATTACHMENT NO. I I
Legal Description of Property
DOCSOCI 1400673v 14/200272-0001
80A-425
EXHIBIT "B"
PROMISSORY NOTE SECURED BY DEED OF TRUST
NOTICE TO MAKER: CONTINGENT EQUITY PARTICIPATION AMOUNT
SHALL BE DUE AND PAYABLE IF CERTAIN EVENTS
OCCUR
$ Santa Ana, California
.2Q-
Property Address:'
City State Zip Code
FOR VALUE RECEIVED, the undersigned (the "Maker" or "Homebuyer") promises to
pay to the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA
ANA, a public body, corporate and politic (the "Holder" or "Agency") at 20 Civic Center Plaza,
Santa Ana, California 92701, or at such other address as the Holder may direct from time to time
in writing, the sums specified in the terms and provisions of this Promissory Note as the "Note
Amount".
1. Loan Agreement. This Promissory Note Secured by Deed of Trust (this "Note")
is made and delivered pursuant to and in implementation of the Homebuyer Loan Agreement
entered into by and between the Holder and the Maker dated 20
("Agreement'), a copy of which is on file as a public record with the Holder. The Agreement is
incorporated herein by this reference. The Maker acknowledges that but for the execution of this
Note, the Holder would not enter into the Agreement or make the loan contemplated therein.
Unless definitions of terms have been expressly set out at length herein, each term shall have the
same definition as set forth in the Agreement.
2. Term. The term of the Note shall be forty-five (45) years from the Homebuyer
Assistance Loan Date ("Term").
3. Note Amount. The sums due and payable pursuant to the terms and provisions of
this Note consist of both the Homebuyer Assistance Loan Amount and the Contingent Equity
Participation Amount, as both terms are hereinafter defined (collectively, the "Note Amount').
As one component of the Note Amount, Maker shall pay to the Agency the principal amount of
Dollars ($ ) (the "Homebuyer Loan
Amount'), with zero percent (0%) interest thereon, subject to subsection (a) below.
(a) Contingent Equity Participation Amount. As a second component of
the Note Amount, the Maker shall pay to the Agency, together with the whole of the Homebuyer
Assistance Loan Amount, the Contingent Equity Participation Amount as set forth in Section 7.
EXHIBIT B-1 TO ATTACHMENT NO. 11
Promissory Note
DOCSOC/1400673v 141200272-0001
80A-426
4. Homebuyer Assistance Loan Amount; Interest Deferred Until Acceleration.
The Homebuyer Assistance Loan Amount shall accrue zero percent (0%) interest unless and
until an event of acceleration occurs as set forth in Section 6, in which event a Contingent Equity
Participation Amount as described in Section 7 shall become due and payable by the Maker.
5. Homebuyer Assistance Loan Amount; Time of Payment and Forgiveness.
No repayment of the Homebuyer Assistance Loan Amount shall be required unless and until the
Note Amount becomes due and payable, as provided in subparagraph (f) below. In the event that
the Homebuyer Assistance Loan Amount does not become due and payable prior to the
forty-fifth (45th) Anniversary of the date of this Promissory Note, the full amount of the
Promissory Note shall be forgiven, and there shall be no further obligations hereunder.
6. Acceleration. The whole of the Note Amount and all other payments due
hereunder and under the Agreement shall become due and be immediately payable to the Holder
by the Maker upon the occurrence of any one of the following events of acceleration:
(a) the sale or transfer of the Property (or any part thereof) by any means,
including, without limitation, the lease, exchange or other disposition of the Property or any
interest therein, whether voluntary or involuntary, except (A) a sale of the Property to a qualified
Moderate Income Household at an Affordable Housing Cost with the Agency's prior written
approval accomplished in strict conformity with Section 4 of the Agreement, or (B) the transfer
of the Property solely as a result of the marriage, divorce, incompetence or death of one or more
individuals constituting the Homebuyer, so long as the transferee(s) give written notice
supported by reasonable evidence of such event to the Agency within thirty (30) days of its
occurrence and the transferee(s) assume(s) the Homebuyer's obligations under the Agreement,
by execution of an assignment and assumption agreement to be provided by the Agency, or (C) a
sale or transfer which under federal law would not, by itself, permit the Agency to exercise a due
on sale or due on encumbrance clause;
(b) the Maker refinances any purchase money lien or encumbrance to which
the Agency Deed of Trust is subordinate (each such lien, a "First Lien") for a loan amount in
excess of the then current loan balance secured by such lien or encumbrance and loan closing
costs; and/or
(c) the Maker (and all co-signors and co-mortgagors, if any) fails to own and
occupy the Property as their principal residence pursuant to Section 7 of the Agreement or is in
Ownership Default as defined in Section 18 of the Agreement.
At the request of the Maker, and for a specific occasion, the Holder may, in its
sole and absolute discretion, in writing waive the requirements of these subparagraphs and defer
repayment and/or extend the term of this Note. Any waiver or deferment shall be on a case by
case basis, and no future rights for waiver or deferment shall arise or be implied.
Notwithstanding the foregoing, the Maker may, upon prior written approval by the Holder,
refinance any First Lien for a loan amount equal to or less than the then current loan balance
secured by such First Lien.
EXHIBIT B-2 TO ATTACHMENT NO. 11
Promissory Note
DOCSOG 1400673x14/200272.0001
80A-427
7, Contingent Equity Participation Amount. If an event of acceleration occurs as
described in Section 6, and the Maker is not selling the Property pursuant to Section 4 of the
Agreement, the Maker shall pay to the Holder, the whole of the Homebuyer Assistance Loan
Amount and the "Contingent Equity Participation Amount," as hereinafter defined. If the
Homebuyer is selling the Property to an Eligible Person and Family at an Affordable Housing
Cost with the Agency's prior written approval, in accordance with the requirements of Section 9
hereunder and Section 4 of the Agreement, then no Contingent Equity Participation Amount
shall be required hereunder in connection with such sale.
(a) Calculation of Contingent Equity Participation Amount. The
"Contingent Equity Participation Amount" means an amount equal to a percentage share of the
appreciation of the Property determined by multiplying a variable percentage factor (the
"Variable Applicable Factor") by the difference between the Sales Price and the Purchase Price
(as those terms are hereinafter defined).
(b) Variable Applicable Factor Calculation. The Variable Applicable
Factor shall be calculated by dividing the Agency's total initial equity contribution (the "Agency
Contribution") by the sum of the Agency Contribution plus the Homebuyer's contribution (the
"Homebuyer Contribution"). In other words, the Agency Contribution shall be the numerator,
and the sum of the Agency Contribution plus the Homebuyer Contribution shall be the
denominator of a fraction that equals a percentage that is the Variable Applicable Factor (subject
to Section (7(b)(i)).
Variable Applicable Factor = Agency Contribution
Agency Contribution+ Homebuyer Contribution
For example, if the Agency Contribution equals $30,000 and the Homebuyer
Contribution equals $250,000, the Variable Applicable Factor would equal 10.7% ($30,000
divided by the sum of $30,000 plus $250,000).
10.7% (Variable Applicable Factor) = $30.000 (Agency Contribution)
$30,000 (Agency Contribution) + $250,000 (Homebuyer
Contribution) = ($280,000)
(i) The "Agency Contribution" is the sum of the following amounts
contributed by the Agency to the purchase price of the Property (i) principal amount of the
Homebuyer Assistance Loan, i.e., the Affordable Housing Cost Subsidy (as hereinafter defined);
and (ii) the principal amount(s) of any other loan(s) or subsidy(ies) provided by the Agency.
(ii) The "Homebuyer Contribution" is the sum of the following
amounts contributed by the Homebuyer to the purchase price of the Property: (i) the principal
amount of the First Lien loan; (ii) the Homebuyer's cash down payment plus the Homebuyer's
portion of closing costs; and (iii) the original principal amount of loans(s) or other subsidy(ies)
EXHIBIT B-3 TO ATTACHMENT NO. I 1
Promissory Note
DOCSOC/ 1400673v 141200272-0001
80A-428
secured by the Homebuyer, (excluding and other than loan(s) or subsidy(ies) provided by the
Agency (as set forth in the definition of the Agency Contribution)) and applied by the
Homebuyer towards the purchase of the Property.
(iii) The "Purchase Price" is the original purchase price paid by the
Homebuyer (or the Homebuyer as the qualified successor owner of the Property) to the seller of
the Property (the "Seller") (generally this amount shall be equal to the original fair market value
of the Property at the time of the initialloriginal sale of the Property by the Developer to the
Homebuyer) for the Seller's interest in the Property, exclusive of escrow fees, title insurance
costs, broker's commissions, loan fees or any other closing or transaction costs. Subject to the
provisions set forth hereinbelow, the value of Qualified Capital Improvements shall be added to
the Purchase Price when calculating the Contingent Equity Participation Amount.
(iv) The "Sales Price" is the price to be paid by the prospective buyer
(who is not a qualified Moderate Income Homebuyer) of the Property (the "Buyer") to the
Homebuyer (or the Homebuyer as the qualified successor owner of the Property) for the
Homebuyer's interest in the Property, exclusive of reasonable escrow fees, title insurance costs,
broker's commissions, loan fees or any other closing or transaction costs. The Sales Price shall
be established in conformity with Section 7(I)(i). In the event of the Homebuyer's refinancing,
failure to occupy, or an Ownership Default, the "Sales Price" shall be established in conformity
with Section 7(I)(ii).
(v) The "Affordable Housing Cost Subsidy" is the amount deemed to
be a subsidy from the Agency provided to the Homebuyer by making the Property available for
purchase at a price that constitutes an Affordable Housing Cost for Homebuyer as a Moderate
Income Household. The Affordable Housing Cost Subsidy equals the difference between the
appraised fair market value of the Property as of the date of the Agreement and the Affordable
Housing Cost.
(c) Exception Calculation. Notwithstanding the above, the Variable
Applicable Factor shall equal the rg eater of fifty percent (509o) or the Variable Applicable Factor
calculated pursuant to Section 7(b); provided however, in the event Maker receives a First Lien
loan from the California Finance Agency or a First Lien loan the source of proceeds of which are
from tax exempt bonds, then the Variable Applicable Factor shall equal the Variable Applicable
Factor percentage calculated pursuant to Section 7(b).
(d) Using the Variable Applicable Factor to Determine the Contingent
Equity Participation Amount. The Contingent Equity Participation Amount is calculated by
multiplying the Variable Applicable Factor by the difference between the Sales Price and the
Purchase Price. For example, if the Variable Applicable Factor equals 10.7%, the Contingent
Equity Participation Amount would then equal 10.7% (Variable Applicable Factor) x (Sales
Price minus the Purchase Price).
In the above example, if the Sales Price (to occur upon resale not conforming to
Section 4 of the Agreement) equals $380,000 and the Purchase Price equals $280,000, the
Contingent Equity Participation Amount would equal $10,700 (10.7% x ($380,000 minus
$280,000)).
EXHIBIT 134 TO ATTACHMENT NO. 11
Promissory Note
DOCSOC/I 400673v14/200272-0001
80A-429
10.7% (Variable Applicable Factor) x $100,000 (Safes Price - Purchase Price) _ $10,700 (Contingent
Equity Participation Amount).
(e) Calculation of Contingent Equity Participation Amount for
Subsequent Homebuyers. If pursuant to Section 4 of the Agreement and Section 9 of this Note,
a Buyer has fully assumed the Homebuyer's obligations under the Agreement, this Note, the
Agency Deed of Trust, Notice of Affordability Restrictions and the Affordable Housing Resale
Restriction, and thereafter the new Buyer, as the successor Homebuyer, is in Ownership Default
which causes an event of acceleration to occur, the Contingent Equity Participation Amount to
be paid by such Buyer shall be calculated by multiplying the Variable Applicable Factor,
established in Section 7(b), by the difference between the Sales Price, established in conformity
with Section 7(i), and the Purchase Price.
(f) No Appreciation or Depreciation in Value of Property. If an event of
acceleration occurs at a time when the Property has not appreciated or the value of the Property
has depreciated (the Sales Price is less than the Purchase Price), then no Contingent Equity
Participation Amount is due by Maker to Holder.
(g) Qualified Capital Improvements. The value of any Qualified Capital
Improvements completed by Maker during Maker's ownership of the Property shall be added to
the Purchase Price when calculating the Contingent Equity Participation Amount only if, not
later than thirty (30) days prior to the event of acceleration causing the Contingent Equity
Participation Amount to become immediately due and payable pursuant to Section 6, the Maker
submits the following to the Holder: (i) an itemized list of the Qualified Capital Improvements,
(ii) reliable proof of completion of the Qualified Capital Improvements (as evidenced, e.g., by
final building permits, a certificate of completion or original paid invoices or construction
contracts), and (iii) an appraisal from a certified appraiser, in form and substance reasonably
acceptable to the Executive Director, the conclusion of which is that the Qualified Capital
Improvements have added the stated amount to the fair market value of the Property.
If, within thirty (30) days of receipt of the information concerning the Qualified
Capital Improvements, the Holder questions the claimed increase in the value of the Property by
reason of said Qualified Capital Improvements, the Holder and the Maker may, by mutual
agreement, establish the value of the Qualified Capital Improvements or the Holder may require
an appraisal of the Property, at the Maker's expense, by a second independent certified appraiser
appointed by the Holder to determine the fair market value of the Qualified Capital
Improvements.
(h) Credit to Maker. Notwithstanding the foregoing provisions of this
Section 7, calculation of the Contingent Equity Participation Amount is subject to a superior
right of the Maker to receive credit in calculation of the Purchase Price for money paid by the
Maker post acquisition and during the term of the Maker's ownership of the Property for
installment payments of mortgage principal, pursuant to the First Lien actually made by the
EXHIBIT B-5 TO ATTACHMENT NO. I1
Promissory Note
ROCS OG 1400673 v 14200272.0001
80A-430
Maker, in addition to the fair market value of Qualified Capital Improvements consistent with
the requirements of Section 7(g) hereof.
(1) Determination of Sales Price; Appraisal.
(i) Upon Sale of the Property. In the event of a proposed sale of the
Property by the Homebuyer that does not conform to Section 9 and not less than thirty (30) days
after the Holder receives actual notice of the opening of escrow in connection therewith, the
Holder may elect to appoint a certified, independent appraiser to conduct an appraisal of the
Property, at the Maker's expense, to assist the Holder in determining if the Sales Price is at or
near the fair market value of the Property at such time. If the Sales Price is determined by the
appraisal to be three percent (3%) or more below the fair market value of the Property as
estimated in said appraisal, then the "Sales Price" for purposes of determining the Contingent
Equity Participation Amount shall be the fair market value of the Property established in said
appraisal.
(ii) Upon Refinancing/Failure to Occupy/Default. In the event of
refinancing, failure to occupy the Property in accordance with Section 7 of the Agreement, or an
Ownership Default or breach of any provision of the Agreement which causes the Contingent
Equity Participation Amount to become immediately due and payable, the "Sales Price' for
purposes of determining the Contingent Equity Participation Amount shall be determined by an
appraisal of the Property. The Holder shall appoint a certified independent appraiser to conduct
an appraisal of the Property, at the Maker's expense. The Maker agrees that in such event the
Contingent Equity Participation Amount shall be the Variable Applicable Factor multiplied by
the difference between the Purchase Price and "Sales Price" as established by the appraised value
of the Property at the time of such refinancing, failure to occupy, or default under the
Agreement.
8. Maker's Acknowledgment of Contingent Equity Participation Amount.
MAKER ACKNOWLEDGES AND AGREES THAT UPON
SALE, TRANSFER OR REFINANCING OF THE
PROPERTY THAT DOES NOT COMPLY WITH SECTION
9, AND/OR UPON ANY OTHER DEFAULT THAT CAUSES
AN EVENT OF ACCELERATION AS SET FORTH IN
SECTION 6 HEREOF, MAKER SHALL PAY TO HOLDER
(IN ADDITION TO THE AGENCY LOAN AMOUNT), A
CONTINGENT EQUITY PARTICIPATION AMOUNT
EQUAL TO A PERCENTAGE SHARE OF THE
APPRECIATION OF THE PROPERTY AS CALCULATED
PURSUANT TO SECTION 7.
MAKER/HOMEBUYER'S INITIALS:
9. Sale to Moderate Income Household at Affordable Housing Cost. During the
Affordability Period, the Note will not become due and payable, and no Contingent Equity
Participation Amount shall be required hereunder in connection with such sale, if the Maker sells
EXHIBIT B-6 TO ATTACHMENT NO. 11
Promissory Note
DOGS OG 1400673 v1 4200272-0001
80A-431
or otherwise conveys the Property to Eligible Persons and Families, and the purchaser assumes
this Note and the Agreement by an assignment and assumption agreement which is reasonably
acceptable to the Holder.
9.1 Affordable Housing Cost - Moderate Income Household. The Maker
has qualified as and each eligible and qualified successor-in-interest to the Maker shall be a
person or family of Moderate Income. The term "Affordable Housing Cost" as used herein and
for each Moderate Income Homebuyer (and all successors thereto during the Affordability
Period) shall be as defined in Health & Safety Code Section 50052.5 (or its successor statute)
and the implementing regulations thereto promulgated by the Housing and Community
Development Department of the State of California; provided, however, that the term Affordable
Housing Cost shall include Monthly Housing Cost as defined in Section 5924 of Title 25 of the
Regulations.
Notwithstanding the provisions of this Section 9.1, if the Property is sold during
the Affordability Period by the Maker to a Moderate Income Household, and the Sales Price does
not exceed an "Affordable Housing Cost" to such Buyer, then so long as the Maker is not in
default (either Ownership Default and/or Maintenance Default) of the Agreement, this Note may
be assumed by the eligible Buyer by an assignment and assumption agreement which is
reasonably acceptable to the Holder. Upon the effective date of such assignment and
assumption, the assigning Maker shall no longer be liable for any further obligations under the
Agreement or this Note that accrue after the date of such assignment and assumption. In order to
verify the Buyer's status as a Moderate Income Household, the Maker shall submit to the Holder
the identity of the proposed Buyer and adequate information evidencing the income and
household size of the proposed Buyer. Said income information shall be submitted together with
the notice of proposed We pursuant to Section 2 of the Agreement not less than thirty (30) days
prior to opening of escrow for the proposed sale and shall include original or true copies of pay
stubs, income tax records or other financial documents in order that the Holder may verify the
household income of the proposed Buyer to determine whether the Buyer is a Moderate Income
Household, and whether the Property is being transferred to such Buyer at an Affordable
Housing Cost. If the Holder is unable to verify the Buyer's income as provided herein prior to
the proposed sale, then the Buyer's income shall be deemed to exceed the maximum allowable
income limit for Eligible Persons and Families.
10. Security for Note. This Note shall be secured by a subordinate deed of trust and
rider thereto of even date herewith encumbering the Property (the "Agency Deed of Trust"),
executed by the Maker, as trustor, in favor of the Holder, as beneficiary.
11. Prepayment of Note. The Maker may prepay this Note to the Holder, provided
that any prepayment must be in full and not in part. Prepayment shall be treated in the same
manner as refinancing of the Property. In any event, the Affordable Housing Resale Restrictions
shall continue in full force and effect, notwithstanding such prepayment.
12. Holder May Assign. The Holder may, at its option, assign its right to receive
payment under this Note without necessity of obtaining the consent of the Maker.
EXHIBIT B-7 TO ATTACHMENT NO. 11
Promissory Note
DOCSOG I400673v 14/200272.0001
80A-432
13. Maker Assignment Prohibited. In no event shall the Maker assign or transfer
any portion of this Note, the Note Amount and/or the Agreement without the prior express
written consent of the Holder, as provided in Section 9.
14. Joint and Several. The undersigned, if more than one, shall be jointly and
severally liable hereunder.
15. Attorneys' Fees and Costs. In the event that any action is instituted to enforce
payment under this Note, the parties agree the non-prevailing party shall be responsible for and
shall pay to the prevailing party all court costs and all attorneys' fees incurred in enforcing this
Note.
16. Amendments. This Note may not be modified or amended except by an
instrument in writing expressing such intention executed by the parties sought to be bound
thereby, which writing must be so firmly attached to this Note so as to become a permanent part
thereof.
17. Maker's Waivers. The Maker waives any rights to require the Holder to:
(a) demand payment of amounts due (known as "presentment"), (b) give notice that amounts due
have not been paid (known as "notice of dishonor"), and (c) obtain an official certification of
nonpayment (known as "protest").
18. Notice. Any notice that must be given to the Maker under this Note shall be
given by personal delivery or by mailing it by certified mail addressed to the Maker at the
Property address above or such other address, as Maker shall direct from time to time in writing.
Failure or delay in giving any notice required hereunder shall not constitute a waiver of any
default or late payment, nor shall it change the time for any default or payment. Any notice to
the Holder shall be given by certified mail at the address stated above.
19. Successors Bound. This Note shall be binding upon the parties hereto and their
respective heirs, successors and assigns.
20. Effect of Foreclosure. If title to the Property is transferred by foreclosure or
acceptance of a deed in lieu of foreclosure, or assignment of the First Lien to the Secretary of the
Department of Housing and Urban Development, the Agreement, the Affordable Housing Resale
Restriction executed pursuant to the Agreement, Notice of Affordability Restrictions and the
Agency Deed of trust shall be automatically terminated and shall have no further effect as to the
Property or any transferee thereafter.
(Signature block begins on follow page.]
EXHIBIT B-8 TO ATTACHMENT NO. 11
Promissory Note
oocsoCl 140067 3 v 1412OD272-0001
80A-433
IN WITNESS WHEREOF, Maker has executed this Note as of the date set forth below.
MAKER and HOMEBUYER:
Printed
Printed
EXHIBTP B-9 TO ATTACHMENT NO. 11
Promissory Note
DOCSOC1140067 ]v 14/200272-0001
80A-434
EXHIBIT "C"
DEED OF TRUST WITH ASSIGNMENT OF RENTS
RECORDING REQUESTED BY, )
AND WHEN RECORDED MAIL TO: )
Community Redevelopment Agency )
of the City of Santa Ana )
20 Civic Center Plaza )
Santa Ana, California 92702 )
Attn: Executive Director )
This document is exempt from payment of a
recording fee pursuant to Government Code
Sections 27383 and 6103.
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(SHORT FORM)
This DEED OF TRUST is made as of , 20 between
, herein called TRUSTOR, whose address is
TITLE COMPANY, herein called TRUSTEE, and the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate
and politic, herein called BENEFICIARY.
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that property
in the City of Santa Ana, County of Orange, State of California, described as:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF.
together with the rents, issues and profits thereof, subject, however, to the right, power and
authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents,
issues and profits for the purpose of securing (1) that Promissory Note dated
20_, made by Trustor in favor of Beneficiary, and extensions or renewals thereof, in the
principal sum of U.S. $ with interest thereon (including without limitation,
interest in the form of shared appreciation as defined in the Promissory Note as the "Contingent
Equity Participation Amount"), with the balance of the indebtedness, due and payable on
occurrence of an event of acceleration as defined in the Promissory Note, (2) the performance of
each agreement of Trustor incorporated by reference or contained herein, and (3) payment of
additional sums and interest thereon which may hereafter be loaned to Trustor, or his successors
or assigns, when evidenced by a promissory note or notes reciting that they are secured by this
Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the property above
described, Trustor expressly makes each and all of the agreements, and adopts and agrees to
perform and be bound by each and all of the terms and provisions set forth in subdivision A, and
it is mutually agreed that each and all of the terms and provisions set forth in subdivision B of
EXHIBIT C-1 TO ATTACHMENT NO. I1
Deed of Trust with Assignment of Rents
DOCS00 1400673 v141200272-0001
80A-435
the fictitious deed of trust recorded in Orange County August 17, 1964, and in all other counties
August 18, 1964 , in the book and at the page of Official Records in the office of the county
recorder of the county where said proper ty is located, noted below opposite the name of such
county, namely:
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE
Alarneda 1283 556 Kings 858 713 Placer 1028 379 Si.. 38 187
Alpi. 3 130-31 lake 437 110 pha 166 1307 Siskiyou 506 762
Asmdoe 133 438 Ln . 192 367 Risetside 3770 337 Solana 1267 621
Buie 1330 513 Los Angeles 73878 874 S.rn alo 5039 124 so.. 2067 427
Calawrat 185 338 Madero 911 136 San Beeim 300 405 Sunislaus 1970 56
Colo. 323 391 Mann 1849 122 S, Bern rdino 6213 760 Solsc 655 585
Conlin Cosu 4694 1 Mariposa 90 453 S. Fsnaciuo A-804 596 Tchom 457 183
Del None 101 549 Mendocino 667 99 S-Joaquin 2855 283 Trimly 108 595
El Dorado 70.5 635 Muted 1660 753 S, Luis Obispo 1311 137 T.I. 2530 108
Fruoo 5052 623 Modoc 191 93 San M.= 4778 175 Tuolumne 177 160
Glenn 469 76 Moro 69 302 Soon, Bvb. 2065 881 Ventura 2607 237
Humboldt 901 83 Monlemy 557 279 Sams Clara 6626 664 Yolo 769 16
7nperial 1189 701 Nopo 703 742 sanu Cruz 1638 607 You. 398 693
Iuyu 165 672 Nevado 363 W Shasta 9011 633
Kern 3736 690 Orenge 7192 18 Sao Diego 1963 349774
Series 5
shall inure to and bind the parties hereto, with respect to the property above described. Said
agreements, terms and provisions contained in said subdivisions A and B, (identical in all
counties, and printed on pages 3 and 4 hereof) are by the within reference thereto, incorporated
herein and made a part of this Deed of Trust for all purposes as fully as set forth at length herein,
and Beneficiary may charge for a statement regarding the obligation secured hereby, provided
the charge therefor does not exceed the maximum allowed by law.
The undersigned Trustor, requests that a copy of any notice of default and any notice of
sale hereunder be mailed to him at his address hereinbefore set forth.
Trustor
EXHIBIT C-2 TO ATTACHMENT NO. 11
Deed of Trust with Assignment of Rents
DOCSOG1400673v14/200272-0001
80A-436
EXHIBIT "A" TO DEED OF TRUST
LEGAL DESCRIPTION
[to be inserted]
EXHIBIT A-1 TO ATTACHMENT NO. 11
To Deed of Trust With Assignment of Rents
Legal Description
D OC S OC/ 1400673 v I4/200272-0001
80A-437
EXHIBIT "B" TO DEED OF TRUST
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded
in each county in California as stated in the foregoing Deed of Trust and incorporated by
reference in said Deed of Trust as being a part thereof as if set forth at length therein.
A. To protect the security of this Deed of Trust, Truster agrees:
(1) To keep said property in good condition and repair; not to remove or
demolish any building thereon; to complete or restore promptly and in good and workmanlike
manner any building which may be constructed, damaged or destroyed thereon and to pay when
due all claims for labor performed and materials furnished therefor; to comply with all laws
affecting said property or requiring any alterations or improvements to be made thereon; not to
commit or permit waste thereof; not to commit, suffer or permit any act upon said property in
violation of law; to cultivate irrigate, fertilize, fumigate, prune and do all other acts which from
the character or use of said property may be reasonably necessary, the specific enumerations
herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory
to and with loss payable to Beneficiary. The amount collected under any fire or other insurance
policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as
Beneficiary may determine, or at option of Beneficiary, the entire amount so collected or any
part thereof may be released to Truster. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and
expenses, including cost of evidence of title and attorney's attorneys' fees in a reasonable sum,
in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit
brought by Beneficiary to foreclose this Deed.
(4) to pay: at least ten days before delinquency all taxes and assessments
affecting said property, including assessments on appurtenant water stock; when due, all
encumbrances, charges and liens, with interest, on said property or any part thereof, which
appear to be prior or superior hereto; all costs, fees and expenses of this trust.
Should Trustor fail to make any payment or to do any act as herein provided, then
Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon
Truster and without releasing Trustoi from any obligation thereof, may: make or do the same in
such manner and to such extent as either may deem necessary to protect the security hereof,
Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in
and defend any action or proceeding purporting to affect the security hereof or the rights or
powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance,
charge or lien which in the judgment of either appears to be prior or superior hereto; and, in
EXHIBIT B-1 TO ATTACHMENT NO. I1
To Deed of Trust With Assignment of Rents
Non-Recordable Attachment
DOCSOM 400673v 14/200272-0001
80A-438
exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable
fees.
(5) To Pay immediately and without demand all sums so expended by
Beneficiary or Trustee, with interest from date of expenditure at the amount allowed by law in
effect at the date hereof, and to pay for any statement provided for by law in effect at the date
hereof regarding the obligation secured hereby any amount demanded by the Beneficiary not to
exceed the maximum allowed by law at the time when said statement is demanded.
B. It is mutually agreed:
(1) That any award of damages in connection with any condemnation for
public use of or injury to said property or any part thereof is hereby assigned and shall be paid to
Beneficiary who may apply or release such monies received by him in the same manner and with
the same effect as above provided for disposition of proceeds of fire or other insurance.
(2) That by accepting payment of any sum secured hereby after its due date,
Beneficiary does not waive his right either to require prompt payment when due of all other sums
so secured or to declare default for failure so to pay.
(3) That at any time or from time to time, without liability therefor and
without notice, upon written request of Beneficiary and presentation of this Deed and said note
for endorsement, and without affecting the personal liability of any person for payment of the
indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the
making of any map or plat thereof; join in granting any easement thereon; or join in any
extension agreement or any agreement subordinating the lien or charge hereof.
(4) That upon written request of Beneficiary stating that all sums secured
hereby have been paid, and upon surrender of this Deed and said note to Trustee for cancellation
and retention or other disposition as Trustee in its sole discretion may choose and upon payment
of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The
recitals in such reconveyance or any matters or facts shall be conclusive proof of the truthfulness
thereof. The Grantee in such reconveyance may be described as "the person or persons legally
entitled thereto."
(5) That as additional security, Trustor hereby gives to and confers upon
Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the
rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by
Trustor in payment of any indebtedness secured hereby or in performance of any agreement
hereunder, to collect and retain such rents, issues and profits as they become due and payable.
Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or
by a receiver to be appointed by a court, and without regard to the adequacy of any security for
the indebtedness hereby secured, enter upon and take possession of said property or any part
thereof, in his own name sue for or otherwise collect such rents, issues, and profits, including
those past due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney's attorneys' fees, upon any indebtedness secured
EXHIBIT B-2 TO ATTACHMENT NO. 11
To Deed of Trust With Assignment of Rents
Non-Recordable Attachment
DOCS00 1400673v 14/200272-0001
80A-439
hereby, and in such order as Beneficiary may determine. The entering upon and taking
possession of said property, the collection of such rents, issues and profits and the application
thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice.
(b) That upon default Trustor in payment of any indebtedness secured hereby
or in performance of any agreement hereunder, Beneficiary may declare all sums secured hereby
immediately due and payable by delivery to Trustee of written declaration of default and demand
for sale and of written notice of default and of election to cause to be sold said property, which
notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this
Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of
said notice of default, and notice of sale having been given as then required by law, Trustee,
without demand on Trustor, shall sell said property at the time and place fixed by it in said notice
of sale, either as a whole or in separate parcels, and in such order as it may determine, at public
auction to the highest bidder for cash in lawful money of the United States, payable at time of
sale. Trustee may postpone sale of all or any portion of said property by public announcement at
such time and place of sale, and from time to time thereafter may postpone such sale by public
announcement at the time fixed by the preceding postponement. Trustee shall deliver to such
purchaser its deed conveying the property so sold, but without any covenant or warranty, express
or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including Tmstor, Trustee, or Beneficiary as hereinafter
defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of
evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of
all sums expended under the terms hereof, not then repaid, with accrued interest at the amount
allowed by law in effect at the date hereof; all other sums then secured hereby; and the
remainder, if any, to the person or persons legally entitled thereto.
(7) Beneficiary, or any successor in ownership of any indebtedness secured
hereby, may from time to time, by instrument in writing, substitute a successor or successors to
any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary
and duly acknowledged and recorded in the office of the recorder of the county or counties
where said property is situated, shall be conclusive proof of proper substitution of such successor
Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all
its title, estate, rights, powers and duties. Said instrument must contain the name of the original
Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and
the name and address of the new Trustee.
(8) That this Deed applies to, inures to the benefit of, and binds all parties
hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The
term Beneficiary shall mean the owner and holder, including pledgees, of the note secured
hereby, whether or not named as Beneficiary herein. In this Deed, whenever the context so
EXHIBIT B-3 TO ATTACHMENT NO. 11
To Deed of Trust With Assignment of Rents
Non-Recordable Attachment
DOCSOC/1400673 v 14200272-0001
80A-440
requires, the masculine gender includes the feminine and/or neuter, and the singular number
includes the plural.
(9) That Trustee accepts this Trust when this Deed, duly executed and
acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any
party hereto of pending sale under any other Deed of Trust or of any action or proceeding in
which Trustor, Beneficiary or Trustee shall be a party unless brought by trustee.
EXHIBIT B-4 TO ATTACHMENT NO. I I
To Deed of Trust With Assignment of Rents
Non-Recordable Attachment
DOCSOG 1400673 v 14/200272-0001
80A-441
EXMIT C
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
TO i? ,TRUSTEE
The undersigned is the legal owner and holder of the note or notes, and of all other
indebtedness secured by the foregoing Deed of Trust. Said note or notes, together with all other
indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are
hereby requested and directed on payment to you of any sums owning owing to you under the
terms of said Deed of Trust, to cancel said note or notes above mentioned, and all other
evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with
the said Deed of Trust, and to reconvey, without warranty, to the parties designated by the terms
of said Deed of Trust, all the estate now held by you under the same.
Dated:
Please mail Deed of Trust,
Note and Reconveyance to
Do not lose or destroy this Deed of Trust OR THE NOTE wltich it secures Both must be
delivered to the Trustee or cancellation before reconve ante will be made.
DEED OF TRUST
with power of sale
TRUSTEE
EXHIBIT C-1 TO ATTACHMENT NO. 11
To Request for Full Conveyance
D OCS OCt 1400673v 14200272-0001
80A-442
RIDER TO DEED OF TRUST
This RIDER TO DEED OF TRUST is made and delivered pursuant to and in
implementation of the Homebuyer Loan Agreement entered by and between the Trustor and the
Beneficiary dated , 20,^ ("Agreement"), a copy of which is on file as a
public record with the Beneficiary at 20 Civic Center Plaza, Santa Ana, California 92701 and is
incorporated herein by reference. Unless definitions of terms have been expressly set out at
length herein, each term shall have the same definition as set forth in the Agreement. Trustor
and Beneficiary further covenant and agree as follows:
1. Acceleration of Payment. The whole of the Note Amount and all other
payments due hereunder and under the Agreement shall become due and be immediately payable
to the Beneficiary by the Trustor upon the occurrence of any one of the following events of
acceleration:
(a) the sale or transfer of the Property (or any part thereof) by any means,
including, without limitation, the lease, exchange or other disposition of the Property or any
interest therein, whether voluntary or involuntary, except (A) a sale of the Property to a qualified
Moderate Income Household at an Affordable Housing Cost with the Beneficiary's prior written
approval accomplished in strict conformity with Section 4 of the Agreement, or (B) the transfer
of the Property solely as a result of the marriage, divorce, incompetence or death of one or more
individuals constituting the Trustor, so long as the transferee(s) give written notice supported by
reasonable evidence of such event to the Beneficiary within thirty (30) days of its occurrence and
the transferee(s) assume(s) the Trustor's obligations under the Agreement, by execution of an
assignment and assumption agreement to be provided by the Beneficiary, or (C) a sale or transfer
which under federal law would not, by itself, permit the Beneficiary to exercise a due on sale or
due on encumbrance clause;
(b) the Trustor refinances any purchase money lien or encumbrance to which
the Agency Deed of Trust is subordinate (each such lien, a "First Lien") for a loan amount in
excess of the then current loan balance secured by such lien or encumbrance and loan closing
costs; and/or
(c) the Trustor (and all co-signors and co-mortgagors, if any) fails to own and
occupy the Property as their principal residence pursuant to Section 7 of the Agreement or is in
Ownership Default as defined in Section 16 of the Agreement.
At the request of the Trustor, and for a specific occasion, the Beneficiary may, in
its sole and absolute discretion, in writing waive the requirements of these subparagraphs. Any
waiver or deferment shall be on a case by case basis, and no future rights for waiver or deferment
shall arise or be implied. Notwithstanding the foregoing, the Trustor may, upon prior written
approval by the Beneficiary, refinance any First Lien for a loan amount equal to or less than the
then current loan balance secured by such First Lien.
2. Contingent Equity Participation Amount. In the event the Note Amount
becomes due and payable pursuant to Section 1, Trustor shall pay to the Beneficiary the whole of
EXHIBIT C-2 TO ATTACHMENT NO. 11
To Deed of Trust with Assignment of Rents
Rider to Deed of Trust
DOCS OC11400673v 14/200272-0001
80A-443
the Homebuyer Assistance Loan Amount and the "Contingent Equity Participation Amount," as
hereafter defined.
(a) Calculation of Contingent Equity Participation Amount. The
"Contingent Equity Participation Amount" means an amount equal to a percentage share of the
appreciation of the Property determined by multiplying a variable percentage factor ("Variable
Applicable Factor") by the difference between the Sales Price and the Purchase Price (as those
terms are hereinafter defined).
(b) Variable Applicable Factor Calculation. The Variable Applicable
Factor shall be calculated by dividing the Beneficiary's total initial equity contribution which is
deemed to have been provided to Trustor based on sale of the Property at an Affordable Housing
Cost ("Agency Contribution") by the sum of the Agency Contribution plus the Trustor's
contribution ("Homebuyer Contribution"). In other words, the Agency Contribution shall be the
numerator, and the sum of the Agency Contribution plus the Homebuyer Contribution shall be
the denominator of a fraction that equals a percentage that is the Variable Applicable Factor
(subject to Section 2(b)(i)).
Variable Applicable Factor = Agency Contribution
Agency Contribution + Homebuyer Contribution
For example, if the Agency Contribution equals $30,000 and the Homebuyer
Contribution equals $250,000, the Variable Applicable Factor would equal 10.79'o ($30,000
divided by the sum of $30,000 plus $250,000).
10.7% (Variable Applicable Factor) _ $30,000 (Agency Contribution)
$30,000 (Agency Contribution) + $250,000 (Homebuyer
Contribution) = ($280,000)
(i) The "Agency Contribution" is the sum of the following amounts
contributed by Beneficiary to the purchase price of the Property: (i) the principal amount of the
Homebuyer Assistance Loan Amount; i.e., the Affordable Housing Cost Subsidy; and (ii) the
principal amount(s) of any other loan(s) or subsidy(ies) provided by Beneficiary.
(ii) The "Homebuyer Contribution" is the sum of the following
amounts contributed by Trustor to the purchase price of the Property: (i) the principal amount of
the First Lien loan; (ii) the Trustor's cash down payment plus Trustor's portion of closing costs;
and (iii) the original principal amount of loans(s) or other subsidy(ies) secured by Trustor,
(excluding and other than loan(s) or subsidy(ies) provided by Agency or Beneficiary (as set forth
in the definition of Agency Contribution)) and applied by Trustor towards the purchase of the
Property.
EXHIBIT C-3 TO ATTACHMENT NO. 11
To Deed of Trust with Assignment of Rents
Rider to Deed of Trust
DOCSOG 1400673 04/200272-0001
80A-444
(iii) The "Purchase Price" is the original purchase price paid by the
Truster (or the Truster as the qualified successor owner of the Property) to the seller of the
Property (the "Seller") for the Seller's interest in the Property (generally which is equal to the
fair market value of the Property at date of original purchase), exclusive of escrow fees, title
insurance costs, broker's commissions, loan fees or any other closing or transaction costs.
Subject to the provisions set forth hereinbelow, the value of Qualified Capital Improvements
shall be added to the Purchase Price when calculating the Contingent Equity Participation
Amount.
(iv) The "Sales Price" is the price to be paid by the prospective buyer
(who is not a qualified Moderate Income Household) of the Property (the "Buyer") to the Trustor
(or the Truster as the qualified successor owner of the Property) for the Trustor's interest in the
Property, exclusive of reasonable escrow fees, title insurance costs, broker's commissions, loan
fees or any other closing or transaction costs. The Sales Price shall be established in conformity
with Section 2(h)(i) hereof. In the event of Trustor's refinancing, failure to occupy, or other type
of Ownership Default, the "Sales Price" shall be established in conformity with Section 2(h)(ii)
hereof.
(v) The "Affordable Housing Cost Subsidy" is the amount deemed to
be a subsidy the Beneficiary has provided to the Trustor by making the Property available for
purchase at a price which constitutes Affordable Housing Cost. The Affordable Housing Cost
Subsidy equals the difference between the appraised fair market value of the Property (which
appraisal shall be at Beneficiary's cost) as of the date of the Homebuyer Loan Agreement and the
Affordable Housing Cost.
(i) Exception Calculation. Notwithstanding the above, the Variable
Applicable Factor shall equal the greater of fifty percent (50%) or the Variable Applicable Factor
calculated pursuant to Section 2(b); provided however, in the event Trustor receives a First Lien
loan from the California Housing Finance Agency or a First Lien loan the source of proceeds of
which are from tax exempt bonds, then the Variable Applicable Factor shall equal the Variable
Applicable Factor percentage calculated pursuant to Section 2(b) hereof.
(c) Using the Variable Applicable Factor to Determine the Contingent
Equity Participation Amount. The Contingent Equity Participation Amount is calculated by
multiplying the Variable Applicable Factor by the difference between the Sales Price and the
Purchase Price. For example, if the Variable Applicable Factor equals 10.7%, the Contingent
Equity Participation Amount would then equal 10.7% (Variable Applicable Factor) x (Sales
Price minus the Purchase Price).
In the above example, if the Sales Price equals $380,000 and the Purchase Price
equals $280,000, the Contingent Equity Participation Amount would equal $10,700
(10.7% x ($380,000 minus $280,000)).
EXHIBIT C-4 TO ATTACHMENT NO. 11
To Deed of Trust with Assignment of Rents
Rider to Deed of Trust
DOCS001400673 v 141200272-0001
80A-445
10.7% (Variable Applicable Factor) x 100,000 (Sales Price - Purchase Price) = $10,700 (Contingent
Equity Participation Amount).
(d) Calculation of Contingent Equity Participation Amount for
Subsequent Homebuyers. If pursuant to Section 4 of the Agreement, a Buyer has fully
assumed the Trustor's obligations under the Agreement, the Note, this Agency Deed of Trust, the
Notice of Affordability Restrictions, and the Affordable Housing Resale Restriction, and
thereafter the new Buyer, as the successor Homebuyer, is in Ownership Default that causes an
event of acceleration to occur, the Contingent Equity Participation Amount to be paid by such
Buyer shall be calculated by multiplying the Variable Applicable Factor, established in
Section 2(b) above, by the difference between the Sales Price, established in conformity with
Section 2(h) hereof, and the Purchase Price.
(e) No Appreciation or Depreciation in Value of Property. If an event of
acceleration occurs at a time when the Property has not appreciated or the value of the Property
has depreciated (i.e., the Sales Price is less than the Purchase Price), then no Contingent Equity
Participation Amount is due by the Trustor to the Beneficiary.
(f) Qualified Capital Improvements. The value of any Qualified Capital
Improvements completed by the Trustor during the Trustor's ownership of the Property shall be
added to the Purchase Price when calculating the Contingent Equity Participation Amount only
if, not later than thirty (30) days prior to the Event of Acceleration causing the Contingent Equity
Participation Amount to become immediately due and payable pursuant to Section 1, Trustor
submits the following to the Beneficiary: (i) an itemized list of the Qualified Capital
Improvements, (ii) reliable proof of completion of the Qualified Capital Improvements (as
evidenced e.g., by final building permits, a certificate of completion or original paid invoices or
construction contracts), and (iii) an appraisal from a certified appraiser, in form and substance
reasonably acceptable to the Executive Director, the conclusion of which is that the Qualified
Capital Improvements have added the stated amount to the fair market value of the Property.
If, within (30) days of receipt of the information concerning the Qualified Capital
Improvements, the Beneficiary questions the claimed increase in the value of the Property by
reason of said Qualified Capital Improvements, the Beneficiary and the Trustor may, by mutual
agreement, establish the value of the Qualified Capital Improvements or the Beneficiary may
require an appraisal of the Property, at the Trustor's expense, by a second independent certified
appraiser appointed by the Beneficiary to determine the fair market value of the Qualified
Capital Improvements.
(g) Credit to Trustor. Notwithstanding the foregoing provisions of this
Section 2, calculation of the Contingent Equity Participation Amount is subject to a superior
right of the Trustor, to receive credit in calculation of the Purchase Price for money paid by the
Trustor post acquisition and during the term of the Trustor's ownership of the Property for
installment payments of mortgage principal, pursuant to the First Lien actually made by the
EXHIBIT C-5 TO ATTACHMENT NO. I 1
To Deed of Trust with Assignment of Rents
Rider to Deed of Trust
DOCSOC/1400673v 14200272-0001
80A-446
Trustor, in addition to the fair market value of Qualified Capital Improvements consistent with
the requirements of Section 2(f) hereof.
(h) Determination of Sales Price; Appraisal.
(i) Upon Sale of the Property. In the event of a proposed sale of the
Property by Tmstor that does not conform to Section 3 herein, and not less than thirty (30) days
after Beneficiary receives actual notice of the opening of escrow in connection therewith, the
Beneficiary may elect to appoint a certified, independent appraiser to conduct an appraisal of the
Property, at Trustor's expense, to assist Beneficiary in determining if the Sales Price is at or near
the fair market value of the Property at such time. If the Sales Price is determined by the
appraisal to be three percent (3%) or more below the fair market value of the Property as
estimated in said appraisal, then the "Sales Price" for purposes of determining the Contingent
Equity Participation Amount shall be the fair market value of the Property established in said
appraisal.
(ii) Upon RePmancing/Failure to Occupy/Default. In the event of
refinancing, failure to occupy the Property in accordance with Section 7 of the Agreement, or an
Ownership Default which causes the Note Amount including the Contingent Equity Participation
Amount to become immediately due and payable, the "Sales Price" for purposes of determining
the Contingent Equity Participation Amount shall be determined by an appraisal of the Property.
The Beneficiary shall appoint a certified independent appraiser to conduct an appraisal of the
Property, at the Trustor's expense. The Trustor agrees that in such event the Contingent Equity
Participation Amount shall be the Variable Applicable Factor multiplied by the difference
between the Purchase Price and "Sales Price" as established by the appraised value of the
Property at the time of such refinancing, failure to occupy, or other Ownership Default of the
Agreement.
(i) Trustor's Acknowledgment of Contingent Equity
Participation Amount.
TRUSTOR ACKNOWLEDGES AND AGREES THAT UPON
SALE, TRANSFER, OR REFINANCING OF THE
PROPERTY THAT DOES NOT COMPLY WITH SECTION
3 HEREIN, AND/OR UPON ANY OTHER DEFAULT THAT
CAUSES AN EVENT OF ACCELERATION AS SET FORTH
IN SECTION 1. HEREOF, PRIOR TO THE FORTY-FIFTH
(45th) ANNIVERSARY OF THE RECORDATION DATE OF
THIS AGENCY DEED OF TRUST, TRUSTOR SHALL PAY
TO BENEFICIARY IN ADDITION TO THE AGENCY
LOAN AMOUNT, A CONTINGENT EQUITY
PARTICIPATION AMOUNT EQUAL TO A PERCENTAGE
SHARE OF THE APPRECIATION OF THE PROPERTY AS
CALCULATED PURSUANT TO THIS SECTION 2.
Trustor's Initials:
EXHIBIT C-6 TO ATTACHMENT NO. I 1
To Deed of Trust with Assignment of Rents
Rider to Deed of Trust
DOCS00 1400673v 141200272-0001
80A-447
3. Sale to Moderate Income Household. During the Affordability Period, the Note
Amount will not become due and payable, and no Contingent Equity Participation Amount shall
be required hereunder in connection with such sale, if Tmstor sells or otherwise conveys the
Property to a Moderate Income Household at an Affordable Housing Cost ("Eligible Persons and
Families"), and the purchaser assumes the Note and the Agreement by an assignment and
assumption agreement which is reasonably acceptable to the Beneficiary.
For the purposes of this Agency Deed of Trust, the Note, and the Agreement, "Moderate
Income" and "Moderate Income Households" means moderate income households as defined in
Health & Safety Code Section 50093
3.1 Affordable Housing Cost - Moderate Income Household.
"Affordable Housing Cost" shall be as defined in Health & Safety Code Section 50052.5
(or its successor statute) and the implementing regulations thereto promulgated by the Housing
and Community Development Department of the State of California.
Notwithstanding the provisions of this Section 3, if the Property is sold during the
Affordability Period by the Trustor to a Moderate Income Household and the Sales Price does
not exceed an "Affordable Housing Cost" to such Buyer, then so long as the Tmstor is not in
default (either Ownership Default or Maintenance Default) of the Agreement, this Note may be
assumed by the eligible Buyer by an assignment and assumption agreement which is reasonably
acceptable to the Beneficiary. Upon the effective date of such assignment and assumption, the
assigning Tmstor shall no longer be liable for any further obligations under the Agreement, the
Note or the Agency Deed of Trust that accrue after the date of such assignment and assumption.
In order to verify the Buyer's status as a Moderate Income Household, the Trustor shall submit
to the Beneficiary the identity of the proposed Buyer and adequate information evidencing the
income and household size of the proposed Buyer. Said income information shall be submitted
together with the notice of proposed sale pursuant the Agreement not less than thirty (30) days
prior to opening of escrow for the proposed sale and shall include original or true copies of pay
stubs, income tax records or other financial documents in order that the Holder may determine
and verify the household income of the proposed Buyer to determine whether the Buyer is a
Moderate Income Household, and whether the Property is being transferred to such Buyer at an
Affordable Housing Cost. If the Holder is unable to verify the Buyer's income as provided
herein prior to the proposed sale, then the Buyer's income shall be deemed to exceed the
maximum allowable income limit for Eligible Persons and Families.
4. Subordination. Except as provided otherwise herein, the provisions of the
Agreement, the Notice of Affordability Restrictions, this Rider and Agency Deed of Trust, and
the Affordable Housing Resale Restriction, and the obligations therein, shall be subordinate only
to the First Lien on the Property held by the Lender and, if applicable, other loan(s) as approved
by the Executive Director, including lien instruments that secure other homebuyer purchase
money and/or downpayment assistance, including without limitation City, State of California, or
federal affordable housing programs, which liens shall not impair the rights of Lender, or
Lender's assignee or successor in interest or the Agency, if applicable, to exercise their remedies
under the First Lien in the event of default under the First Lien by the Homebuyer, Such
EXHIBIT C-7 TO ATTACHMENT NO. 11
To Deed of Trust with Assignment of Rents
Rider to Deed of Trust
DGCSOC 1400673v14/200272-0001
80A-448
remedies under the First Lien include the right of foreclosure or acceptance of a deed or
assignment in lieu of foreclosure. If title to the Property is transferred by foreclosure or
acceptance of a deed in lieu of foreclosure, or assignment of the First Lien to the Secretary of the
Department of Housing and Urban Development, this Agreement and the Agency Deed of Trust
shall be automatically terminated and shall have no further effect as to the Property or any
transferee thereafter. However, in no event shall this Agreement, the Agency Deed of Trust, and
the Affordable Housing Resale Restriction, be subordinate to any First Lien on the Property
securing a loan with provisions which allow negative amortization, or to refinancing of the lien
of the First Lien for a loan amount in excess of the sum of the then current loan balance secured
by the First Lien and loan closing costs.
Trustor agrees it shall instruct the Escrow Agent for the acquisition of the
Property by Trustor that the order of recording in the escrow for the purchase of the Property by
Trustor shall occur as follows: (1) the Grant Deed, (2) the First Lien; (3) other affordable
housing loan(s), if applicable; (4) the Affordable Housing Resale Restriction; (5) the Notice of
Affordability Restrictions and (6) the Agency Deed of Trust. Agency shall cause a Request for
Notice of Default to be recorded on the Property subsequent to the recordation of the First Lien
deed of trust or mortgage requesting a statutory notice of default as set forth in the California
Civil Code Section 2924b, and shall cause a request for Notice of Delinquency to be recorded on
the Property subsequent to the recordation of the First Lien deed of trust or mortgage.
IN WITNESS WHEREOF, Trustor has executed this Rider to Deed of Trust as of the
date set forth below-
TRUSTOR/HOMEBUXER:
By:_
Printed
By:_
Printed
EXHIBIT C-8 TO ATTACHMENT NO. 11
To Deed of Trust with Assignment of Rents
Rider to Deed of Trust
DOCSOCl1400673v 141200272-0001
80A-449
EXHIBIT "D"
AFFORDABLE HOUSING RESALE RESTRICTION
RECORDING REQUESTED BY, )
AND WHEN RECORDED MAIL TO: )
Community Redevelopment Agency )
of the City of Santa Ana )
20 Civic Center Plaza )
Santa Ana, California 92702 )
Attn: Executive Director )
This document is exempt from payment of a
recording fee pursuant to Government Code
Sections 27383 and 6103.
AFFORDABLE HOUSING RESALE RESTRICTION
(Conditions, Covenants, and Restrictions Affecting Real Property and the Resale,
Ownership, Occupancy, Maintenance, and Other Matters Related to Real Property)
This AFFORDABLE HOUSING RESALE RESTRICTION ("Restriction") is made
as of ; --- , 20_, by
("Homebuyer") in favor of the COMMUNITY REDEVELOPMENT
CITY OF SANTA ANA, a public body, corporate and politic ("Agency").
RECITALS
AGENCY OF THE
A. Homebuyer has purchased a single family house located at
, Santa Ana, California, as such real property is more particularly
described in "Attachment No. I" attached hereto and incorporated herein ("Property").
B. Homebuyer and Agency have entered into that certain Homebuyer Loan
Agreement ("Loan Agreement") dated of even date herewith, which is incorporated herein by
reference and a copy of which is on file with Agency at its offices and is a public record,
pursuant to which Agency has agreed to cause the Property to be sold to Homebuyer at a
Moderate Income Affordable Housing Cost by providing certain financial assistance to
Homebuyer ("Homebuyer Assistance Loan") and Homebuyer has agreed to subject the Property
to certain conditions, covenants and restrictions. Capitalized terms used herein and not
otherwise defined shall have the same meaning as set forth in the Loan Agreement.
C. Homebuyer and Agency desire and intend to restrict the Property and the
improvements thereon in accordance with this Restriction to preserve its value for the benefit of
Homebuyer, its successors and the surrounding neighborhood.
D. Homebuyer is a Moderate Income Household, as that term is defined in this
Restriction.
EXHIBIT D-1 TO ATTACHMENT NO. 11
Affordable Housing Resale Restriction
DOCS00 1400673 v 14/200272-0001
80A-450
E. Homebuyer has represented to Agency that Homebuyer and Homebuyer's
household intend to reside in the Property as Homebuyer's principal residence at all times during
Homebuyer's ownership of the Property.
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
1. Definitions
"Affordability Period" means that period of time commencing upon the Date of this
Restriction and terminating on the forty-fifth (45th) anniversary of such date.
"Affordable Housing Cost" means the purchase price for Moderate Income Households
pursuant to California Health & Safety Code Section 50052.5, the implementing regulations of
Sections 6920, 6924 and 6930 of Title 25 of the California Code of Regulations for Moderate
Income Households
Notwithstanding the provisions of this Restriction, if the Property is sold during the
Affordability Period by Homebuyer to a Moderate Income Household, and the Sales Price does
not exceed an "Affordable Housing Cost" to such Buyer, then so long as the Maker is not in
default (either Ownership Default or Maintenance Default) of the Agreement, this Note may be
assumed by the eligible Buyer by an assignment and assumption agreement that is reasonably
acceptable to Agency. Upon the effective date of such assignment and assumption, the assigning
Homebuyer shall no longer be liable for any further obligations under the Loan Agreement or
this Restriction that accrue after the date of such assignment and assumption. In order to verify
the Buyer's status as a Moderate Income Household, Homebuyer shall submit to the Agency the
identity of the proposed Buyer and adequate information evidencing the income and household
size of the proposed Buyer. Said income information shall be submitted together with the notice
of proposed sale pursuant to Section 2 of the Loan Agreement not less than thirty (30) days prior
to opening of escrow for the proposed sale and shall include original or true copies of pay stubs,
income tax records or other financial documents in order that the Agency may determine and
verify the household income of the proposed Buyer to determine whether the Buyer is a
Moderate Income Household, and whether the Property is being transferred to such Buyer at an
Affordable Housing Cost. If the Agency is unable to verify the Buyer's income as provided
herein prior to the proposed sale, then the Buyer's income shall be deemed to exceed the
maximum allowable income limit for Eligible Persons and Families.
"City" means the City of Santa Ana, California, a California municipal corporation, and
the City's successors and assigns.
"County "means the County of Orange, California.
"Date of this Restriction" means the date in the first paragraph of this Restriction.
"Defaull" means the failure of a party to perform any action or covenant required by this
Restriction within the time periods provided herein following notice and opportunity to cure.
The term default also includes an Ownership Default and a Maintenance Default as more fully
defined and described herein. Notwithstanding the foregoing for purposes of acceleration of the
Homebuyer Assistance Loan, or initiation of foreclosure proceedings there shall be a distinction
EXHIBIT D-2 TO ATTACHMENT NO. 11
Affordable Housing Resale Restriction
D0CSQG1400673v141200272-0001
80A-451
between the types of default hereunder, including an "Ownership Default" and a "Maintenance
Default." The term "Ownership Default" means the failure of Homebuyer to perform any action
or covenant required by the Affordable Housing Resale Restriction related to ownership, owner-
occupancy, lien priority, and restrictions on sale and resale of the Property subject to the notice
and opportunity to cure provisions set forth herein. A default of any obligation secured by the
First Lien shall be a cross-default and also constitute an Ownership Default. The term
"Maintenance Default" means the failure of Homebuyer to perform any action or covenant
required by Restriction relating to a "Maintenance Deficiency," including the ongoing upkeep,
maintenance, and use of the Property in decent, safe, sanitary, clean, and neighborly manner,
subject to the notice and opportunity to cure provisions set forth herein (and expressly excluding
an Ownership Default).
"Developer" means a
"First Lien" means the lien of the institution making the purchase money mortgage loan
to Homebuyer for the purchase of the Property.
"Homebuyer" means the person or persons set forth in the first paragraph of this
Restriction, and their successors and assigns.
"Legal Description" means the legal description of the Property which is attached hereto
as Attachment No. 1 and incorporated herein.
"Moderate Income" and "Moderate Income Households" means moderate income
households as defined in Health & Safety Code Section 50093.
"Notice of Intent to Transfer" means the Notice of Intent to Transfer attached hereto as
Attachment No. 2 and incorporated herein by reference.
"Permitted Transfer" means any Transfer which is permitted pursuant to Section 4
hereof.
"Prohibited Transfer" means any Transfer which is not permitted pursuant to Section 4
hereof.
"Property" means that certain real property located at the street address set forth in
Recital A and legally described in the Legal Description.
"Purchase Agreement" means that certain agreement pursuant to which Homebuyer has
agreed to purchase the Property from the Developer.
"Reimbursement Agreement" means the Reimbursement Agreement to be executed by
Homebuyer in favor of the Agency, in the form attached hereto as Attachment No.4 and
incorporated herein.
"Request for Approval of Proposed Transferee" means the Request for Approval of
Proposed Transferee attached hereto as Attachment No. 2 and incorporated herein.
EXHIBIT D-3 TO ATTACHMENT NO. 11
Affordable Housing Resale Restriction
DOCSOCI1400673v 141200272-0001
80A-452
"Request for Notice" means the Request for Notice of Default attached hereto as
Attachment No. 3 and incorporated herein.
"Restriction" means this Affordable Housing Resale Restriction.
"Safes Price" means the sum to be paid by a Transferee for the Transfer of the Property.
"Transfer" shall mean any sale, assignment, conveyance, lease or transfer, voluntary or
involuntary, of any interest in the Property. Without limiting the generality of the foregoing,
Transfer shall include (i) a transfer by devise, inheritance or intestacy to a party who does not
meet the definition of a Moderate Income Household; (ii) a life estate; (iii) creation of a joint
tenancy interest; (iv) a gift of all or any portion of the Property; or (v) any voluntary conveyance
of the Property. Transfer shall not include transfer to a spouse in a dissolution proceeding.
"Transferee" shall mean any natural person or entity who obtains ownership or
possessory rights in the Property pursuant to a Transfer.
2. Restrictions on Sale of Property. Homebuyer covenants and agrees that during
the Affordability Period, each subsequent resale of the Property by the then-owner thereof shall
be to a Moderate Income Household at an Affordable Housing Cost; provided, however, that
Homebuyer, in Homebuyer's sole discretion, may elect to transfer the Property at a price in
excess of an Affordable Housing Cost during the Affordability Period thereby causing an
acceleration under Section l.f. of the Agreement, in consideration for Homeowner's payment to
Agency of the Contingent Equity Participation Amount as set forth in Section 3 of the
Agreement.
3. Homebuyer's Representations and Warranties as to the Sale of the Property
to Homebuyer. Homebuyer represents and warrants to Agency that the financial and other
information which Homebuyer has provided to Agency with respect to Homebuyer's income and
the purchase price of the Property was true and correct at the time such information was
provided, and remains true and correct as of the Date of this Restriction.
4. Permitted Sales of the Property. Agency hereby permits sales of the Property to
proposed Transferees who are Moderate Income Households, and are approved in accordance
with this Section 4, provided the Sales Price does not exceed an Affordable Housing Cost to such
proposed Transferee ("Permitted Transfers"). In the event that Homebuyer desires to Transfer
the Property during the Affordability Period, prior to the Transfer the owner shall notify Agency
by delivering a Notice of Intent to Transfer to Agency, which shall indicate the identity of the
proposed Transferee who desires to purchase the Property, whether the purchaser is a Moderate
Income Household, and whether the sales price is at an Affordable Housing Cost. In addition to
Homebuyer's and the proposed Transferee's delivery of the Notice of Intent to Transfer, the
following procedure shall apply:
a. Notice to Agency. Homebuyer shall send the Notice of Intent to Transfer
to Agency at the address set forth in Section 24.
b. Qualification of Proposed Transferee. The proposed Transferee shall
provide Agency with sufficient information in the form provided by Agency including without
EXHIBIT D-4 TO ATTACHMENT NO. I 1
Affordable Housing Resale Restriction
DOC S 0G 1400673 v 14!200272-0001
80A-453
limitation, a certification as to the income and family size of the proposed Transferee, for
Agency to determine if the proposed Transferee is a Moderate Income Household, and the
purchase price is at an Affordable Housing Cost.
C. Certificates from Parties. Homebuyer and proposed Transferee each
shall certify in writing, in a form acceptable to Agency, that the Transfer shall be closed in
accordance with, and only with, the terms of the sales contract and other documents submitted to
and approved by Agency and that all consideration delivered by the proposed Transferee to
owner has been fully disclosed to Agency. The written certificate shall also include a provision
that in the event a Transfer is made in violation of the terms of this Restriction or false or
misleading statements are made in any documents or certificate submitted to Agency for its
approval of the Transfer, Agency shall have the right to file an action at law or in equity to make
the parties terminate and/or rescind the sales contract and/or declare the sale void
notwithstanding the fact that the Transfer may have closed and become final as between
Homebuyer and Transferee.
d. Written Consent of Agency Required Before Transfer. During the
Affordability Period, the Property, and any interest therein, shall not be conveyed by any
Transfer except with the express written consent of Agency, which consent shall be given only if
the Transfer is in accordance with the provisions of this Restriction. This provision shall not
prohibit the encumbering of title for the sole purpose of securing financing of the purchase price
of the Property.
e. Notice of Prohibited Transfer. Within twenty (20) days after receiving
notification of a proposed Transfer in accordance with Section 4a., Agency shall determine and
give notice to Homebuyer as to whether the proposed Transfer is a Permitted Transfer or
Prohibited Transfer, or whether the Transfer would cause an acceleration of the Note under
Section 11. of the Agreement and, in which case, upon Homebuyer's payment of the Contingent
Equity Participation Amount as set forth in Section 3 of the Agreement such Transfer would be
deemed a Permitted Transfer hereunder. In the event that the proposed Transfer is a Prohibited
Transfer, such notice to Homebuyer shall specify the nature of the Prohibited Transfer. If the
violation is not corrected to the satisfaction of Agency within ten (10) days after the date of the
notice, or within such further time as Agency determines is necessary to correct the violation,
Agency may declare a Default under this Restriction. Upon the declaration of a Default, Agency
may apply to a court of competent jurisdiction for specific performance of this Restriction, for an
injunction prohibiting a proposed sale or Transfer in violation of this Restriction, for a
declaration that the Prohibited Transfer is void, or for any such other relief as may be
appropriate.
f. Delivery of Documents. Upon the close of the proposed Transfer,
Homebuyer and Transferee, as applicable, shall provide the Agency with a copy of the final sales
contract, settlement statement, escrow instructions, all certificates required by this Section 4 and
any other documents Agency may request.
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S. Encumbrances.
a. Subordination. Except as provided otherwise herein, the provisions of
the Loan Agreement, this Restriction, the Notice of Affordability Restrictions and the Agency
Deed of Trust and Rider, the obligations herein and therein, shall be subordinate only to the First
Lien on the Property and, if applicable, other loan(s) as approved by the Executive Director,
including lien instruments that secure other Homebuyer purchase money and/or downpayment
assistance, including without limitation City, State of California, or federal affordable housing
programs, which liens shall not impair the rights under the First Lien in the event of default
under the First Lien by Homebuyer. Such remedies under the First Lien include the right of
foreclosure or acceptance of a deed or assignment in lieu of foreclosure. If title to the Property is
transferred by foreclosure or acceptance of a deed in lieu of foreclosure, or assignment of the
First Lien to the Secretary of the Department of Housing and Urban Development, the Loan
Agreement, this Restriction, and Agency Deed of Trust shall be automatically terminated and
shall have no further effect as to the Property or any Transferee thereafter. However, in no event
shall the Loan Agreement, the Agency Deed of Trust, and this Affordable Housing Resale
Restriction, be subordinate to any First Lien on the Property securing a loan with provisions
which allow negative amortization, or to refinancing of the lien of the First Lien for a loan
amount in excess of the sum of the then current loan balance secured by the First Lien and loan
closing costs.
b. Request for Notice of Default. Agency may cause a Request for Notice
to be recorded on the Property subsequent to the recordation of the First Lien deed of trust or
mortgage requesting a statutory notice of default as set forth in California Civil Code Section
2924b. A form of a Request for Notice is attached hereto as Attachment No. 3 and incorporated
herein.
C. Further Encumbrances. Homebuyer agrees that it shall not record or
cause the recordation of any deed of trust ("Further Encumbrance") securing a note having an
original principal sum which, when added to the sum of the principal amount(s) of any notes
secured by any deeds of trust against the Property as of the date of recordation of the Further
Encumbrance, exceeds one hundred percent (100%) of the fair market value of the Property.
6. Reimbursement Agreement. Homebuyer and Agency shall enter into a
Reimbursement Agreement, substantially in the form attached hereto as Attachment No. 4 and
incorporated herein, which provides that Agency may make payments to cure a default or
delinquency on the First Lien, on the condition that Homebuyer agrees to reimburse Agency for
any payments made to cure a default or delinquency on the First Lien. Homebuyer's repayment
obligations pursuant to the Reimbursement Agreement shall be secured by a subordinate deed of
trust which encumbers the Property. In the event that Homebuyer refinances the First Lien,
Homebuyer and Agency shall enter into an amendment to the Reimbursement Agreement or a
new Reimbursement Agreement. The Transferee of the Property and Agency shall also enter
into a new Reimbursement Agreement upon the Transfer of the Property. Agency shall execute
such subordination agreements as may be reasonably requested by the holder of a First Lien.
7. Uses. Homebuyer covenants and agrees to devote, use and maintain the Property
in accordance with this Restriction. All uses conducted on the Property, including, without
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limitation, all activities undertaken by Homebuyer pursuant to this Restriction, shall conform to
all applicable provisions of the Santa Ana Municipal Code, and the recorded documents
pertaining to and running with the Property.
8. Nondiscrimination Covenants. Homebuyer covenants by and for itself, its
successors and assigns, and all persons claiming under or through them that there shall be no
discrimination against or segregation of, any person or group of persons on account of any basis
listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are
defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of
Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the
grantee or any person claiming under or through him or her, establish or permit any practice or
practices of discrimination or segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein
conveyed. The foregoing covenants shall run with the land. All deeds, leases or contracts
relating to the Property, or any part thereof, shall contain or be subject to substantially the
following non-discrimination or non-segregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or herself, his
or her heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person
or group of persons on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section
12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person
claiming under or through him or her, establish or permit any practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein
conveyed. The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the following
conditions: "That there shall be no discrimination against or segregation of any person or
group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section
12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy,
tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself,
or any person claiming under or through him or her, establish or permit any such practice
or practices of discrimination or segregation with reference to the selection, location,
number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the
premises herein leased"
(c) In contracts: "There shall be no discrimination against or segregation of,
any person or group of persons on account of any basis listed in subdivision (a) or (d) of
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Section 12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the premises which are the subject of this Agreement,
nor shall the grantee or any person claiming under or through him or her, establish or
permit any practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees,
or vendees in the premises herein conveyed. The foregoing covenants shall run with the
land"
The covenants established in this Section 8 shall, without regard to technical
classification and designation, be binding for the benefit and in favor of Agency and its
successors and assigns, and shall remain in effect in perpetuity.
9. Maintenance of Property. Homebuyer shall maintain the improvements and
landscaping on the Property in a manner consistent with community standards which will uphold
the value of the Property, in accordance with the Santa Ana Municipal Code. Homebuyer also
agrees to comply with all applicable federal, state and local laws.
a. Exterior Maintenance. Except as to be maintained by the homeowners
association, as applicable, all exterior, painted surfaces of any structures located on the Property
shall be maintained at all times in a clean and good condition. Any defacing marks shall be
cleaned or removed within a reasonable period of time.
b. Front and Side Exteriors. Except as to be maintained by the
homeowners association, as applicable, Homebuyer shall at all times maintain the front exterior,
any visible side exteriors, and yards, if any, in a clean, safe and presentable manner.
C. Graffiti Removal. All graffiti and defacement of any type, including but
not limited to marks, words and pictures, shall be promptly removed from the Property within
two (2) days of the time they were made and any necessary painting or repair completed in a
timely and expeditious manner after notice thereof, whichever is less.
d. No Nuisance. Homebuyer shall not maintain, cause to be maintained, or
allow to be maintained on or about the Property any public or private nuisance, including without
limitation, the conduct of criminal activities set forth in the nuisance abatement provisions of the
Uniform Controlled Substances Act (Health & Safety Code Sections 11570, et seq.) or the Street
Terrorism Enforcement and Prevention Act (Penal Code Sections 186.22 et seq.), or any
successor statute or law.
10. Occupancy Standards. The Property shall be used as the principal personal
residence of Homebuyer and Homebuyer's immediate family/household and for no other
purpose. Homebuyer shall not enter into an agreement for the rental or lease of all or any part of
the Property. Homebuyer shall not rent out a room or rooms at the Property. Homebuyer may
request a temporary waiver of the foregoing requirement in the event of extreme hardship
requiring Homebuyer to move to another geographical area or to less expensive housing,
including, for example and without limitation, transfer of job location, loss of job, or unexpected
EXHIBIT D-8 TO ATTACHMENT NO. 1 I
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major expenses. Agency may approve or disapprove such request in its sole discretion, and may
require as a condition of approval that Homebuyer only rent the Property to Eligible Moderate
Income Households at an affordable rent (as defined in Section 50053 of the California Health &
Safety Code.) Agency acknowledges that the occupancy standard is occupancy by two (2)
persons per living and sleeping area. Homebuyer shall, upon demand by Agency, submit to
Agency an affidavit of occupancy verifying Homebuyer's compliance with this Section 10. Such
affidavit may be required by Agency on an annual basis.
11. Effect of Violation of the Terms and Provisions of this Restriction.
a. In General. The covenants established in this Restriction shall, without
regard to technical classification and designation, be binding for the benefit and in favor of
Agency, its successors and assigns, as to those covenants which are for its benefit. The
covenants contained in this Restriction shall remain in effect for the periods of time specified
herein. The covenants against discrimination shall remain in effect in perpetuity. Agency is
deemed the beneficiary of the terms and provisions of this Restriction and of the covenants
running with the land, for and in its own rights and for the purposes of protecting the interests of
the community and other parties, public or private, in whose favor and for whose benefit this
Restriction and the covenants running with the land have been provided. This Restriction and
the covenants herein shall run in favor of Agency, without regard to whether Agency has been,
remains or is an owner of any land or interest therein in the Property or in the Project Area.
Agency shall have the right, if the Restriction or covenants are breached, to exercise all rights
and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings
to enforce the curing of such breaches to which it or any other beneficiaries of this Restriction
and covenants may be entitled.
b. Acceleration. The whole of the Note Amount (as defined in
Section 1.2.b. of the Loan Agreement) and all other payments due under the Homebuyer
Assistance Loan shall become due and immediately payable to Agency by Homebuyer upon the
occurrence of any one of the following events of acceleration:
(i) Homebuyer, in Homebuyer's sole discretion, elects to Transfer the
Property for a price in excess of an Affordable Housing Cost, and Transfers the Property;
(ii) Homebuyer makes a Prohibited Transfer of title to or any interest
in the Property in violation of this Restriction;
(iii) Homebuyer refinances any lien or encumbrance to which Agency
Deed of Trust is subordinate (each such lien, a "First Lien") for a loan amount in excess of the
then current loan balance secured by such lien or encumbrance and loan closing costs;
(iv) Homebuyer fails to occupy the Property as Homebuyer's principal
residence pursuant to Section 7 of the Loan Agreement or is in Default of any other obligation
under the Loan Agreement;
(v) Homebuyer has an Ownership Default violating any affordable
housing terms or provisions of this Restriction.
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12. Hardship. At the request of Homebuyer, and for a specific occasion, Agency
may, in its sole and absolute discretion, in writing waive the requirements of Section 11,
subparagraph (b) and defer repayment and/or extend the term of the Note. Any waiver or
deferment shall be on a case-by-case basis, and no future rights for waiver or deferment shall
arise or be implied. Notwithstanding the foregoing, Homebuyer may, upon written approval by
Agency, refinance any First Lien with a fixed rate loan for a loan amount equal to or less than the
then current loan balance secured by such First Lien with no reduction in term.
13. Contingent Equity Participation Amount. In the event that the Homebuyer
Assistance Loan becomes due and payable pursuant to Section 11(b) above, Homebuyer shall
pay to Agency the whole of the Homebuyer Assistance Loan and the "Contingent Equity
Participation Amount," as hereinafter defined.
(a) Calculation of Contingent Equity Participation Amount. The
"Contingent Equity Participation Amount" means an amount equal to a percentage share of the
appreciation of the Property determined by multiplying a variable percentage factor ("Variable
Applicable Factor") by the difference between the Sales Price and the Purchase Price (as those
terms are hereinafter defined).
(b) Variable Applicable Factor Calculation. The Variable Applicable
Factor shall be calculated by dividing the Agency's total initial equity contribution based on sale
of the Property to Homebuyer at an Affordable Housing Cost ("Agency Contribution") by the
sum of the Agency Contribution plus Homebuyer's contribution ("Homebuyer Contribution").
In other words, the Agency Contribution shall be the numerator, and the sum of the Agency
Contribution plus the Homebuyer Contribution shall be the denominator of a fraction that equals
a percentage that is the Variable Applicable Factor (subject to Section (13(b)(i)).
Variable Applicable Factor= Aeencv Contribution
Agency Contribution+ Homebuyer Contribution
For example, if the Agency Contribution equals $30,000 and the Homebuyer
Contribution equals $250,000, the Variable Applicable Factor would equal 10.7% ($30,000
divided by the sum of $30,000 plus $250,000).
10.7% (Variable Applicable Factor) = $30,000 (Agency Contribution)
$30,000 (Agency Contribution) + $250,000 (Homebuyer
Contribution) = ($280,000)
(i) The "Agency Contribution" is the sum of the following amounts
contributed by Agency to the purchase price of the Property: (i) principal amount of the
Homebuyer Assistance Loan Amount, i.e., the Affordable Housing Cost Subsidy (as hereinafter
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defined); and (ii) the principal amount(s) of any other loan(s) or subsidy(ies) provided by
Agency.
(ii) The "Homebuyer Contribution" is the sum of the following
amounts contributed by Homebuyer to the purchase price of the Property: (i) the principal
amount of the First Lien purchase money mortgage; (ii) Homebuyer's cash down payment plus
Homebuyer's portion of closing costs; and (iii) the original principal amount of loans(s) or other
subsidy(ies) secured by Homebuyer, (excluding and other than loan(s) or subsidy(ies) provided
by Agency (as set forth in the definition of Agency Contribution)) and applied by Homebuyer
towards the purchase of the Property.
(iii) The "Purchase Price" is the original purchase price paid by
Homebuyer (or Homebuyer as the qualified successor owner of the Property) to the seller of the
Property ("Seller") for Seller's interest in the Property, exclusive of escrow fees, title insurance
costs, broker's commissions, loan fees or any other closing or transaction costs. Subject to the
provisions set forth hereinbelow, the value of Qualified Capital Improvements shall be added to
the Purchase Price when calculating the Contingent Equity Participation Amount.
(iv) The "Sales Price" is the price to be paid by the prospective buyer
(who is not a qualified Moderate Income Household) of the Property ("Buyer") to Homebuyer
(or Homebuyer as the qualified successor owner of the Property) for Homebuyer's interest in the
Property, exclusive of reasonable escrow fees, title insurance costs, broker's commissions, loan
fees or any other closing or transaction costs. The Sales Price shall be established in conformity
with Section 13(h)(i) hereof. In the event of Homebuyer's refinancing, failure to occupy, or
default, the "Sales Price" shall be established in conformity with Section 13(h)(ii).
(v) The "Affordable Housing Cost Subsidy" is the amount deemed to
be a subsidy that Agency has provided to Homebuyer by making the Property available for
purchase at a price which constitutes an Affordable Housing Cost. The Affordable Housing Cost
Subsidy equals the difference between the appraised fair market value of the Property (which
appraisal shall be at Agency's cost) as of the date of the Agreement and the Affordable Housing
Cost.
(i) Exception Calculation. Notwithstanding the above, the Variable
Applicable Factor shall equal the eater of fifty percent (50%) or the Variable Applicable Factor
calculated pursuant to Section 13(b); provided however, in the event Homebuyer receives a First
Lien loan from the California Housing Finance Agency or a First Lien loan the source of
proceeds of which are from tax exempt bonds, then the Variable Applicable Factor shall equal
the Variable Applicable Factor percentage calculated pursuant to Section 13(b).
(c) Using the Variable Applicable Factor to Determine the Contingent
Equity Participation Amount. The Contingent Equity Participation Amount is calculated by
multiplying the Variable Applicable Factor by the difference between the Sales Price and the
Purchase Price. For example, if the Variable Applicable Factor equals 10.7%, the Contingent
Equity Participation Amount would then equal 10.7% (Variable Applicable Factor) x (Sales
Price minus the Purchase Price).
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In the above example, if the Sales Price equals $380,000 and the Purchase Price
equals $280,000, the Contingent Equity Participation Amount would equal $10,700 (10.7% x
($380,000 minus $280,000)).
10.7% (Variable Applicable Factor) x $100,000 (Sales Price- Purchase Price) = $10,700 (Contingent
Equity Participation Amount).
(d) Calculation of Contingent Equity Participation Amount for
Subsequent Homebuyers. If pursuant to Section 4 of the Loan Agreement, a Buyer has fully
assumed Homebuyer's obligations under the Agreement, the Promissory Note, the Agency Deed
of Trust, the Notice of Affordability Restrictions, and this Restriction, and thereafter the new
Buyer, as the successor Homebuyer, causes an event of acceleration to occur, the Contingent
Equity Participation Amount to be paid by such Buyer shall be calculated by multiplying the
Variable Applicable Factor, established in Section 13(b), by the difference between the Sales
Price, established in conformity with Section 13(h), and the Purchase Price.
(e) No Appreciation or Depreciation in Value of Property. If an event of
acceleration occurs at a time when the Property has not appreciated or the value of the Property
has depreciated (i.e., the Sales Price is less than the Purchase Price), then no Contingent Equity
Participation Amount is due by Homebuyer to Agency.
(f) Qualified Capital Improvements. The value of any Qualified Capital
Improvements completed by Homebuyer during Homebuyer's ownership of the Property shall be
added to the Purchase Price when calculating the Contingent Equity Participation Amount only
if, not later than thirty (30) days prior to the event of acceleration causing the Contingent Equity
Participation Amount to become immediately due and payable pursuant to Section 11(b),
Homebuyer submits the following to Agency: (i) an itemized list of the Qualified Capital
Improvements, (ii) reliable proof of completion of the Qualified Capital Improvements (as
evidenced e.g., by final building permits, a certificate of completion or original paid invoices or
construction contracts), and (iii) an appraisal from a certified appraiser, in form and substance
reasonably acceptable to the Executive Director, the conclusion of which is that the Qualified
Capital Improvements have added the stated amount to the fair market value of the Property.
If, within (30) days of receipt of the information concerning the Qualified Capital
Improvements, Agency questions the claimed increase in the value of the Property by reason of
said Qualified Capital Improvements, Agency and Homebuyer may, by mutual agreement,
establish the value of the Qualified Capital Improvements or Agency may require an appraisal of
the Property, at Homebuyer's expense, by a second independent certified appraiser appointed by
the Agency to determine the fair market value of the Qualified Capital Improvements.
(g) Credit to Homebuyer. Notwithstanding the foregoing provisions of this
Section 13, calculation of the Contingent Equity Participation Amount is subject to a superior
right of Homebuyer to receive credit in calculation of the Purchase Price for money paid by
Homebuyer post acquisition and during the term of Homebuyer's ownership of the Property for
installment payments of mortgage principal, pursuant to the First Lien actually made by
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Homebuyer, in addition to the fair market value of Qualified Capital Improvements consistent
with the requirements of Section 13(f) hereof.
(h) Determination of Sales Price; Appraisal.
(i) Upon Sale of the Property. In the event of a proposed sale of the
Property by Homebuyer that does not conform to Section 4 herein, and not less than thirty (30)
days after Agency receives actual notice of the opening of escrow in connection therewith, the
Agency may elect to appoint a certified, independent appraiser to conduct an appraisal of the
Property, at Homebuyer's expense, to assist Agency in determining if the Sales Price is at or near
the fair market value of the Property at such time. If the Sales Price is determined by the
appraisal to be three percent (3%) or more below the fair market value of the Property as
estimated in said appraisal, then the "Sales Price" for purposes of determining the Contingent
Equity Participation Amount shall be the fair market value of the Property established in said
appraisal.
(ii) Upon Refinancing/Failure to Occupy/Default. In the event of
refinancing, failure to occupy the Property in accordance with Section 10 hereof, or default or
breach of any provision of the Loan Agreement which causes the Contingent Equity
Participation Amount to become immediately due and payable, the "Sales Price" for purposes of
determining the Contingent Equity Participation Amount shall be determined by an appraisal of
the Property. Agency shall appoint a certified independent appraiser to conduct an appraisal of
the Property, at Homebuyer's expense. Homebuyer agrees that in such event the Contingent
Equity Participation Amount shall be the Variable Applicable Factor multiplied by the difference
between the Purchase Price and "Sales Price" as established by the appraised value of the
Property at the time of such refinancing, failure to occupy, or default of the Agreement.
(i) Homebuyer's Acknowledgment of Contingent Equity Participation
Amount.
HOMEBUYER ACKNOWLEDGES AND AGREES THAT
UPON SALE, TRANSFER OR REFINANCING OF THE
PROPERTY THAT DOES NOT COMPLY WITH SECTION
4 HEREIN, AND/OR UPON ANY OTHER EVENT OF
ACCELERATION AS SET FORTH IN SECTION 11(b)
HEREOF, HOMEBUYER SHALL PAY TO AGENCY IN
ADDITION TO THE AGENCY LOAN AMOUNT, A
CONTINGENT EQUITY PARTICIPATION AMOUNT
EQUAL TO A PERCENTAGE SHARE OF THE
APPRECIATION OF THE PROPERTY AS CALCULATED
PURSUANT TO THIS SECTION 13.
HOMEBUYER'S INITIALS:
14. Compliance with Laws; Governing Law. Homebuyer hereby agrees to comply
with all applicable ordinances, rules, and regulations of Agency. Nothing herein is intended to
be, nor shall it be deemed to be, a waiver of any City ordinance, rule, or regulation. This
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Restriction shall be governed by the laws of the State of California. Any legal action brought
under this declaration must be instituted in the Superior Court of the County of Orange, State of
California, or in the Federal District Court in the Central District, Santa Ana Division.
15. Indemnification. Homebuyer shall pay for, defend, indemnify and hold harmless
Agency and the City and their respective officers, officials, agents, employees, representatives,
and volunteers from and against any loss, liability, claim, or judgment relating in any manner to
Homebuyer's use of the Property or Homebuyer's violation of this Restriction. Homebuyer shall
remain fully obligated for the payment of taxes, liens and assessments related to the Property.
There shall be no reduction in taxes for Homebuyer, nor any transfer of responsibility to Agency
to make such payments, by virtue of this Restriction.
16. Insurance. Homebuyer shall maintain, during the term of this Restriction, an
all-risk property insurance policy insuring the Property in an amount equal to the full
replacement value of the structures on the Property. The policy shall contain a statement of
obligation on behalf of the carrier to notify the Agency of any material change, cancellation or
termination of coverage at least thirty (30) days in advance of the effective date of such material
change, cancellation or termination. Homebuyer shall transmit a copy of the certificate of
insurance to Agency within thirty (30) days of the effective date of this Restriction, and
Homebuyer shall annually transmit to Agency a copy of the certificate of insurance, signed by an
authorized agent of the insurance carrier setting forth the general provisions of coverage. The
copy of the certificate of insurance shall be transmitted to Agency at the address set forth in
Section 24 hereof. The form, content and issuer of any certificate of insurance approved by
Agency.
17. Defaults. Failure or delay by either party to perform any term or provision of this
Restriction which is not cured within thirty (30) days after receipt of notice from the other party
constitutes a default under this Restriction; provided, however, that if such default is of the
nature requiring more than thirty (30) days to cure, the defaulting party shall avoid default
hereunder by commencing to cure within such thirty (30) day period, and thereafter diligently
pursuing such cure to completion. The party who so fails or delays must immediately commence
to cure, correct or remedy such failure or delay, and shall complete such cure, correction or
remedy with diligence. The injured party shall give written notice of default to the party in
default, specifying the default complained of by the injured party. Except as required to protect
against further damages, the injured party may not institute proceedings against the party in
default until thirty (30) days after giving such notice. Failure or delay in giving such notice shall
not constitute a waiver of any default, nor shall it change the time of default.
18. Non-Waiver. Failure to exercise any right Agency may have or be entitled to, in
the event of default hereunder, shall not constitute a waiver of such right or any other right in the
event of a subsequent default.
19. Further Assurances. Homebuyer shall execute any further documents consistent
with the terms of this Restriction, including documents in recordable form, as Agency shall from
time to time find necessary or appropriate to effectuate its purposes in entering into this
Restriction.
EXHIBIT D-14 TO ATTACHMENT NO. 11
Affordable Housing Resale Restriction
DOC SOG1400673A412 00 2 72-0 0 01
80A-463
20. Governing Law. Homebuyer hereby agrees to comply with all ordinances, rules
and regulations of Agency and the City. Nothing in this Restriction is intended to be, nor shall it
be deemed to be, a waiver of any City ordinance, rule or regulation. This Restriction shall be
governed by the laws of the State of California. Any legal action brought under this Restriction
must be instituted in the Superior Court of the County of Orange, State of California, or in the
Federal District Court in the Central District of California, Santa Ana Division.
21. Amendment of Restriction. No modification, rescission, waiver, release or
amendment of any provision of this Restriction shall be made except by a written agreement
executed by Homebuyer and Agency.
22. Agency May Assign. Agency may, at its option, assign its rights hereunder
without obtaining the consent of Homebuyer.
23. Homebuyer Assignment Prohibited. In no event shall Homebuyer assign or
transfer any portion of this Restriction without the prior express written consent of Agency,
which consent shall be given by Agency only in the event that Agency determines that the
assignee or transferee is a Moderate Income Household, that the assignee's or transferee's
monthly housing payments are at an Affordable Housing Cost, and that the assignee or transferee
has expressly assumed this Restriction by execution of a written assignment document to be
provided by Agency. This section shall not affect or diminish Agency's right to assign all or any
portion of its rights hereunder.
24. Notices. Any notices, requests or approvals given under this Restriction from one
party to another may be personally delivered or deposited with the United States Postal Service
for mailing, postage prepaid, registered or certified mail, return receipt requested to the following
address:
To Homebuyer:
To Agency:
Community Redevelopment Agency
of the City of Santa Ana
20 Civic Center Plaza
Santa Ana, California 92701
Attention: Agency Executive Director
Either party may change its address for notice by giving written notice thereof to the
other party.
25. Attorneys' Fees and Costs. In the event that any action is instituted to enforce
payment or performance under this Restriction, the parties agree the non-prevailing party shall be
EXHMIT D-15 TO ATTACHMENT NO, 11
Affordable Housing Resale Restriction
DOCSOG I400673v 141200272-0001
80A-464
responsible for and shall pay all costs and all attorneys' fees incurred by such prevailing party in
enforcing this Restriction.
26. Entire Agreement. This Restriction, together with the Loan Agreement and all
attachments thereto and hereto, constitutes the entire understanding and agreement of the parties.
This Restriction integrates all of the terms and conditions mentioned herein or incidental thereto,
and supersedes all prior negotiations, discussions and previous agreements between the Agency
and Homebuyer concerning all or any part of the subject matter of this Restriction.
[Signature block begins on follow page.]
EXHIBIT D-16 TO ATTACHMENT NO. 11
Affordable Housing Resale Restriction
DOCSOC/1400673v 14/200272-0001
80A-465
IN WITNESS WHEREOF, the parties have executed this Restriction as of the date set
forth above.
HOMEBUYER:
Printed
By:_
Printed
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, a public body,
corporate and politic
By:,
Cynthia S. Nelson
Executive Director
ATTEST:
Maria D. Huizar, Clerk of the Council
APPROVED AS TO FORM:
Stradling Yocca Carlson & Rauth,
Agency Special Counsel
EXHIBIT D-17 TO ATTACHMENT NO. 11
Affordable Housing Resale Restriction
DOCSOG 1400673 v 14200272-0001
80A-466
ATTACHMENT NO. I TO AFFORDABLE HOUSING RESALE RESTRICTION
LEGAL DESCRIPTION OF PROPERTY
[to be inserted]
ATTACHMENT NO. 1 TO ATTACHMENT NO. 11
To Affordable Housing Resale Restriction
Legal Description of Property
DOC S OG 1400673v 14/200272.0001
80A-467
ATTACHMENT NO.2 TO AFFORDABLE HOUSING RESALE RESTRICTION
NOTICE OF INTENT TO TRANSFER
NOTICE OF INTENT TO TRANSFER MUST BE DELIVERED TO THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA PRIOR TO
PROCEEDING WITH ANY TRANSFER OF THE PROPERTY.
From:
To: Community Redevelopment Agency
of the City of Santa Ana
20 Civic Center Plaza
Santa Ana, California 92701
Attention: Agency Executive Director
Re: (street address)
Santa Ana, California ("Property")
Circle appropriate words: Homebuyer desires to [sell, convey, transfer by inheritance or
devise, lease, gift, otherwise transfer] the Property.
Pronosed Transferee:
Income of Proposed Transferee:
Household Size of Proposed Transferee:
Proposed Transfer Price:
If Agency has a program to help locate a Moderate Income purchaser, does Homebuyer
want Agency to help look for a Moderate Income purchaser to buy the Property?
Yes: - No:
Date
Signature of Homebuyer
daytime telephone number of Homebuyer
ATTACHMENT NO. 2 TO ATTACHMENT NO. 11
To Affordable Housing Resale Restriction
Notice of Intent to Transfer
DOCS0014 W67304l200272-0001
80A-468
ATTACHMENT NO.3 TO AFFORDABLE HOUSING RESALE RESTRICTION
RECORDING REQUESTED BY, )
AND WHEN RECORDED MAIL TO: )
Community Redevelopment Agency )
of the City of Santa Ana )
20 Civic Center Plaza )
Santa Ana, California 92702 )
Attn: Executive Director )
This document is exempt from payment of a
recording fee pursuant to Government Code
Sections 27383 and 6103.
Request for Notice Under Civil Code Section 2924b
In accordance with Section 2924b, Civil Code, request is hereby made that a copy of any
Notice of Default and a copy of any Notice of Sale under the Deed of Trust recorded as
Instrument No on 20_, i_nBook __ - ._ Page _, Official
Records of Orange County, California, and describing land therein as
See Exhibit A attached hereto
executed by
which _
Beneficiary,
as Trustor, in
named as
and
as
Trustee, be mailed to COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
SANTA ANA, a public body, corporate and politic, at 20 Civic Center Plaza, Santa Ana,
Califomia 92701, Attention: Executive Director and Community Development Director.
EXHIBIT C-1 TO ATTACHMENT NO. I1
To Affordable Housing Resale Restriction
Request for Notice Under Civil Code Section 2924b
DOCSOCJI 400673v 14/200272-0001
80A-469
NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE
WILL BE SENT ONLY TO THE ADDRESS CONTAINED THIS RECORDED REQUEST. IF
YOUR ADDRESS CHANGES, A NEW REQUEST MUST BE RECORDED.
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, a public body,
corporate and politic
Cynthia I. Nelson
Executive Director
ATTEST:
Maria D. Huizar, Clerk of the Council
EXHIBIT C-2 TO ATTACHMENT NO. 11
To Affordable Housing Resale Restriction
Request for Notice Under Civil Code Section 2924b
DOCSOC/7 400673vl41200272-0001
80A-470
EXHIBIT A TO REQUEST FOR NOTICE UNDER CIVIL CODE SECTION 2924b
LEGAL DESCRIPTION
[to be inserted]
EXHIBIT A TO ATTACHMENT NO. 11
To Request for Notice Under Civil Code Section 2924b
Legal Description
DOCSOG7400673v 14/200272.0001
80A-471
ATTACHMENT NO.4 TO AFFORDABLE HOUSING RESALE RESTRICTION
REIMBURSEMENT AGREEMENT
This REIMBURSEMENT AGREEMENT, dated as of --
20^
'Z
(`Reimbursement Agreement"), is hereby entered into by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corporate
and politic ("Agency"), and ("Homebuyer").
RECITALS
A. Homebuyer is purchasing a condominium located at j Santa
Ana, California ("Property").
B. Agency and Homebuyer have executed an Affordable Housing Resale Restriction
("Restriction") which requires that for a forty-five (45) year period the Property be sold only to a
Moderate Income Household at an Affordable Housing Cost, which may result in purchase
prices which are substantially less than the current fair market value of the Property.
C. Homebuyer is obtaining a loan ("Loan" or "First Lien") from a private lender
("Lender") for a portion of the costs of acquisition of the Property. A description of the Loan is
set forth in Exhibit "A" hereto, which is incorporated herein.
D. Pursuant to the Restriction, Agency has the right to acquire the Property in the
event that it becomes subject to a foreclosure proceeding, and has the right to make payments to
cure a default or delinquency on the Loan.
E. The right to make payments to cure a default or delinquency on the Loan will be
of benefit to Agency by allowing Agency to prevent the foreclosure of the Property, which will
prevent the early termination of the Restriction.
F. Agency's right to make payments to cure a default or delinquency on the Loan is
also of benefit to Homebuyer, by allowing Homebuyer to retain ownership of the Property and to
avoid foreclosure.
G. Agency desires to obtain the authority to make payments to cure a default or
delinquency on the Loan, on the condition that Homebuyer agrees to reimburse Agency for any
payments made to cure a default or delinquency on the Loan. In order to induce Agency to
obtain the authority to make payments to cure a default or delinquency on the Loan, Homebuyer
is willing to agree to reimburse Agency for any payments made to cure a Loan default or
delinquency. Homebuyer understands and acknowledges that Agency would not make payments
to cure a Loan default or delinquency but for Homebuyer's agreement to make such
reimbursements to Agency, as provided herein.
ATTACHMENT NO. 4-1 TO ATTACHMENT NO. 11
To Affordable Housing Resale Restriction
Reimbursement Agreement
DOCSOC/ 1400673 v 14/200272-Ono I
80A-472
NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed by and between the parties hereto as follows:
1. Cure of Loan Default. Agency hereby has the right, but not the obligation, to
make payments to the Lender to fully or partially cure any default or delinquency in payments of
the Loan.
2. Reimbursement Obligation of Homebuyer. Homebuyer hereby agrees to
reimburse Agency for any and all payments made by Agency to fully or partially cure any
default or delinquency in payments of the Loan. Such payments shall be made within thirty (30)
days after written demand is made therefor from Agency to Homebuyer. Agency may make
such written demand to Homebuyer at any time after making such payments. If such written
demand is made by personal delivery of such demand given to Homebuyer, or left at the
Property, such demand shall be deemed given immediately upon such delivery. If such written
demand is made by reliable overnight delivery service (such as FedEx), such demand shall be
deemed given one business day after deposit of the written demand with the overnight delivery
service. If such written demand is made by registered or certified U.S. Mail, such demand shall
be deemed given three business days after deposit of the written demand with the U.S. Postal
Service.
3. Security for Reimbursement. The obligation of Homebuyer to make the
reimbursement payments to Agency required under Section 2 shall be secured by a deed of trust
which shall encumber Homebuyer's fee title to the Property. Such deed of trust shall be in the
form attached hereto as Exhibit "B;" which is hereby incorporated herein. Such deed of trust
shall be junior and subordinate to the deed of trust which secures the Loan. Homebuyer consents
to recordation of such deed of trust in the official records of Orange County, California.
4. Notice of Default and Delinquency. Homebuyer agrees to deliver to Agency a
copy of any notice of default or delinquency in repayment of the Loan which Homebuyer
receives from or on behalf of the Lender. Such notices shall be delivered to Agency within five
(5) days of Homebuyer's receipt of such notice from the Lender.
5. Waivers.
a. Homebuyer expressly agrees that any payment due hereunder may be
extended from time to time at Agency's sole and absolute discretion and that Agency may accept
security in consideration for any such extension or release any security for this Reimbursement
Agreement at its sole discretion all without in any way affecting the liability of Homebuyer.
b. No extension of time for payment of the amounts due pursuant to this
Reimbursement Agreement made by agreement by Agency with any person now or hereafter
liable for the payment of this Reimbursement Agreement shall operate to release, discharge,
modify, change or affect the original liability of Homebuyer under this Reimbursement
Agreement, either in whole or in part.
ATTACHMENT NO. 4-2 TO ATTACHMENT NO. 11
To Affordable Housing Resale Restriction
Reimbursement Agreement
DOCSOC11400673v 74!200272.0001
80A-473
C. The obligations of Homebuyer under this Reimbursement Agreement shall
be absolute and Homebuyer waives any and all rights to offset, deduct or withhold any payments
or charges due under this Reimbursement Agreement for any reasons whatsoever.
d. Homebuyer waives presentment, demand, notice of protest and
nonpayment, notice of default or delinquency, notice of acceleration, notice of costs, expenses or
leases or interest thereon, notice of dishonor, diligence in collection or in proceeding against any
of the rights of interests in or to properties securing of this Reimbursement Agreement, and the
benefit of any exemption under any homestead exemption laws, if applicable.
e. No previous waiver and no failure or delay by Agency in acting with
respect to the terms of this Reimbursement Agreement shall constitute a waiver of any breach,
default, or failure or condition under this Reimbursement Agreement. A waiver of any term of
this Reimbursement Agreement must be made in writing and shall be limited to the express
written terms of such waiver.
6. Attorneys' Fees and Costs. Homebuyer agrees that if any amounts due under
this Reimbursement Agreement are not paid when due, Homebuyer shall pay, in addition, all
costs and expenses of collection and reasonable attorneys' fees paid or incurred in connection
with the collection or enforcement of this Reimbursement Agreement, whether or not suit is
filed.
7. Miscellaneous.
a. Term of Agreement. This Reimbursement Agreement shall take effect
upon the date set forth in the first paragraph hereof and shall terminate upon the final payment in
full of the Loan.
b. Successor is Deemed Included in All References to Predecessor.
Whenever in this Reimbursement Agreement either Homebuyer or Agency is named or referred
to, such reference shall be deemed to include the successors or assigns thereof, and all the
covenants and agreements in this Reimbursement Agreement contained by or on behalf of
Homebuyer or Agency shall bind and inure to the benefit of the respective successors and
assigns thereof whether so expressed or not.
C. Amendment. Homebuyer and Agency may alter, modify or cancel, or
agree or consent to alter, modify or cancel this Reimbursement Agreement by a writing executed
by both of them at any time.
d. Notices. All notices, certificates or other communications hereunder shall
be sufficiently given and shall be deemed to have been received in the manner and to the
addresses set forth in Section 24 of the Restriction.
e. Further Assurances and Corrective Instruments. Homebuyer and the
Agency agree that they shall, from time to time, execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such supplements hereto and such further instruments as
may reasonably be required.
ATTACHMENT NO. 4-3 TO ATTACHMENT NO. 11
To Affordable Housing Resale Restriction
Reimbursement Agreement
DOCS00 1400673v 14/200272-0001
80A-474
f. Execution in Counterparts. This Reimbursement Agreement may be
executed in several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
g. Applicable Law. This Reimbursement Agreement shall be governed by
and construed in accordance with the laws of the State of California.
h. Captions. The captions or headings in this Reimbursement Agreement
are for convenience only and in no way define, limit or describe the scope or intent of any
provisions of this Reimbursement Agreement.
i. Definitions. Any terms used herein but not separately defined herein shall
be defined as provided in the Restriction and Homebuyer Loan Agreement, as applicable.
[Signature block begins on follow page.]
ATTACHMENT NO. 4-4 TO ATTACHMENT NO. 11
To Affordable Housing Resale Restriction
Reimbursement Agreement
DOCSOC11400673041200272-0001
80A-475
IN WITNESS WHEREOF, Homcbuyer and Agency have caused this Reimbursement
Agreement to be executed by their duly authorized respective officers, all as of the date first
above written.
HOMEBUYER:
By:_
Printed
Printed
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, a public body,
corporate and politic
Cynthia J. Nelson
Executive Director
ATTEST:
Maria D. Huizar, Clerk of the Council
APPROVED AS TO FORM:
Stradling Yocca Carlson & Rauth,
Agency Special Counsel
ATTACHMENT NO, 4-5 TO ATTACHMENT NO. 1 I
To Affordable Housing Resale Restriction
Reimbursement Agreement
DOCSOG1400673v141200272-0001
80A-476
EXR BIT "A" TO RERVIBURSEMENT AGREEMENT
Name of Homebuyer:
Address of Property:
Name of Lender:
Amount of Loan:
EXHIBIT A TO ATTACHMENT NO. I I
To Reimbursement Agreement
Affordable Housing Resale Restriction
DOCSOU1400673v141200272-0001
80A-477
EXHIBIT `B" TO REIMBURSEMENT AGREEMENT
RECORDING REQUESTED BY, )
AND WHEN RECORDED MAIL TO: )
Community Redevelopment Agency )
of the City of Santa Ana )
20 Civic Center Plaza )
Santa Ana, California 92702 )
Attn: Executive Director 1
This document is exempt from payment of a
recording fee pursuant to Government Code
Sections 27383 and 6103.
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(SHORT FORM)
This DEED OF TRUST is made as of , 20 between
herein called TRUSTOR, whose address is
Santa Ana, California 9
herein called TRUSTEE, and COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate
and politic, herein called BENEFICIARY.
WITNESSETH: That Truster grants to Trustee in trust, with power of sale, that property
in the City of Santa Ana, County of Orange, State of California, described as:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF.
together with the rents, issues and profits thereof, subject, however, to the right, power and
authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents,
issues and profits for the purpose of securing (1) payment of any sums advanced on behalf of
Trustor according to the terms of a Reimbursement Agreement of even date herewith made by
Trustor and Beneficiary, and extensions or renewals thereof, (2) the performance of each
agreement of Trustor incorporated by reference or contained herein, and (3) payment of
additional sums and interest thereon which may hereafter be loaned to Trustor, or his successors
or assigns, when evidenced by a promissory note or notes reciting that they are secured by this
Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the property above
described, Trustor expressly makes each and all of the agreements, and adopts and agrees to
perform and be bound by each and all of the terms and provisions set forth in subdivision A. and
it is mutually agreed that each and all of the terms and provisions set forth in subdivision B of
the fictitious deed of trust recorded in Orange County August 17, 1964, and in all other counties
August 18, 1964, in the book and at the page of Official Records in the office of the county
EXHIBIT B-1 TO ATTACHMENT NO. 11
To Reimbursement Agreement
Deed of Trust With Assignment of Rents
DOCS001 400673 v 141200272-0001
80A-478
recorder of the county where said property is located, noted below opposite the name of such
county, namely:
COUNTY BOOK PAGE COUNTY BOOK PACE COUNTY BOOK PAGE COUNTY BOOK PAGE
Alameda 1288 556 Kings 858 713 Placer 1028 379 Sterna 38 187
Alpine 3 130.31 fake 437 110 Plums 166 1307 Siski3vu 506 762
Amad.r 133 438 I. sen 192 367 Riverside 3778 347 Sulono 1287 621
Butte 1330 513 lad Anger 33878 874 Sacramento 5039 Im Seamans 2067 427
Cabsvcros 185 338 Madcm 911 136 Sanaenlta 300 405 Stanislaw 1970 56
Colus. 323 391 Morin 1849 122 S. Bernardino 6213 763 Suter 655 585
Canna Case 4694 1 Mariposa % 453 S. Fmneise. A-S03 596 Tehana 457 183
Del Norte 101 549 Mendocino 667 99 S. Joaquin 2855 263 Trinity 108 595
El Dorado 707 635 Merced 1660 753 S. Luis Obispo 1311 137 Tukve 2530 108
Faesm $052 623 Mods 191 93 San Ma¢o 4778 175 Tuolumne 177 160
Glem 469 76 Mon. 69 302 Sane Barbaro 2065 881 YCnim 2607 237
HusMeldl WI 83 Mammy 357 239 Sane Ct. 6626 667 Y010 769 16
Imperial 1189 701 Napa 704 742 Save C= 1638 607 Yuba 399 693
Inyo 165 672 Nevada 363 94 SSassa goo 633
K. 3756 690 Orange 7182 18 San Diego 1964 149774
Series 5
shall inure to and bind the parties hereto, with respect to the property above described. Said
agreements, terms and provisions contained in said subdivisions A and B, (identical in all
counties, and printed on pages 3 and 4 hereof) are by the within reference thereto, incorporated
herein and made a part of this Deed of Trust for all purposes as fully as set forth at length herein,
and Beneficiary may charge for a statement regarding the obligation secured hereby, provided
the charge therefor does not exceed the maximum allowed by law.
The undersigned Trustor, requests that a copy of any notice of default and any notice of
sale hereunder be mailed to him at his address hereinbefore set forth.
Trustor
Trustor
EXHIBIT B-2 TO ATTACHMENT NO. 11
To Reimbursement Agreement
DOCS OCJ1400673v14l200272-01101 Deed of Trust With Assignment of Rents
80A-479
EXHIBIT A TO DEED OF TRUST SECURING REIMBURSEMENT AGREEMENT
LEGAL DESCRIPTION
[to be inserted]
EXHIBIT A-1 TO ATTACHMENT NO. 11
To Deed of Trust Securing Reimbursement Agreement
Legal Description
DOCSOCII400073Y 14/200272-0001
80A-480
EXHIBIT B
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded
in each county in California as stated in the foregoing Deed of Trust and incorporated by
reference in said Deed of Trust as being a part thereof as if set forth at length therein.
A. To protect the security of this Deed of Trust, Trustor agrees:
(I) To keep said property in good condition and repair; not to remove or
demolish any building thereon; to complete or restore promptly and in good and workmanlike
manner any building which may be constructed, damaged or destroyed thereon and to pay when
due all claims for labor performed and materials furnished therefor; to comply with all laws
affecting said property or requiring any alterations or improvements to be made thereon; not to
commit or permit waste thereof', not to commit, suffer or permit any act upon said property in
violation of law; to cultivate irrigate, fertilize, fumigate, prune and do all other acts which from
the character or use of said property may be reasonably necessary, the specific enumerations
herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory
to and with loss payable to Beneficiary. The amount collected under any fire or other insurance
policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as
Beneficiary may determine, or at option of Beneficiary, the entire amount so collected or any
part thereof may be released to Trustor. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and
expenses, including cost of evidence of title and attorney's attorneys' fees in a reasonable sum,
in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit
brought by Beneficiary to foreclose this Deed.
(4) To pay: at least ten days before delinquency all taxes and assessments
affecting said property, including assessments on appurtenant water stock; when due, all
encumbrances, charges and liens, with interest, on said property or any part thereof, which
appear to be prior or superior hereto; all costs, fees and expenses of this trust.
Should Tmstor fail to make any payment or to do any act as herein provided, then
Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon
Trustor and without releasing Trustor from any obligation thereof, may: make or do the same in
such manner and to such extent as either may deem necessary to protect the security hereof,
Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in
and defend any action or proceeding purporting to affect the security hereof or the rights or
powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance,
charge or lien which in the judgment of either appears to be prior or superior hereto; and, in
EXHIBIT B-1 TO ATTACHMENT NO. 11
To Reimbursement Agreement Deed of Trust
Non-Recordable Attachment
DOCSOCJ 1400673 v 141200272-0001
80A-481
exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable
fees.
(5) To Pay immediately and without demand all sums so expended by
Beneficiary or Trustee, with interest from date of expenditure at the amount allowed by law in
effect at the date hereof, and to pay for any statement provided for by law in effect at the date
hereof regarding the obligation secured hereby any amount demanded by the Beneficiary not to
exceed the maximum allowed by law at the time when said statement is demanded.
B. It is mutually agreed:
(1) That any award of damages in connection with any condemnation for
public use of or injury to said property or any part thereof is hereby assigned and shall be paid to
Beneficiary who may apply or release such monies received by him in the same manner and with
the same effect as above provided for disposition of proceeds of fire or other insurance.
(2) That by accepting payment of any sum secured hereby after its due date,
Beneficiary does not waive his right either to require prompt payment when due of all other sums
so secured or to declare default for failure so to pay.
(3) That at any time or from time to time, without liability therefor and
without notice, upon written request of Beneficiary and presentation of this Deed and said note
for endorsement, and without affecting the personal liability of any person for payment of the
indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the
making of any map or plat thereof; join in granting any easement thereon; or join in any
extension agreement or any agreement subordinating the lien or charge hereof.
(4) That upon written request of Beneficiary stating that all sums secured
hereby have been paid, and upon surrender of this Deed and said note to Trustee for cancellation
and retention or other disposition as Trustee in its sole discretion may choose and upon payment
of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The
recitals in such reconveyance or any matters or facts shall be conclusive proof of the truthfulness
thereof. The Grantee in such reconveyance may be described as "the person or persons legally
entitled thereto."
(5) That as additional security, Trustor hereby gives to and confers upon
Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the
rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by
Trustor in payment of any indebtedness secured hereby or in performance of any agreement
hereunder, to collect and retain such rents, issues and profits as they become due and payable.
Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or
by a receiver to be appointed by a court, and without regard to the adequacy of any security for
the indebtedness hereby secured, enter upon and take possession of said property or any part
thereof, in his own name sue for or otherwise collect such rents, issues, and profits, including
those past due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney's attorneys' fees, upon any indebtedness secured
EXHIBIT B-2 TO ATTACHMENT NO. 11
To Reimbursement Agreement Deed of Trust
Non-Recordable Attachment
D OCS OC/1400673 v 141200272-0001
80A-482
hereby, and in such order as Beneficiary may determine. The entering upon and taking
possession of said property, the collection of such rents, issues and profits and the application
thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice.
(6) That upon default Trustor in payment of any indebtedness secured hereby
or in performance of any agreement hereunder, Beneficiary may declare all sums secured hereby
immediately due and payable by delivery to Trustee of written declaration of default and demand
for sale and of written notice of default and of election to cause to be sold said property, which
notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this
Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of
said notice of default, and notice of sale having been given as then required by law, Trustee,
without demand on Truster, shall sell said property at the time and place fixed by it in said notice
of sale, either as a whole or in separate parcels, and in such order as it may determine, at public
auction to the highest bidder for cash in lawful money of the United States, payable at time of
sale. Trustee may postpone sale of all or any portion of said property by public announcement at
such time and place of sale, and from time to time thereafter may postpone such sale by public
announcement at the time fixed by the preceding postponement. Trustee shall deliver to such
purchaser its deed conveying the property so sold, but without any covenant or warranty, express
or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including Truster, Trustee, or Beneficiary as hereinafter
defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of
evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of:
all sums expended under the terms hereof, not then repaid, with accrued interest at the amount
allowed by law in effect at the date hereof; all other sums then secured hereby; and the
remainder, if any, to the person of persons legally entitled thereto.
(7) Beneficiary, or any successor in ownership of any indebtedness secured
hereby, may from time to time, by instrument in writing, substitute a successor or successors to
any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary
and duly acknowledged and recorded in the office of the recorder of the county or counties
where said property is situated, shall be conclusive proof of proper substitution of such successor
Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all
its title, estate, rights, powers and duties. Said instrument must contain the name of the original
Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and
the name and address of the new Trustee.
(S) That this Deed applies to, inures to the benefit of, and binds all parties
hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The
term Beneficiary shall mean the owner and holder, including pledgees, of the note secured
hereby, whether or not named as Beneficiary herein. In this Deed, whenever the context so
EXHIBIT B-3 TO ATTACHMENT NO. 11
To Reimbursement Agreement Deed of Trust
Non-Recordable Attachment
DOCSOCI I400673v 141200272-0001
80A-483
requires, the masculine gender includes the feminine and/or neuter, and the singular number
includes the plural.
(9) That Trustee accepts this Trust when this Deed, duly executed and
acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any
party hereto of pending sale under any other Deed of Trust or of any action or proceeding in
which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
EX EBIT B-4 TO ATTACHMENT NO. 11
To Reimbursement Agreement Deed of Trust
Non-Recordable Attachment
DOCS00I 400673v 14/200272-0001
80A-484
EXHIBIT C
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
TO ,TRUSTEE
The undersigned is the legal owner and holder of the note or notes, and of all other
indebtedness secured by the foregoing Deed of Trust. Said note or notes, together with all other
indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are
hereby requested and directed on payment to you of any sums owing to you under the terms of
said Deed of Trust, to cancel said note or notes above mentioned, and all other evidences of
indebtedness secured by said Deed of Trust delivered to you herewith, together with the said
Deed of Trust, and to reconvey, without warranty, to the parties designated by the terms of said
Deed of Trust, all the estate now held by you under the same.
Dated:
Please mail Deed of Trust,
Note and Reconveyance to
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures Both must be
delivered to the Trustee for cancellation before reconvevance will be made.
DEED OF TRUST
with power of sale
TRUSTEE
EXHIM C-I TO ATTACHMENT NO. 11
To Reimbursement Agreement Request for Full Conveyance
Non-Recordable Attachment
DOC SOU1400673v141200272-0001
80A-485
EXHIBIT "D"
PROGRAM DISCLOSURE STATEMENT
I/we
understand and agree that the provision of financial assistance from the
Redevelopment Agency of the City of Santa Ana ("Agency")
Housing Implementation Program ("Program") is conditional on a
but not limited to:
(Homebuyer)
Community
under Agency's Affordable
number of factors, including,
• Uwe are buying a single family home within the City of Santa Ana, which is
available to me/us at Affordable Housing Cost pursuant to Health & Safety Code
Section 50052.5
• I/we must qualify as a Moderate Income Household pursuant to and as defined in
the California Health & Safety Code Sections 50093.
• I/we must qualify for a first mortgage home loan from an institutional lender
acceptable to Developer and Agency.
• I/we must pay at least three percent (3%) of the home purchase price from my/our
own funds, except as otherwise permitted by the Lender.
• I/we must qualify for assistance under the guidelines of the Program.
I/We further understand and agree that:
I/we will be responsible for repaying the finance assistance provided by Agency.
If I/we comply with all of the requirements of the Program, Uwe will owe no
interest on Homebuyer Assistance Loan and the principal amount that Uwe owe to
the Agency pursuant to the Program will be forgiven upon the forty-fifth (45th)
anniversary of the date of the Promissory Note executed pursuant to the Program.
The Homebuyer Assistance Loan Amount and the Contingent Equity
Participation Amount will be immediately due and payable upon sale or transfer
of the Property or if Itwe refinance our first mortgage home loan without the
Agency's written approval or if Uwe no longer occupy the Property as my/our
principal residence or I/we are in default of any obligation under the Loan
Agreement which is a part of the Program. I/we understand that the Contingent
Equity Participation Amount is interest on the Homebuyer Assistance Loan,
which will provide the Agency a share of the appreciation in the value of the
Property if I/we sell, transfer, or refinance the Property. Itwe acknowledge that a
Contingent Equity Participation Amount will be payable by me/us upon the
occurrence of each and every event as described in Section 1.2(f) of the Loan
Agreement.
Uwe may prevent the Contingent Equity Participation Amount and the principal
amount of the Note from becoming due and payable by retaining the Property, or
EXHIBIT D-I TO ATTACHMENT NO. 11
To Affordable Homebuyer Loan Agreement
Program Disclosure Statement
DOCSOC11400673v14/200272-0001
80A-486
by selling or otherwise conveying the Property to a Moderate Income Household
at an Affordable Housing Cost in strict conformity Program requirements. This
may restrict the persons to whom we may sell the Property, and may result in a
sales price which is less than the fair market value of the Property.
For a forty-five (45) year period, the Property may only be transferred to a
Moderate Income Household at an Affordable Housing Cost and the Property
must be and remain owner-occupied. In my/our sole discretion, Uwe may elect to
cause an acceleration under the Note by transferring the Property at a price in
excess of an Affordable Housing Cost in consideration for paying the Agency the
Contingent Equity Participation Amount.
After the forty-five (45) year term of the Homebuyer Assistance Loan, Uwe may
sell the Property to any person regardless of their income at the Property's fair
market value.
Uwe have a right to cancel or rescind this loan at any time prior to midnight on the
third business day after the Loan Agreement is signed by sending a notice of
my/our decision to rescind or cancel Homebuyer Assistance Loan to:
Community Redevelopment Agency
of the City of Santa Ana
20 Civic Center Plaza
Santa Ana, California 92701
Attention: Agency Executive Director
• During the term of Homebuyer Assistance Loan, I/we intend to continuously
occupy the Property and Uwe shall not rent or lease the Property.
• Uwe may be responsible for paying an appraisal fee in connection with my/our
sale, transfer, or refinance of the Property, or if the Note becomes due and
payable because Uwe am/are in default of any provisions of the Loan Agreement.
• Agency shall not be held responsible for any costs associated with the home Uwe
purchase with such assistance including, but not limited to, any loan fees or
charges, any charges for appraisals, or any escrow costs or other costs relating to
the transfer of the Property.
• Agency cannot ensure that information provided by or on my/our behalf will be
kept confidential.
• Agency shall not be responsible for the selection of a home, the selection of a
lender providing funds assisting in the purchase of the home, providing
information concerning other public or private sources of loans, or the
competitiveness of the terms of the Program. I/we assume all responsibility for
determining whether Uwe will inform myself/ourselves as to the availability and
terms of other public or private loans.
EXHIBIT D-2 TO ATTACHMENT NO. 1 I
To Affordable Homebuyer Loan Agreement
Program Disclosure Statement
DOCSOG I400673v 141200272-0001
80A-487
Agency shall not be charged with the knowledge of the contents of the documents
of my/our primary lender.
Agency has caused our purchase of the Property to be at an Affordable Housing
Cost for a Moderate Income Household, and thereby provided financial assistance
to me/us under the Program, which may be considered to be income for purposes
of federal or state income taxes and Agency shall not be held responsible for the
payment of any taxes which Uwe may incur by virtue of the receipt of such
financial assistance.
Our Monthly Housing Costs may not exceed $ per month in
order to obtain assistance from the Agency.
HOMEBUYER:
Printed Name:
Printed
EXHIBIT D-3 TO ATTACHMENT NO. 11
To Affordable Homebuyer Loan Agreement
Program Disclosure Statement
DOCSOC11400673v 14/200272.9001
80A-488
ATTACHMENT NO. 12
NOTICE OF AFFORDABILITY RESTRICTIONS
RECORDING REQUESTED BY, )
AND WHEN RECORDED MAIL TO: )
Community Redevelopment Agency )
of the City of Santa Ana )
20 Civic Center Plaza )
Santa Ana, California 92702 )
Attn: Executive Director 1
This document is exempt from
payment of a recording fee
pursuant to Government Code
Sections 27383 and 6103.
NOTICE OF AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY
This Notice of Affordability Restrictions on Transfer of Property (or "Notice
of Affordability Restrictions") is executed and recorded pursuant to
Section 33334.3(f)(3)(B) of the California Health & Safety Code as amended by
AB 987, Chapter 690, Statutes of 2007 (herein, "Chapter 690"), and affects that
certain real property generally located at in the City
of Santa Ana, California ("City") as legally described in Exhibit A hereto
("Property"). The Community Redevelopment Agency of the City of Santa Ana, a
public body corporate and politic ("Agency"), and
("Homebuyer") have entered into that certain Homebuyer Loan Agreement dated
as of 20 ' ("Homebuyer Loan Agreement").
1. The Homebuyer Loan Agreement provides for affordability
restrictions and restrictions on the transfer of the Property, as more particularly set
forth in the Homebuyer Loan Agreement. A copy of the Homebuyer Loan
Agreement is on file with Agency as a public record and is deemed incorporated
herein. Reference is made to the Homebuyer Loan Agreement with regard to the
complete text of the provisions of such agreement and all deemed terms therein,
which provides for affordability restrictions and restrictions on the transfer of the
Property.
ATTACHMENT NO. 12- 1
D OCS OC/ 1400673 v 14/200272-0001
80A-489
2. The Homebuyer Loan Agreement generally provides for Agency to
lend to Homebuyer and for Homebuyer to borrow from Agency a loan in order to
assist Homebuyer's purchase of the Property pursuant to the Program and subject
to the terms and conditions set forth herein. For a period commencing upon the
date on which Homebuyer acquires fee tide to the Property and terminating on the
forty-fifth (45th) anniversary thereof, the Property may only be transferred to
another eligible, qualified Moderate Income Household at an Affordable Housing
Cost; such restrictions are set forth at greater length in a document entitled
Affordable Housing Resale Restriction (Conditions, Covenants, and Restrictions
Affecting Real Property and the Resale, Ownership, Occupancy, Maintenance, and
Other Matters Related to Real Property), substantially in the form of Exhibit "D"
to the Homebuyer Loan Agreement ("Affordable Housing Resale Restriction"),
which has been entered into by and between Agency and Homebuyer, and which is
expected to be recorded substantially concurrently herewith among the Official
Records of Orange County, California. The Affordable Housing Resale
Restriction and the Homebuyer Loan Agreement are deemed to be incorporated
herein by reference.
3. Section 4 of the Affordable Housing Resale Restriction provides as
follows:
664. Permitted Sales of the Property. Agency hereby permits sales
of the Property to proposed Transferees who are Moderate Income Households,
and are approved in accordance with this Section 4, provided the Sales Price does
not exceed an Affordable Housing Cost to such proposed Transferee ("Permitted
Transfers"). In the event that Homebuyer desires to Transfer the Property during
the Affordability Period, prior to the Transfer the owner shall notify Agency by
delivering a Notice of Intent to Transfer to Agency, which shall indicate the
identity of the proposed Transferee who desires to purchase the Property, whether
the purchaser is a Moderate Income Household, and whether the sales price is at an
Affordable Housing Cost. In addition to Homebuyer's and the proposed
Transferee's delivery of the Notice of Intent to Transfer, the following procedure
shall apply:
a. Notice to Agency. Homebuyer shall send the Notice of Intent
to Transfer to Agency at the address set forth in Section 24.
b. Qualification of Proposed Transferee. The proposed
Transferee shall provide Agency with sufficient information in the form provided
by Agency including without limitation, a certification as to the income and family
size of the proposed Transferee, for Agency to determine if the proposed
ATTACHMENT NO. 12-2
DOCS OG 1400673 v 14120027 2-0001
80A-490
Transferee is a Moderate Income Household, and the purchase price is at an
Affordable Housing Cost.
C. Certificates from Parties. Homebuyer and proposed
Transferee each shall certify in writing, in a form acceptable to Agency, that the
Transfer shall be closed in accordance with, and only with, the terms of the sales
contract and other documents submitted to and approved by Agency and that all
consideration delivered by the proposed Transferee to owner has been fully
disclosed to Agency. The written certificate shall also include a provision that in
the event a Transfer is made in violation of the terms of this Restriction or false or
misleading statements are made in any documents or certificate submitted to
Agency for its approval of the Transfer, Agency shall have the right to file an
action at law or in equity to make the parties terminate and/or rescind the sales
contract and/or declare the sale void notwithstanding the fact that the Transfer may
have closed and become final as between Homebuyer and Transferee.
d. Written Consent of Agency Required Before Transfer.
During the Affordability Period, the Property, and any interest therein, shall not be
conveyed by any Transfer except with the express written consent of Agency,
which consent shall be given only if the Transfer is in accordance with the
provisions of this Restriction. This provision shall not prohibit the encumbering of
title for the sole purpose of securing financing of the purchase price of the
Property.
C. Notice of Prohibited Transfer. Within twenty (20) days after
receiving notification of a proposed Transfer in accordance with Section 4a.,
Agency shall determine and give notice to Homebuyer as to whether the proposed
Transfer is a Permitted Transfer or Prohibited Transfer, or whether the Transfer
would cause an acceleration under the Note under Section 1.f. of the Agreement, in
which case, upon Homebuyer's payment of the Contingent Equity Participation
Amount as set forth in Section 3 of the Agreement such Transfer would be deemed
a Permitted Transfer. In the event that the proposed Transfer is a Prohibited
Transfer, such notice to Homebuyer shall specify the nature of the Prohibited
Transfer. If the violation is not corrected to the satisfaction of Agency within ten
(10) days after the date of the notice, or within such further time as Agency
determines is necessary to correct the violation, Agency may declare a Default
under this Restriction. Upon the declaration of a Default, Agency may apply to a
court of competent jurisdiction for specific performance of this Restriction, for an
injunction prohibiting a proposed sale or Transfer in violation of this Restriction,
for a declaration that the Prohibited Transfer is void, or for any such other relief as
may be appropriate.
ATTACHMENT NO. 12-3
DOCSOC/I400673 v 14/200272-0001
80A-491
f. Delivery of Documents. Upon the close of the proposed
Transfer, Homebuyer and Transferee, as applicable, shall provide the Agency with
a copy of the final sales contract, settlement statement, escrow instructions, all
certificates required by this Section 4 and any other documents Agency may
request."
4. The restrictions contained in the Affordable Housing Resale
Restriction commence upon the date on which Homebuyer acquires fee title to the
Property and terminate on the forty-fifth (45th) anniversary thereof.
5. The commonly known addresses for the Property is
6. The assessor's parcel numbers for the Property is
7. The legal description of the Property is attached hereto as Attachment
No. 1 and is incorporated herein by reference.
8. The Affordable Housing Resale Restriction, which includes the
affordability restrictions referenced above, is expected to be submitted for
recordation in the Office of the Orange County Recorder contemporaneously with
this Notice of Affordability Restrictions.
9. This Notice of Affordability Restrictions is intended merely to satisfy
the requirements of Chapter 690 of the CRL. The Homebuyer Loan Agreement
and the Affordable Housing Resale Restriction both remain in full force and effect
and are not amended or altered in any manner whatsoever by this Notice of
Affordability Restrictions.
10. Capitalized terms shall have the meaning established under the
Homebuyer Loan Agreement (including all Attachments thereto) excepting only to
the extent as otherwise expressly provided under this Notice of Affordability
Restrictions.
11. Persons having questions regarding this Notice of Affordability
Restrictions, the Homebuyer Loan Agreement or the Attachments thereto
(including the Affordable Housing Resale Restriction) should contact Agency at its
offices (20 Civic Center Plaza, Santa Ana, California 92701, or such other address
as may be designated by Agency from time to time).
ATTACHMENT NO. 12-4
DOCSOG I400673v 141200272-0001
80A-492
[Signature block begins on follow page.]
ATTACHMENT NO. 12-5
DOCSOG l 400673v 14/200272-000!
80A-493
HOMEBUYER:
By:
Printed Name:
By:
Printed Name:
AGENCY:
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF SANTA
ANA, a public body, corporate and politic
By:
Cynthia J. Nelson
Executive Director
ATTEST:
Maria D. Huizar, Clerk of the Council
APPROVED AS TO FORM:
Stradling Yocca Carlson & Rauth,
Agency Special Counsel
DOCSOO 1400673v 141200272-0001
ATTACHMENT NO. 12-6
80A-494
EXHIBIT A
LEGAL DESCRIMON
[to be inserted]
EXHIBIT A TO ATTACHMENT NO. 12
OOCS OC/ 1406673 v 14/200272-0001
80A-495
ATTACHMENT NO. 13
(LIST OF DEVELOPER'S CONSULTANTS
ELIGIBLE TO BE INCLUDED IN THE THIRD PARTY COSTS)
1. LAB Holding, LLC
2. City Ventures
3. William Hezmalhalch Associates, Inc.
4. Patricia Smith, ASLA
5. Fuscoe Engineering, Inc.
6. Green Dinosaur
7. Arelleno & Associates
8. Bocarsly Emden Cowan Esmail & Arndt, LLP
9. Concord Group
10. C & V Consulting
11. Site Design Studio
12. Advanced Utility Design, Inc.
The list set forth in this Attachment may be expanded to add additional consultants provided
Executive Director of Agency approves in writing Developer's proposed new consultant.
ATTACHMENT NO. 13
DOCSOGI 400673v 14200272-0001
80A-496