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HomeMy WebLinkAbout FULL PACKET_2011-04-18MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA CALLED TO ORDER ATTENDANCE PUBLIC COMMENTS - None CLOSED SESSION ITEMS APRIL 4, 2011 CLOSED SESSION CITY HALL, 8T" FLOOR, ROOM 831 20 CIVIC CENTER PLAZA SANTA ANA, CA 5:09 P.M. COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO COUNCILMEMBERS Absent: None STAFF Present: DAVID N. REAM, City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council 1A CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) *Friends of Lacy v. City of Santa Ana Orange County Superior Court Case No. 30- 2010- 00388033 *Mayor Pulido, Mayor Pro Tern Alvarez, and Councilmember Sarmiento excused themselves from proceedings of Closed Session Item 1A due to a conflict of interest and did not participate in consideration of this item. They left the conference room at 5 :43 p.m CITY COUNCIL MINUTES 1 APRIL 4, 2011 1 0A -1 Susie Kim v. City of Santa Ana, United States District Court Case No.SACV09 -01153 CJC (ANx) 1 B CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6 Agency Negotiators: Personnel Services Executive Director, Kathie Gonzalez Employee Organizations: Santa Ana Police Officers Association (POA) Santa Ana Police Management Association (PMA) Santa Ana Fireman's Benevolent Management Association (FBA) Santa Ana Fire Management Association (FMA) Service Employees' International Union (SEIU) Full -Time Employees Service Employees' International Union (SEIU) Part-time Civil Service Employees Confidential Association of Santa Ana (CASA) Santa Ana Management Association (SAMA) Executive Management (EM) 1C CONFERENCE WITH REAL PROPERTY NEGOTIATOR pursuant to Government Code Section 54956.8: Subject Property: 1901 W. Walnut Street Negotiating Party: Orange County Children's Therapeutic ARTS Center Terms under Negotiation: Terms of lease on subject property City Representative: David N. Ream, City Manager 1D PUBLIC EMPLOYEE EMPLOYMENT AND APPOINTMENT pursuant to Government Code Section 54957(b)(1) Title: City Attorney; and City Manager CLOSED SESSION REPORT — See Item 19A. for Report. ADJOURNED THE CLOSED SESSION MEETING AT 6:15 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 2 APRIL 4, 2011 1 0A -2 REGULAR OPEN SESSION CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:23 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS COUNCILMEMBERS Absent: None STAFF Present: DAVID N. REAM, City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council Mayor Pulido Roger Aragon, Police Chaplain EMPLOYEE SERVICE AWARDS presented by MAYOR PULIDO to: 25 YEARS OF SERVICE Jose L. Perez, Community Services Supervisor, Parks, Recreation and Community Services CERTIFICATE OF RECOGNITION presented by MAYOR PRO TEM ALVAREZ to Vicki Maciha recognizing efforts on behalf of Mothers Against Drunk Driving (MADD). PROCLAMATION presented by COUNCILMEMBER MARTINEZ to Christine Cote in recognition of Donate Life Month. CITY COUNCIL MINUTES 3 APRIL 4, 2011 1 0A -3 CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER MARTINEZ to the following Santa Ana Bulls' members for winning the 2011 Division C Orange County Municipal Athletic Federation (OCMAF) Championship: Alex Badillo Christopher Carrera Alvaro Carrillo Jr. Jason Faulkner II Kristian Landeros'Sosa Isaiah J. Lopez Mathew Mejia Pektra Monh Verak Monh Jonathan Rivera Head Coach Alex Badillo and Assistant Coach/Team Mom Jessica Ayala CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER BENAVIDES to the following Valley High School Water Polo Team members for winning the C.I.F. Division 7 Championship: Bianka Baeza Jenny Silva Gabriela Chavez Lizbeth Silva Jazmin Hinojoza Dianna Solano and Cristina Magana Coach Fred Lammers CLOSED SESSION REPORT— Nothing to report. PUBLIC COMMENT • George Collins, concerned with recent Planning Commission Agenda item regarding housing opportunity ordinance that will be forthcoming to the City Council; asked Council to consider all options when deliberating on item. • Pearl Jemison- Smith, invited all to participate in the upcoming 25th Anniversary of Aids Walk OC that will be held at the Disneyland Resort on Sunday, May 1 st • Laura Cooley, spoke in opposition to elephant rides at the Santa Ana Zoo. • Brenda Calvillo, opposed to elephant rides at Santa Ana Zoo. • Alison Stanley, opposed to elephant rides. • Luis Mier, owner of bail bond company in the City; would like City to amend the loitering provision in and around the jails. • Don Mehr, also spoke on loitering by outside bail bond companies that are doing business through portable computers. • Dave Simon, opined that elephant should be banned. • Katie Maneeley, opined that City's ordinance on prohibiting use of exotic animals should be amended. • Rene Guzman, spoke on legalization of prescription drugs and invited all to participate in upcoming event "National Take Back Initiative" at Westend Substation April 30th from 10 a.m. to 2 p.m. • Alex Vega, reflected on the leadership of retiring City Manager David Ream and the legacy he leaves after more than 25 years as City Manager. CITY COUNCIL MINUTES 4 APRIL 4, 2011 1 0A -4 • Don Bauer, spoke in opposition to elephant rides. • Jay Andress, commented on recent personal extortion situation and asked Council to be careful in dealing with private citizens. • Bety Torres, presented retiring City Manager David Ream with a plaque for his efforts in unifying the Hispanic community. • Anneke Mendiola, opposed to elephant rides. • Mike Tardif, opined that proposed housing opportunity ordinance will discourage development. • Roy Alvarado, concerned with proposed housing opportunity ordinance that duplicates regulations; and commented on general police response. CONSENT CALENDAR MOTION: Approve Consent Calendar Items 10A through 25F with the following modifications: • Mayor Pro Tern Alvarez voted "No" on Item 19C MOTION: Sarmiento VOTE: MINUTES AYES: NOES: ABSTAIN: ABSENT: SECOND: Alvarez Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) None (0) None (0) None (0) ADMINISTRATIVE MATTERS 10A REGULAR MEETING MINUTES OF MARCH 21, 2011 - Clerk of the Council Office MOTION: Approve Minutes. ORDINANCES /SECOND READING In the event a Councilmember recorded an "abstention" before consideration of the following ordinance(s) on first reading, such abstention will also be reflected in the minutes for second reading CITY COUNCIL MINUTES 5 APRIL 4, 2011 1 0A -5 11A AMEND THE SANTA ANA MUNICIPAL CODE REGULATING TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT -OF -WAY - Public Works Agency Placed on first reading at the March 21, 2011 City Council meeting and approved by a vote of 7 -0. Published in the Orange County Reporter on March 25, 2011. MOTION: Place ordinance on second reading and adopt. ORDINANCE NS -2816 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADOPTING GUIDELINES FOR TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT OF WAY BOARDS / COMMISSIONS / COMMITTEES 13A NOMINATED BY COUNCILMEMBER TINAJERO AS THE WARD 6 REPRESENTATIVE FOR A FULL TERM EXPIRING DECEMBER 9, 2014 — Clerk of the Council MOTION: Appoint. Residing Name Board /Commission Ward Adrian Sarmiento Youth Commission, Associate 1 (Replacing Espinoza) MISCELLANEOUS ADMINISTRATION 19A -.. 19C CLOSED SESSION REPORT — Nothing to report. EXCUSED ABSENCES — None MOTION: Approve the requests for the destruction of obsolete records from various City departments in accordance with the retention schedule outlined in City Council Resolution 2006 -045. *Mayor Pro Tern Alvarez voted "No" on Item 19C. CITY COUNCIL MINUTES 6 APRIL 4, 2011 1 0A -6 19D REQUEST FOR PROPOSALS FOR PROVIDING A DISCOUNT PHARMACY CARD PROGRAM - Parks, Recreation & Community Services Agency MOTION: Authorize the Parks, Recreation and Community Services Agency to issue a Request for Proposals (RFP) to qualified companies to provide a discount pharmacy card program for the City of Santa Ana. BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A LIBRARY SERVICES ENHANCEMENT GRANT FUNDS - Parks, Recreation & Community Services Agency MOTION: 1. Authorize the City Manager and Clerk of the Council to execute an agreement subject to non - substantive changes approved by the City Manager and City Attorney. AGMT NO. 2011 -091 - With the California State Library in the amount of $5,000 for a Library Services and Technology Act, Our Lives are Our History grant. 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2011 -167 - Recognizing $5,000 from the California State Library in the LSTA Grant Awards revenue account and appropriating same to expenditure account. 20B DEMOLITION OF PROPERTY LOCATED AT 1901 W. WALNUT, RESCUE MISSION - Community Development Agency 1. Authorize the City Manager and the Clerk of the Council to execute a demolition contract, subject to non - substantive changes approved by the City Manager and City Attorney. AGMT NO. 2011 -092 - With Cardinal Environmental Consultants, Inc., dba 5M Contracting in the amount of $38,220 2. Approve a Funding Analysis with a total estimated demolition cost of $43,953. CITY COUNCIL MINUTES 7 APRIL 4, 2011 1 0A -7 3. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2011 -173 - Transferring funds in the amount of $43,953 from the General Non - Departmental Fund to the Non - Departmental Capital Outlay Fund. SPECIFICATIONS — PURCHASE OF EQUIPMENT AND SERVICES MOTION: Award in accordance with Request for Council Action. (Items 22A through 22F) 22A SPEC. NO. 11 -007 - BODY ARMOR VESTS Award contracts for a two - year period with provision for two one -year renewals, in an annual aggregate amount not to exceed $144,000 with the vendors listed below — Police Department and Finance & Management Services Vendor Location Galls, an ARAMARK Company, LLC Orange Quartermaster, Inc. Santa Ana 22B SPEC. NO. 11 -015 - STREET LAMPPOST LIGHT CONVERSION KITS - Award a contract to Sequoia Lighting Corporation in an amount not to exceed $130,000 — Public Works Agency and Finance & Management Services 22C SPEC. NO. 11 -016 - MANHOLE FRAMES AND COVERS - Award a contract to Alhambra Foundry Co., LTD for a one -year period, with provisions for two, one -year renewals in an annual amount not to exceed $40,000 - Public Works Agency and Finance & Management Services 22D SPEC. NO. 09 -037 - HAND TOOLS AND MISCELLANEOUS ITEMS - Renew the contract with W.W. Grainger, Inc. for a one -year period in an annual amount not to exceed $30,000 - Finance & Management Services 22E SPEC. NO. 07 -108 - JANITORIAL STOCK PAPER GOODS - Renew the contract with Gale Supply Company for a one -year period in an annual amount not to exceed $85,000 - Finance & Management Services 22F SPEC. NO. 11 -013 - DEFIBRILLATOR WARRANTY AND MAINTENANCE - Award a contract to ZOLL Medical Corporation to CITY COUNCIL MINUTES 8 APRIL 4, 2011 1 0A -8 extend the factory warranty and renew the maintenance contract for 10 defibrillators for a one -year period not to exceed $13,000; and increase the aggregate limit by $25,000 for miscellaneous supplies in an amount not to exceed $38,000 annually — Fire Department and Finance & Management Services AGREEMENTS MOTION: Authorize the City Manager and Clerk of the Council to execute the following agreements, subject to non - substantive changes approved by the City Manager and City Attorney and /or actions as noted on the Request for Council Action report. (Item 25A through 25E) 25A AGMT NO. 2011 -093 - MEDICAL SUPPLIES AND PHARMACEUTICALS - With Santa Ana Western Medical Center in an amount not to exceed $40,000 annually. - Fire Department 25B SETTLEMENT AGREEMENTS FOR BRISTOL STREET CORRIDOR (PROJECT NOS. 081700 AND 116744) - Public Works Agency • AGMT NO. 2011 -094 - With Teresa Arellano dba Santa Ana Professional Services for acquisition settlement for the business located at 828 North Bristol Street, Suite 202 in an amount of $21,800. • AGMT NO. 2011 -095 - With Barney Svardloff, Trustee; Nathan Ogints, Trustee and; Steven Iker, Trustee for the purchase of a portion of the property located at 1715 North Bristol in an amount of $90,000. • AGMT NO. 2011 -096 - With Livescan N More for acquisition settlement for the business located at 1631 North Bristol Street, Suite 201 in an amount of $20,405. 25C RIGHT -OF -WAY DEMOLITION, SURVEY, AND ENVIRONMENTAL ASSESSMENT SERVICES FOR CAPITAL IMPROVEMENT PROJECTS (CIP) PROJECTS - Public Works Agency • AGMT NO. 2011 -097 - With J & G Company for demolition services in an amount of $150,000. • AGMT NOS. 2011 -098 and 2011 -099 - With Johnson -Frank and Associates, and Coast Surveying for survey for an aggregate amount not to exceed $300,000. CITY COUNCIL MINUTES 9 APRIL 4, 2011 1 0A -9 • AGMT NOS. 2011 -100 and 2011 -101 - With Leighton Consulting Group Inc., and SCS for Environmental Assessment services for an aggregate amount not to exceed $200,000. 25D NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM (NPDES) COMMERCIAL /INDUSTRIAL INSPECTION SERVICES — Execute agreements for a total aggregate amount not to exceed $300,000 annually for a term of one year with options to renew for three additional one -year periods with the vendors listed below - Public Works Agency • AGMT NO. 2011 -102 - With EEC Environmental, Inc. • AGMT NO. 2011 -103 - With AMEC, Inc. 25E AGMT NO. 2011 -104 — ACQUISITION OF MULTI - FAMILY COMPLEX FUNDED BY THE NEIGHBORHOOD STABILIZATION PROGRAM LOCATED AT 326 S GARNSEY — Execute a loan agreement with Garnsey, LP in an amount not to exceed $4,291,188 - Community Development Agency * *END OF CONSENT CALENDAR ** BUSINESS CALENDAR ORDINANCES /FIRST READING 50A ORDINANCE AMENDING CHAPTER 18 AND 31 OF THE MUNICIPAL CODE PROHIBITING SMOKING IN CITY PARKS - Parks, Recreation & Community Services Agency MOTION: Continue item at staff's request. MOTION: Alvarez VOTE: AYES: NOES: ABSTAIN: ABSENT: SECOND: Sarmiento Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) None (0) None (0) None (0) CITY COUNCIL MINUTES 10 APRIL 4, 2011 1 0A -10 RESOLUTIONS 55A RESOLUTION CERTIFYING ENVIRONMENTAL IMPACT REPORT FOR SAN LORENZO SEWER LIFT STATION AND APPROVAL OF PROJECT - (Continued from the February 7, 2011 and February 20, 2011 City Council meeting by a vote of 7 -0.) - Public Works Agency MOTION: Continue item pending further review; item will be re- noticed. MOTION: Benavides SECOND: Alvarez VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 55B RESOLUTION AUTHORIZING A TWO -YEAR EXTENSION OF THE SOLAR PERMIT FEE WAIVER PROGRAM - Planning and Building Agency MOTION: Adopt a resolution. RESOLUTION NO. 2011 -020 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING A TWO -YEAR CONTINUANCE OF A PROGRAM TO ENCOURAGE SOLAR INSTALLATIONS BY TEMPORARILY WAIVING PERMITTING FEES MOTION: Alvarez VOTE: AYES: PUBLIC HEARINGS SECOND: Benavides Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) CITY COUNCIL MINUTES 11 APRIL 4, 2011 1 0A -11 75A PUBLIC HEARING - COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) FUNDING FY 2011 -2012 - Community Development Agency Legal Notice published in the O.C. Reporter on March 18, 2011. The Mayor opened the Public Hearing at 4:44 p.m. There were no speakers and the Hearing closed. Mayor Pulido proposed a 2 week continue for further review of recommendations. MOTION: Continue consideration of the matter to the April 18, 2011 City Council Meeting. MOTION: Martinez SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 75B PUBLIC HEARING - AMENDMENT TO DEVELOPMENT AGREEMENT NO. 2005 -02, CONDITIONAL USE PERMIT NO. 2011 -05, VARIANCE NO. 2011 -04, AND SITE PLAN REVIEW NO. 2011 -01 TO ALLOW A NEW MULTIPLE FAMILY RESIDENTIAL DEVELOPMENT LOCATED IN THE SPECIFIC DEVELOPMENT NO. 76 (SD -76) ZONING DISTRICT - 100 -140 EAST MACARTHUR BOULEVARD; FILED BY BILL MCKIBBIN FOR LYON COMMUNITY DEVELOPMENT - Planning and Building Agency Recommended Action approved by the Planning Commission on March 14, 2011 by a 7 -0 vote. Legal Notice published in the O.C. Reporter and notices mailed on March 25, 2011. *Mayor Pulido excused himself from proceedings of Item 75B due to a potential conflict of interest (campaign contribution) and did not participate in deliberation of this item. Mayor Pro Tern Alvarez assumed the Chair and presided over item Staff report presentation by Jay Trevino, Executive Director of Planning and Building. CITY COUNCIL MINUTES 12 APRIL 4, 2011 1 0A -12 Lyon Integral Multi - Family Residential Project Project Description • 300 condominium /apartment units with 2,100 square feet of retail • 4 -5 story wrap design • 660 parking stalls • Modern architecture Project Renderings Project Amenities • Swimming pool, outdoor fireplace, barbeque, benches and water features • Granite counter tops, hardwood floors, tiled bath tubs /showers, private balconies, and high -end appliances • Resident lounge • Fitness center • Enhanced landscaping palette Amendment to Development Agreement • Modify project applicant • Allow additional residential units • Will comply with existing provisions Conditional Use Permit • Review of multi - family projects in SD -76 zoning district • Project will provide high - quality residential development in urban village • Conditions of approval to ensure project quality Variance • Variance for tandem parking • Common method of parking in urban areas • Tandem parking to be assigned • Superior design vs. podium project • Require Parking Management Plan Addendum to EIR • Review of impacts from additional units • Minor increase in peak and daily trips • No impacts to intersections and road segments Project Analysis • Project in compliance with goals and objectives of General Plan and MacArthur Place specific development plan • Reinforce MacArthur Place as an urban village CITY COUNCIL MINUTES 13 APRIL 4, 2011 1 0A -13 • Continue to strengthen and energize southern gateway to Santa Ana • Provide a catalyst for investment in the community Chair Pro Tern Alvarez opened the Public Hearing at 7:47 p.m. There were no speakers and the Hearing closed. Council discussion ensued. Council requested that quality of project be consistent with condominium standards. Overall pleased with design — include pedestrian safety and lighting, and continue to introduce retail element to project design. Outreach efforts made with area neighborhood. Council asked that future developments include timeline to be conveyed as `for - sale" units. MOTION: 1. Adopt a resolution. RESOLUTION NO. 2011 -021 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE ADDENDUM TO THE FINAL ENVIRONMENTAL IMPACT REPORT NO. 2004 -02 AND APPROVING THE MITIGATION MONITORING AND REPORTING PROGRAM; APPROVING CONDITIONAL USE PERMIT NO. 2011 -05 AS CONDITIONED; APPROVING VARIANCE NO. 2011 -04 AS CONDITIONED TO ALLOW TANDEM PARKING; AND, APPROVING SITE PLAN REVIEW NO. 2011 -01 AS CONDITIONED FOR THE PROPERTY LOCATED AT 100 -140 EAST MACARTHUR BOULEVARD 2. Place ordinance on first reading and authorize publication of title. ORDINANCE NO. NS -2817 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND GRAND PLAN 2, LLC AND LYON INTEGRAL MACARTHUR PLACE, LLC MOTION: Sarmiento SECOND: Martinez VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Sarmiento, Tinajero (6) NOES: None (0) ABSTAINED Pulido (1) AND NOT PRESENT: ABSENT: None (0) CITY COUNCIL MINUTES 14 APRIL 4, 2011 1 0A -14 *Mayor Pulido returned at 8:08 p.m. and re- assumed the Chair. COUNCIL RECESSED AT 8:09 P.M. TO THE COMMUNITY REDEVELOPMENT AGENCY, FOLLOWED BY THE HOUSING AUTHORITY MEETING; THE CITY COUNCIL MEETING RECONVENED AT 8:10 P.M. WITH SAME MEMBERS PRESENT. COMMENTS 90A CITY MANAGER'S COMMENTS — None 90B CITY COUNCILMEMBER COMMENTS Councilmember Tinajero: • Invited all to attend upcoming little league tournaments that will be held at various parks throughout the City. Councilmember Benavides: • Pleased with project on MacArthur; City in need of quality homes and mixed -use areas; • Santa Ana Zoo hosting event 'Party for the Planet" on Saturday, April 9th • Thanked staff for new marquee at the Santa Ana Zoo. Mayor Pro Tern Alvarez: • Noted that City had approved Child Safety Zones 5 years ago due to Jessica's Law; District Attorney's Office making announcement at press conference to unveil their Zones, asked Police Department to make sure County Zones do not pre -empt City Zones and agendize at upcoming Public Safety Committee meeting to review Zones. Councilmember Sarmiento: • Comments on marquee at the entrance of Santa Ana Zoo; • Asked that all developers follow through on development standards as approved by the City Council and Planning Commission; and • City would be challenging Census 2010 data; believe process is antiquated resulting in inaccurate count — funds at City level lost and congressional districts to be redrawn. Councilmember Martinez • Congratulated UConn College Championship; CITY COUNCIL MINUTES 15 1 0A -15 for NCAA College Basketball APRIL 4, 2011 • Invited all to participate in upcoming Earth Day festivities on Saturday, April 16th; thanked Parks and Recreation staff for efforts; event combined with Neighborhood Heroes Awards. • Commented on recent radio interview with Larry Mantel to discuss beautification efforts at Downtown Santa Ana; and • Thanked Downtown Inc. for another successful Art Walk event held over the weekend. Councilmember Bustamante: • Commented on recent radio interview held in Downtown; • Successful Art Walk held over the weekend; • Congratulated and welcomed Chapter One restaurant on its grand opening; • Mater Dei has women and men's basketball championship teams that will be recognized at an upcoming council meeting; and • Invited all to the 2011 Floral Park Home and Garden Tour event to be held on April 16 and 17th and will include an antique car show. Mayor Pulido: • Commented on Orange County High School of the Arts recent performance; • Kudos to Downtown on successful Art Walk event; and • Adjourned in memory of Second Baptist Church Pastor John McReynolds. ADJOURNED- 8:29 P.M. - The next meeting of the City Council is scheduled for Monday, April 18, 2011 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Open Business Meeting in the Police Community Room, 60 Civic Center Plaza, Santa Ana, California. Adjourned in Memory of Reverend John Nix - McReynolds Maria Huizar Clerk of the Council CITY COUNCIL MINUTES 16 APRIL 4, 2011 1 0A -16 (ROH 03/14/11) ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND GRAND PLAN 2, LLC AND LYON INTEGRAL MACARTHUR PLACE, LLC THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The City enters into this Amendment to Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. The Planning Commission has, following a duly noticed public hearing, on March 14, 2011, recommended approval of this Amendment to Development Agreement. D. Entering into this Amendment to Development Agreement would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require the owner of MacArthur Place South to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. E. The City Council has held a noticed public hearing on this Ordinance and has considered all testimony presented thereto. F. The previously adopted and certified Final Environmental Impact Report EIR for the Nexus Project, No. ER 2004 -02, and its Addendum, have been approved and certified by this Council by resolution simultaneously with the introduction of this ordinance. Ordinance No. NS -XXX Page 1 of 3 11 A -1 G. The proposed project will not adversely affect the General Plan, as is expressly set forth in the Request for Council Action dated April 4, 2011, together with all supporting documents, including but not limited to, proposed resolutions, which are incorporated herein by this reference. Section 2. The Amendment to Development Agreement, a true and correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City with such non - substantive changes as may be authorized by the City Manager and City Attorney. The Clerk of the Council is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. Section 3. This ordinance shall not be effective unless and until Resolution No. 2011- is adopted and becomes effective. If said resolution is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this ordinance shall be null and void and have no further force and effect. Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of , 2011. APPROVED AS TO FORM: Joseph Straka, City Attorney JIM Ryan O. Hodge Assistant City Attorney Miguel A. Pulido Mayor 11 A -2 Ordinance No. NS -XXX Page 2 of 3 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 11 A -3 Ordinance No. NS -XXX Page 3 of 3 11 A -4 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M -30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE § 6103 FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and THE GRAND PLAN 2, LLC and LYON INTEGRAL MACARTHUR PLACE, LLC Dated: , 2011 Ordinance No. NS -xxxx Exhibit 1 11 A -5 FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA, and THE GRAND PLAN 2, LLC, and LYON INTEGRAL MACARTHUR PLACE, LLC This FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT ( "Fourth Amendment ") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ( "City"), THE GRAND PLAN 2, LLC, a California limited liability company ( "GP2 "), and LYON INTEGRAL MACARTHUR PLACE, LLC, a Delaware limited liability company ( "Lyon /Integral "). 1. Reference to Facts. This Fourth Amendment is entered into with reference to the following facts: 1.1 Capitalized terms not defined herein shall have the meaning set forth in the Development Agreement. 1.2 The Grand Plan 1, LLC, a California limited liability company ("GP I") and The Grand Plan 2, LLC, a California limited liability company ( "GP2 "), on the one hand, and City, on the other hand, entered into that certain Development Agreement dated August 4, 2005 and recorded in the Orange County Official Records on July 21, 2005 as Instrument No. 2005000565108 (as amended, the "Development Agreement ") pursuant to which, among other things, Owner (as defined in the Development Agreement) was granted the vested right to develop a mixed use Project with residential condominiums and office /commercial /retail uses, as more particularly described therein. GP2's current rights and obligations under the Development Agreement include the Residential Condominium Units Element of the Project, which is the subject of this Fourth Amendment. The Residential Condominium Units Element of the Project was initially referenced as the "Integral Project" in the original Development Agreement, but shall be amended by this agreement to be referenced as the "Lyon /Integral Project." 1.3 A First Amendment to the Development Agreement by and between the City, GP2, NDC Skyline Associates, LLC and Integral Communities 1, Inc. (the latter two being assignees of GP and GP2 as applicable) was executed on or about July 7, 2008 and recorded in the Orange County Official Records on July 22, 2008 as Instrument No. 2008000349227. A Second Amendment to the Development Agreement by and between the City, NDC Skyline Associates, LLC, and Integral Communities 1, Inc. was adopted by Ordinance Nos. NS -2782 and NS -2783 on or about May 18, 2009, and recorded in the Orange County Official Records as Instrument No. 2009000447820. A Third Amendment to the Development Agreement by and between the City and The Grand Plan 2, LLC was adopted by Ordinance No. NS -2786 on or about June 1, 2009, and recorded in the Orange County Official Records as Instrument No. 2009000447821. 1.4 Lyon /Integral is an assignee of Integral Communities I, Inc. under the Development Agreement. 1.5 The original Development Agreement and Entitlements (i) described the Residential Condominium Units ( "Lyon /Integral Project ") Element of the Project as consisting of a 4th amendment to development agreement 002 (2)2 11 A -6 3/10/2011 3:35 PM five (5) or six (6) story building containing two- hundred seventy-six (276) for -sale residential condominium units. 1.6 GP2 seeks approval of an amendment to the Residential Condominium Units ( "Lyon /Integral Project ") Element of the Project. For purposes of this Fourth Amendment, the "Lyon /Integral Project" shall be amended to consist of three - hundred (300) for -sale residential condominium units. 1.7 In connection with the foregoing, GP2, Lyon/Integral and the City now desire to amend the Development Agreement to provide GP2 with approval of the "Lyon /Integral Project" subject to the terms and conditions of the Development Agreement, as amended. 2. Lyon /Integral Project. GP2 and the City hereby acknowledge and agree that GP2 has the right under this Fourth Amendment to construct and operate the "Lyon/Integral Project ", as hereinafter defined. 3. Modification of Certain Provisions, The Development Agreement is hereby amended and supplemented in the following particulars: 3.1 Section 2.21. This section is hereby supplemented by adding the following after the third sentence appearing therein, as added by the Third Amendment to Development Agreement: "The new entitlements for the Lyon /Integral Project shall include Conditional Use Permit No. 2011 -05, Variance No. 2011 -04, and Site Plan Review No. 2011 -01, as approved by the City. 3.2 Section 2.24. The term "Integral" shall be replaced with the term "Lyon /Integral." 3.3 Section 2.43(3). The entire section shall be amended to read as follows: "(3) A five (5) or six (6) story building containing three - hundred (300) for - sale residential condominium units or for -rent residential units along with a 2,100 square foot commercial space (the "Lyon /Integral Project "); and" 3.4 Section 2.43. In the final sentence of this section, as added by the Third Amendment to Development Agreement, the term "Integral Project" shall be replaced with the term "Lyon /Integral Project." 3.5 Section 2.50. As added to this section by the Second Amendment to Development Agreement, the term "Integral Project" shall be replaced with the term "Lyon /Integral Project." 3.6 Section 4.1. As added to this section by the Second Amendment to Development Agreement, the term "Integral Project" shall be replaced with the term "Lyon /Integral Project." 4th amendment to development agreement 002 (2)2 3 11 A -7 3/10/2011 3:35 PM 3.7 Section 4.2. The term "Integral Project" shall be replaced with the term "Lyon/Integral Project." In addition, "Lyon" shall also be included in any reference to "Integral." 3.8 Section 4.2.1. As added to this contract by the Second Amendment to Development Agreement, the term "Integral Project" shall be replaced with the term "Lyon /Integral Project." In addition, "Lyon" shall also be included in any reference to "Integral." 3.9 Section 4.3(d). The term "Integral Project" shall be replaced with the term "Lyon /Integral Project." In addition, "Lyon" shall also be included in any reference to "Integral." 3.10 Section 4.3(f). As added to this section by the Second Amendment to Development Agreement, the term "Integral Project" shall be replaced with the term "Lyon /Integral Project." 3.11 Section 5.1.3. The term "Integral Project" shall be replaced with the term "Lyon /Integral Project." 3.12 Exhibit B, Section 2. As added to this section by the First Amendment to Development Agreement, the term "Integral Project" shall be replaced with the term "Lyon /Integral Project." Full Force and Effect; Counterparts. Except as amended herein, the Development Agreement shall remain in full force and effect in accordance with its terms. This Fourth Amendment may be executed in any number of counterparts, all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, this Fourth Amendment has been executed by the City of Santa Ana and The Grand Plan 2, LLC. Dated this day of 4th amendment to development agreement 002 (2)2 2011. "CITY" THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California 4 DAVID N. REAM City Manager 'i 3 /10 12011 3:35 PM ATTEST: MARIA D. HUIZAR Clerk of the Council Approved as to Form: JOSEPH STRAKA Interim City Attorney Ryan O. Hodge Assistant City Attorney 4th amendment to development agreement 002 (2)2 "GP2" THE GRAND PLAN 2, LLC, a California limited liability company By _ Name Its "Lyon /Integral" LYON INTEGRAL MACARTHUR PLACE, LLC, a Delaware limited liability company By _ Name Its 11 A -9 3110/2011 3:35 PM STATE OF CALIFORNIA ) ss. COUNTY OF ) On before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose names(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 STATE OF CALIFORNIA ss. COUNTY OF On before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose names(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 4th amendment to development agreement 002 (2)2 R1 11A -10 3/10/2011 3:35 PM APRIL 18, 2010 TITLE: BOARDS AND COMMISSIONS BIANNUAL ATTENDANCE REPORT OCTOBER THROUGH MARCH 2011 CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 15` Reading ❑ Ordinance on 2 "J Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE v / NUMBER CITY MANAGER RECOMMENDED ACTION Receive and file Boards and Commissions Biannual Attendance Report. DISCUSSION The Boards and Commissions Attendance Report is prepared biannually to inform the Council regarding member attendance at Board or Commission meetings. Pursuant to Council policy, the City Council may remove board or commission members who incur four unexcused absences within the six -month reporting period. Additionally, City Charter Section 901 provides that three consecutive unexcused absences would result in the vacation of a board or commission position. Examination of the attendance reports revealed that no current members have exceeded the limits for permitted absences. Therefore, the only action required is to receive and file the report. FISCAL IMPACT There is no fiscal impact associated with this action. Maria D. 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ATTENDANCE Council members Present Michele Martinez (Chair); Vincent Sarmiento, Councilmember(s) Sal Tinajero Absent: Staff Present: Gerardo Mouet, Executive Director; Joe Straka, Interim City Attorney; Ron Ono, Administrative Services Manager; Jenny Rios, Community Services Manager; Jeannie Jurado, Community Services Supervisor; Jose Perez, Community Services Supervisor. Public Present Mayra Mejia, Latino Health Access Ana Carricchi, Latino Health Access Leonel Perez, United Latin Adult Soccer Pedro Magallon, Clubes Unidos Adult Soccer League Hugo Hernandez, Clubes Unidos Adult Soccer League Alfredo Gomez, Azteca Adult Soccer League Angel Orea, Hispanoamerica Adult Soccer League Rick Neidermayer, American Youth Soccer Organization Israel Salazar, Continental Adult Soccer League Alex Vega, El Tri Futbol Club Mauricio Cardenas, El Tri Futbol Club Ricardo Sandoval, Santa Ana Adult Soccer League Carlos Benitez, Deportivo Guererrenses Jose Meza, Veteranos Adult Soccer League Jesus Rodriguez, Boy Scouts Youth Soccer League Jorge Rodriguez, Santa Ana Development Program • APPROVAL OF MINUTES • Minutes of February 25, 2010 accepted as presented. PREY Special Meeting — MINUTES 1 January 12, 2011 13C -1 • HEALTHY CITY PRIORITIES • Councilmember Martinez acknowledged and recognized Leonel Perez and Edgar Vasquez for their soccer event emphasizing healthy living. • Councilmember Martinez presented draft of the City of Santa Ana, Healthy Eating Active Living Resolution. • Pedro Magallon commented healthy food and drinks be sold by leagues in snack bars on parks. • Rick Neidermayer commented the Santa Ana Unified School District is also supporting and encouraging healthy snacks be sold in concessions. • EL TRI FUTBOL CLUB • Councilmember Sarmiento commented El Tri Futbol is also aligned with the City's healthy living philosophy. • Mauricio Cardenas presented the overview and philosophy of El Tri Futbol Club. He indicated the kids should understand the importance of healthy eating and exercise through sports. He is proposing to promote the Santa Ana Program through a 30 minute weekly Spanish television program on Channel 52. • Councilmember Sarmiento requested the Parks, Recreation and Community Services Agency promote and support the El Tri Futbol Club. Gerardo Mouet indicated he will work with Mauricio and the City Manager on the next step to implement the program. • Pedro Magallon and Rick Neidermayer requested more information on the program and requested El Tri Futbol to present the program to other leagues for input. Councilmember Sarmiento indicated introduction of the program is conceptual and comments provided by the leagues will be considered and should be used as a model for all leagues. • RECOMMENDATION: El Tri Futbol and leagues to continue working with Parks, Recreation and Community Services Agency to promote healthy living. • LATINO HEALTH ACCESS (HEAC) • Mayra Mejia indicated all leagues should collaborate and work together to promote healthy living. Poor eating habits lead to poor health and financial responsibilities of increase medical bills. Mayra Mejia indicated there are not enough fields and school fields should be accessible to the community. Only a few fields are accessible. Councilmember Sarmiento indicated the need for open space will be a challenge for the next few years. The City will continue to seek open space through joint use agreements and is open to continue the discussion on how to resolve this problem PREY Special Meeting — MINUTES 2 January 12, 2011 13C -2 • NEW ADULT SOCCER ORGANIZATIONS REQUESTING TO ENTER CITY PERMIT SCHEDULE Jenny Rios provided a summary from the last PREY meeting concerning the request from new soccer organizations to enter the city permit schedule to utilize fields. Four new leagues are requesting to enter the time block for fields. The new leagues are able to utilize the Special Event Request process to play league finals at the SA Stadium and DYSC when the need arises as long as the league being displaced in not on a regular basis. Councilmember Sarmiento indicated this is a difficult challenge to accommodate the new leagues since there are no new fields being added in the city. The four new leagues have a viable reason for fields, but unless we take away from the existing leagues, we have no field to offer. o Need to look at extending hours on existing fields by adding permanent or portable lighting on non -lit fields and possibly using the Surcharge Fund to do this. o Requested information on the surcharge fund and the cost to install portable lighting on DYSC field #1 or Centennial Field #5 and #6. Ricardo Sandoval indicated if the surcharge funds are used it should be replaced by the new leagues. Councilmember Sarmiento requested staff conduct a cost benefit of different options: o Installation of permanent lighting o City or Leagues to provide portable lighting o Installation of synthetic turf o Addition of another field on Centennial fields #5 & #6. Edger Vasquez acknowledged the city for allowing leagues to use fields on holidays and indicated he will provide information on a new type of synthetic turf that is available. Councilmember Sarmiento also invited the new leagues to provide solutions to this problem and indicated there is no new information on the status of the SA Winds. • STREET SOCCER EVENTS • Alex Vega indicated Street Soccer is a non - traditional soccer sport conducted on pavement. This sport is supported by the Santa Ana Soccer and Business Association and Chivas USA B Team. • Edger Vasquez indicated this use is an alternative due to the lack of fields and is economically accessible to the community. • Councilmember Sarmiento indicated street soccer is very successful in New York and other cities with limited park space where street soccer tournaments are held on downtown street pavement. We are talking with Chivas USA and PREY Special Meeting — MINUTES 3 January 12, 2011 13C -3 if they come to the city we could have them play an exhibition game on the street. Councilmember Martinez commended Councilmember Sarmiento and Edgar Vasquez for thinking outside of the box to provide soccer programs where there is a lack of open space. Alex Vega supports the program and Mauricio Cardenas has approached Downtown Inc, on the use of Shopping Centers. Pedro Magallon indicated Los Angeles has a similar Street Soccer Program and staff should look into it. • COMMENTS PUBLIC COMMENTS: o Rick Neidermayer indicated: • The 8,000 youth soccer players are playing on other leagues and the rosters submitted to PRCSA reflects duplicate numbers. • New leagues requesting fields should merge into existing leagues and not create new leagues. • Programs cannot grow without more fields. • The problem with the new cancellation and restroom fees that city council approved, does not give leagues enough time to cancel their reservations before getting hit with a penalty. • PREY Council Committee should meet more often than one time per year. ■ A park ranger that was recently let go by the city, played Santa Claus for an AYSO family and gave the family $300. o Alex Vega indicated the Santa Ana Business Association is asking the leagues to be part of the association. o Edger Vasquez indicated everyone has to work together, change will not happen overnight. • STAFF COMMENTS: • Gerardo Mouet indicated: • The Earth and Health Fest will be held on April 16th at Centennial Park and distributed flyers to everyone. • The City was awarded a $4.4 million the Prop 84 grant for Willard Intermediate School Joint -Use Project. Improvements will include synthetic turf, all weather track, sports lighting, tot lot and restrooms. • The Santiago Park mural project event will be held on January 15, 2011. • The Parks, Recreation and Community Services Agency will be will be involved in managing the Fiestas Patrias Event. • Joe Straka indicated Healthy Living begins at home. PREY Special Meeting — MINUTES 4 January 12, 2011 13C -4 COMMITTEE MEMBER COMMENTS: o Councilmember Sarmiento thanked everyone for attending the meeting and for sharing ideas to help resolve an issue of common interest. o Councilmember Martinez thanked staff for the great job they do under the current situation. She also indicated she would like PREY to meet more often on at least a quarterly basis. ADJOURNED: 6:15 p.m. Gerardo Mouet Executive Director, PRCSA PREY Special Meeting — MINUTES 5 January 12, 2011 13C -5 13C -6 MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL COMMITTEE ON PARKS, RECREATION, EDUCATION AND YOUTH February 25, 2010 CALL TO ORDER The meeting convened at 5:40 p.m. in the City Hall, Room 831, 20 Civic Center Plaza, Santa Ana, California. ATTENDANCE Council members Present Michele Martinez (Chair); Vincent Sarmiento, Sal Tinajero Councilmember(s) Absent: None Staff Present: Gerardo Mouet, Executive Director; Ron Ono, Administrative Services Manager; Jenny Rios, Recreation Superintendent; Jose Perez, Recreation Program Coordinator. Public Present Julie Stroud, Tish Leon, Al Amezcua, Jessica Gutierrez, Edgar Vasquez, Jose Meza, Jesus Rodriguez, Pedro Magallon, Richard Sandoval, Alfredo Gomez, Leonel Perez, Jorge Rodriguez. 1. APPROVAL OF MINUTES • Minutes of November 10, 2009 accepted as presented 2. FEBRUARY SOCCER ISSUE REPORT Recreation Superintendent Jenny Rios presented a report addressing the various issues requested by city council. One of the issues relates to new leagues wanting a permit to use city soccer fields. The recommendation would be to allow the leagues to have a permit on the 3 available time blocks. Councilmember Martinez indicated to the audience that City Council is here to listen to the staff report and may not necessarily to make decisions tonight. Councilmember Tinajero asked for the hours in which other leagues are using the field? Staff referred him to page 27 of the report and indicated the three new leagues are: Continental, Hispano America, and Orange County. Councilmember Sarmiento' asked what fields do not have sports lighting. Staff responded Centennial field #5 & #6 and DYSC #1. Councilmember Sarmiento' requested information on the amount of hours that would be added if fields #1, #5 and #6 were lighted? Also are park rangers targeting adult leagues for violations? Staff responded to the additional hours if the fields were lit and that rangers are nor targeting adult leagues. Councilmember Tinajero indicated Park Rangers need to be respectful to our park users. PREY Regular Meeting — MINUTES 1 February 25, 2010 13C -7 Councilmember Martinez asked: What is the impact to the agency based on the current budget issue? Staff responded that the adult and youth soccer organizations as well as other sports organization provide a good service to the community that helps the agency and budget for not providing this program. Staff reported that the soccer surcharge was established to fund the installation for a new synthetic turf field and the fee is collected during the time of the field reservation. • Councilmember Martinez indicated the surcharge should not be touched and should be protected for the next synthetic turf field. • Councilmember Tinajero indicated in light of the budget constraints it would be difficult to lower this fee. • Councilmember Sarmiento' also indicated this fee should not be touched due to the budget constraints and the surcharge should also be used to make minor improvements, such as temporary lighting to increase field usage for adult soccer. Staff reported there was a concern by the leagues of too many fees or the fees are too high? Staff's recommendation is for a fee increase to cover field attendants, late cancellations and transfers for all synthetic turf fields. Santa Ana fees are low compared to five Orange County cities as indicated on page 35 of the report. Councilmember Sarmiento' indicated we service a different public than Newport Beach. We should be respectful to the income level of the community. Staff indicated the composition or role of the Committee of Field Usage (CoFU) is being reviewed since only a few violations are going to CoFU and most of the violations are being handled by staff. The recommendation would be for CoFU to meet one time per year and to review the membership. • Councilmember Tinajero asked how long has CoFU been in existence? Staff reported CoFU was established on June 26, 2002 and was originally composed of 22 members and is now reduced to 8 members. • Councilmember Tinajero indicated city council has changed since then and indicated the possibility that CoFU be eliminated and the soccer issues be addressed by staff or the Board of Recreation and Parks for decision. • Councilmember Martinez requested a handout on the staffing of CoFU. Staff reported the need to prohibit leagues from providing vending due to the many illegal vending and health issues. If vending is provided it should be controlled under a permit with regulations to provide health food. • Councilmember Martinez indicated the city requires 50% of the food/beverage in city approved vending machines to serve healthy food/beverages. PREY Regular Meeting — MINUTES 2 February 25, 2010 13C -8 PUBLIC COMMENTS: • Tish Leon asked about a question on the vending at DYSC? Staff indicated an RFP was released. • Pedro Magallon asked if the vending concessionaire will be providing healthy food. • Al Amezcua reported on the evolution of CoFU and concurred that the Board of Recreation and Parks can fit this role. He also indicated the city needs to maximize the joint use of school sites to provide recreational facilities to the community. • Edgar Vasquez asked about the synthetic field warranty and indicated the DYSC youth field is the oldest field and needs repair. • Jorge Rodriguez indicated the sprinkler system is creating mud on the youth field and needs to be reviewed. • Councilmember Sarmiento' indicated the leagues do provide service to the community. Staff appreciates this service and the report is not meant to criticize the operation. 3. COMPARISION OF SANTA ANA PARKS AND RECREATION WITH COMPARABLE CITIES • The Parks, Recreation and Community Services Executive Director indicated the agency is now restructured to four divisions: Administration, Recreation, Library and Zoo. The Executive Director explained our staff reduction journey and the per capita comparison with other cities. Santa Ana is the lowest. PUBLIC COMMENTS: Tish Leon expressed concern over the reduction of full time zoo staff. Indicated the animals needed to be properly maintained and feed. Peter Magallon indicated fees imposed on soccer are passed on to the players. Players are leaving and without proper activity for youth they will get into gangs. 4. UPDATE ON LACY PARK • The Executive Director indicated we are working with the Community Development Agency on the possibility of a new park at Garfield School. A site plan and concept was shared with the committee. Staff explained as part of Santa Ana Unified School District modernization program the district will be constructing a 2 story classroom building on Garfield School. The city will also be partnering with the district to construct a community center on Garfield School. PUBLIC COMMENTS: Al Amezcua indicated this was not the best location for a park and the community is working on identifying another location. PREY Regular Meeting — MINUTES 3 February 25, 2010 13C -9 Tish Leon indicated she appreciates the city listening to the community. Use of the community center should be available to the public at all times, not only when school is not in cession. 5. UPDATE ON GODINEZ HOMERUN FENCE The Executive Director provided a status on the Districts request for a homerun fence at Godinez High School. After various meetings with the district, neighborhood associations, and the Joint District/City Policy meeting the city and district staff will be proposing: o No more Centennial carnivals on the northeast corner of the park o SAUSD to install parking structure directional signs in Centennial Park. o City will no longer pay to the District reservation fees and light fees for use of Godinez Joint Use recreational facilities. o District will no longer pay to the City reservation fees when using Godinez Joint Use recreational facilities. PUBLIC COMMENTS: • Peter Magallon indicated the Godinez ball fields also include (3) soccer fields and expressed concern that the soccer fields are not impacted by the fence. • The Executive Director explained the ball fields are not programmed for soccer and fields #5 & #6 were available for soccer. Sal Tinajero excused himself and needed to leave at 7:20pm. 6. UPDATE ON SANTA ANA BUILDING A HEALTHY COMMUNITY INITIATIVE • Staff provided a timeline of committee schedules and objectives. The schedule indicated the Final Report will be submitted to the California Endowment on May 15th. A recommended draft of the report will be shared with City Council. 7. CITY OF BELL EXERCISE PARK A news article on the City of Bell Exercise Park was shared with the committee and discussed as a possible element in the McFadden /Orange site. • Councilmember Martinez requested an update on the McFadden /Orange site. PREY Regular Meeting — MINUTES 4 February 25, 2010 13C -10 8. UPDATE ON YMCA AQUATICS CENTER Councilmember Sarmiento' reported that the YMCA will be breaking ground on March 16th. Improvements will include a swimming pool, indoor soccer field and classrooms. To date the YMCA raised $18 million and needs a $22 million budget for this program. 9. COMMENTS • PUBLIC COMMENTS: o Tish Leon indicated Latino Health Access has a free Diabetes & Obesity Program that is available to the public. • STAFF COMMENTS: o None at this time. • COMMITTEE MEMBER COMMENTS: o Councilmember Martinez indicated the Mayor appointed her to the Health & Wellness Program and a tour was provided in which she was not made aware. The Executive Director indicated he will send her a link to the Healthy Communities calendar. ADJOURNED: 7:29 p.m. Gerardo Mouet Executive Director, PRCSA PREY Regular Meeting — MINUTES 5 February 25, 2010 13C -11 13C -12 SANTA ANA CITY COUNCIL COMMITTEE PUBLIC SAFETY Minutes of Meeting November 30, 2010 CALL TO ORDER The meeting was convened at 5:45 P.M. at Santa Ana Police Department, 60 Civic Center Plaza, 4m Floor, Santa Ana, California. ATTENDANCE Council members present: Claudia Alvarez, David Benavides, and Sal Tinajero. Staff present: Police Chief Paul Walters, Fire Chief Dave Thomas, Assistant City Attorney Teresa Judd, Commander Ruben Ibarra, and Loretta Tafoya, Recording Secretary. Public sign -ins: Rene D. Guzman, Carl Benniger, Helen Martinez, Evangeline Gawronski, Cesar Galarza, Rosa Ramirez. SUMMARY OF DISCUSSIONS APPROVAL OF MINUTES Approved Minutes of the September 28, 2010 meeting. UPDATE ON FIRE STATION Fire Chief Dave Thomas provided background for Fire Station No. 3, which was built in 1962. In 2007, the Fire Department conducted a study, and it was determined Station No. 3 was most in need of an update. They also found it would actually cost more to remodel the Station than to relocate it. The Fire Department submitted a Homeland Security Grant but was turned down. The Fire Department is interested in acquiring the Rescue Mission, 1901 W. Walnut Street. Councilmember Claudia Alvarez asked Police Chief Paul Walters to explain the problems the City has with the Mission. Chief Walters said there is a criminal element surrounding the immediate area of the Mission who engage in drug sales and usage, robberies, assaults, and vandalism. These problems would be removed if the Fire Department took over this location. Councilmember David Benavides would like the Fire Department to keep the Committee posted of the re- submission of the Grant. 3. GRAFFITI ENFORCEMENT Sgt. Lorenzo Carrillo, Graffiti Task Force Supervisor, reviewed the stats. There have been 273 vandalism - related arrests; 3,998,076 square feet of graffiti removed; $31,500 awarded in restitution; $26,676 restitution received; and 14 graffiti rewards processed. A new SAMC ordinance has been implemented prohibiting possession of graffiti /vandalism tools on school campus. Presently, there are two large scale cases at the DA's Office; one pending and one filed, involving $30,000 and $25,400 in restitution respectively. Sgt. Carrillo stated that glass etching is making a comeback in the downtown area. Councilmember Tinajero complimented Sgt. Carrillo on his success. Councilmember Benavides asked about the relationship between the police department and school police. Sgt. Carrillo stated that both agencies share intelligence and manpower as part of the task force against graffiti. 4. JESSICA'S LAW STATUS Assistant City Attorney Teresa Judd stated there has been litigation in LA challenging Jessica's Laws residency restrictions; however, this has not been an issue with the City. Committee member Alvarez wanted to know what the City could have in place to avoid problems when convicted sex offender Brown gets released. 13C -13 Committee member Benavides asked if the PD lets the community know when a high -risk sex offender gets released. Chief Walters stated that the schools and the Police Department hand out flyers and canvass the neighborhood. Committee member Alvarez stated that the Orange Police Department has an ordinance that prevents sex offenders from passing out candy and decorating their residence on Halloween. Committee member Alvarez would like to adopt the same ordinance. Assistant City Attorney Teresa Judd is going to look into it. 5. PRIVATE PROPERTY IMPOUNDS Chief Walters stated the Santa Ana Police Department has received complaints related to vehicles impounded by tow companies on private property. In a few of these cases, the complaint involved companies that are active members of the department's rotational tow list. In years past, predatory towing was a severe problem in the City of Santa Ana but amendments to CVC 22658 have effectively addressed a number of these concerns and significantly reduced the number of complaints from the community. Committee member Alvarez asked about the rotation. An email was sent to all rotational tow companies reminding them that the Santa Ana Police Department discourages PPI's and punitive action may be taken if they are found to violate CVC 22658, up to and including suspension or removal from the rotational tow list The police department will inspect rate sheets and PPI authorizations. Chief Walters stated the tow companies must keep impeccable records because they represent the police department. 6. PUBLIC COMMENTS The citizen's present spoke regarding the traffic at schools and the need for crossing guards and more patrols. They also wanted to make sure cars cannot be towed without a complaint. A citizen wanted to promote the new Fire Station. COMMITTEE MEMBER COMMENTS Committee Sal Tinajero asked Chief Walters to have more patrol on Bear and Segerstrom. ITEMS FOR NEXT MEETING A. Building Healthy Communities B. Jessica's Law C. Release of Prisoners 9. NEXT MEETING DATE - Tuesday, January 25, 2011, 5:30 pm, Santa Ana Police Facility, 60 Civic Center Plaza, 4th Floor conference room, Santa Ana, California. A URNME T — 7:25 P.M. PAUL M. WAL ERS Chief of Police 13C -14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE REQUEST FOR PROPOSALS TO PROVIDE AND INSTALL LED STREET LIGHTS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the Public Works Agency to send a Request for Proposals to qualified firms to provide and install energy- efficient LED street lights. DISCUSSION The City owns 2,714 lights which are operated and maintained by the Public Works Agency. Of these, 1,777 are street lights and the remaining 937 are safety lights mounted above traffic signals. The City uses conventional high - pressure sodium lamps in a majority of the street lights. In an effort to reduce energy costs, staff has installed 25 energy- efficient LED street lights in two pilot programs on arterial streets in the city. The pilots have been successful producing an average energy savings of 66 percent. They also provide more visible light than conventional street lights. These lights are expected to have a life of over 15 years. Due to the findings identified in the pilot projects, staff developed a project to replace 253 City - owned street lights on Main Street and Edinger Avenue with energy- efficient LED street lights. Staff investigated funding sources and submitted an application to have this project funded through Southern California Edison's (SCE) new On -Bill Financing program. The On -Bill Financing program issues zero percent financing for approved energy reduction projects. The costs are repaid from energy savings over a period of ten years. Based on SCE's and staff's cost estimates, no City funds will be needed to complete the project. Staff is requesting approval to issue an RFP to solicit proposals from qualified firms to remove and dispose of the existing fixtures, provide, install, and test 253 LED streetlight fixtures (Exhibit 1). Once the costs of the project are determined through the RFP process, a final recommendation on the project and funding will be brought to the City Council. 19C -1 Request for Proposals to Provide and Install LED Street Lights April 18, 2011 Page 2 The installation of these energy- efficient LED street lights will reduce the City's estimated annual energy consumption by 203,900 kWh and energy costs by approximately $15,650 at the current energy rate. ENVIRONMENTAL IMPACT Installation of the LED street lights will reduce the City's carbon footprint by 141 metric tons of CO2, which is the equivalent of removing 27.6 passenger vehicles from the road. FISCAL IMPACT There is no fiscal impact associated with the release of a Request for Proposals. G G� Raul Godinez II Executive Directo� Public Works Agency RG /KW Exhibit 1: RFP Scope of Service 19C -2 EXHIBIT 1 RFP Scope of Service 19C -3 PURPOSE The purpose of this Request for Proposals (RFP) is to obtain a Proposer to enter an agreement with the City to remove existing street light luminaires, furnish and install energy efficient LED streetlight luminaires on two (2) arterial streets; Main Street and Edinger Avenue. The Proposer will be required to provide two - hundred fifty -three (253) LED street light luminaires. The City reserves the right to increase or decrease the quantity of lights. I. SCOPE OF WORK The Request for Proposals calls for the removal and disposal of existing luminaires; the furnishing and installing of new LED street lights and all testing, including photometric, to prove that furnished luminaires perform as specified. The Contractor shall provide at his own risk and cost all labor, materials, tools, equipment, and traffic control per the Work Area Traffic Control Handbook ( "WATCH "), transportation, hauling, dumping, and recycling of removed material as part of this project. The City reserves the right to salvage existing luminaires. All salvaged luminaires shall be delivered to the City Corporate Yard at no cost to the City. II. FUNCTIONS AND RESPONSIBILITIES A. DIRECTOR The Director shall have the authority to accept/reject materials, workmanship and to make minor changes in work or schedule. When the performance of the work or completion per schedule is determined to be substandard, he may 1) recommend that all or a portion of payment be withheld, and /or forfeiture for delay be assessed; 2) direct the work be accomplished by a separate contractor, in order to complete the necessary work as close to schedule as possible and withhold the resulting costs. Payment to be withheld shall be deducted from the next monthly payment due to the Proposer, or if the amount is insufficient to cover payment, the Proposer shall be liable and will be billed accordingly. The Director or his authorized representative shall decide all questions, which may arise as to the manner of performance and completion per schedule, acceptable fulfillment of the contract by the Proposer, interpretation of the specifications, and compensation to include completion of work by alternate sources. B. PROPOSER 1. Local Office The Proposer shall maintain a local office with a competent representative who can be reached during normal working hours and authorized to discuss matters pertaining to this 2 19C -5 contract with the Director. Proposer will not be allowed to store equipment or materials at any contracted area. 2. Submittals The Proposer shall submit to the Director at the beginning of work, 1) a detailed job schedule, 2) names and titles of all persons working on the project, and 3) materials to be used on the project for approval. All submittals shall be periodically updated as necessary. The Director shall be immediately notified of any deviation from schedule or material usage. 3. Identification All vehicles and equipment on the project site shall be properly marked with company identification. 4. Licenses and Permits The Proposer shall, prior to award of contract and without additional expense to the City, possess all licenses and permits required for the performance of the work required by this contract, including but not limited to State License C -27, a City of Santa Ana Business License, and a C -10 Electrical License. 5. Work Force a. The Proposer shall insure that all work under this agreement is supervised by personnel who are technically qualified and possess management skills required to implement modern methods and newly developed procedures. b. The Proposer shall insure that all work under this agreement is performed by fully qualified, experienced personnel, directly employed by the Proposer or its listed subcontractors. All subcontractors that will perform work under this agreement shall be listed on this proposal. No other subcontractors shall be permitted without prior written consent by the Director. c. The Proposer shall be responsible for skills, methods, appearance and action of Proposer's employees and its subcontractors and for all work done. The Contractor's employees shall be U.S. Citizens and /or legal residents. d. The Proposer shall perform the work provided for in this proposal under the direction of the Director. The Director may make inspections at any time and may request that the Contractor perform additional work or services to bring Contractor's performance to the level required by this agreement. 6. Material The Proposer shall submit a list to the Director all materials that the Proposer proposes to the use in the execution of this work. Said list shall be submitted before use of any 19C -6 product, pursuant to the provisions of this agreement. All materials used or submitted shall be in full compliance with all federal, State, County and local agency laws, guidelines and requirements. 7. Recycling All waste (including construction and demolition materials) resulting from work performed under this contract shall be recycled. The Contractor will be responsible for the disposal of all non - recyclable waste in accordance with all applicable local, state and federal laws and regulations. 8. General Maintenance and Clean-Up All trash and debris shall be removed from all worksites at the end of each day. The Contractor shall keep sidewalks and all paved areas in parkway swept and cleaned of any debris, dirt or soil. 9. Emergency Service The Proposer shall be able to receive and respond to the City's call for emergency service twenty -four (24) hours per day, seven (7) days per week. Response time shall be immediate but not more than two hours to remove or eliminate a public safety hazard. Contractor shall provide the City with a local telephone number where contractor can be contacted twenty -four (24) hours per day, seven (7) days per week. 10. Penalties and Fines Failure to comply with time limits set forth in the specifications and /or creating unnecessary delays, as determined by the Director, may be cause for fines and penalties in the amount of two hundred dollars ($200.00) per occurrence per day until said request is completed. This shall be deducted from payments due Proposer. 4 19C -7 19C -8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AP RI L 18, 2011 TITLE: AUTHORIZATION TO REQUEST PROPOSALS FOR PRE - PRELIMINARY ENGINEERING ANALYSIS FOR THE SANTA ANA GARDEN GROVE FIXED GUIDEWAY (PROJECT 092505) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2°" Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the Public Works Agency to issue a Request for Proposals (RFP) to qualified consulting firms to prepare Pre - Preliminary Engineering project deliverables required by the Federal Transit Administration. DISCUSSION On March 7, 2011, Council authorized staff to execute a cooperative agreement with the Orange County Transportation Authority (OCTA), in an amount not to exceed $5,541,700 for Pre - Preliminary Engineering (Pre -PE) and Preliminary Engineering (PE) activities for the Santa Ana - Garden Grove Fixed Guideway Project. The cooperative agreement with OCTA defined the roles and responsibilities related to funding and project delivery between OCTA and Santa Ana for Pre - PE and PE activities consistent with Measure M2 as well as federal guidelines and requirements. Prior to entry into the PE phase, there are certain project development activities that need to be completed to satisfy Federal Transit Administration (FTA) requirements. Such activities include items such as project and fleet management plans and a detailed FTA ridership analysis for the purpose of ridership modeling. Such tasks were not included as part of the Go Local Step Two grant awards and scope of work. Therefore, in order to complete these necessary tasks, staff is requesting authorization to solicit proposals from qualified consulting firms to prepare Pre -PE project deliverables in an amount not to exceed $529,360. For your information, key RFP dates are shown below: RFP Issued: April 22, 2011 Pre - Proposal Meeting: Week of May 2, 2011 Proposal Due Date: May 20, 2011 Interview Date: Week of June 6, 2011 Contract Award: July 5, 2011 19D -1 Pre - Preliminary Engineering RFP April 18, 2011 Page 2 It should be noted that unless extended by contract amendment, the Pre -PE contract will terminate on February 1, 2012. Further, all FTA funding is passed through OCTA since they are the grant recipient. OCTA will provide oversight for the project to ensure that the federal procurement process is followed and that all documents prepared by the consultant(s) are in compliance with FTA New Starts and Small Starts funding criteria. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT On November 22, 2010, the OCTA Board allocated funding in the amount of $661,700 for the Pre -PE analysis with a required 10% local match of $66,170. Funds for the local match are available in Measure M Street Construction (accounting unit 03217660- 66220, project 092505). APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG:RB Exhibit 1: RFP Scope of Work W01 MA REQUEST FOR PROPOSAL SANTA ANA - GARDEN GROVE FIXED GUIDEWAY PROJECT PRE - PRELIMINARY ENGINEERING ANALYSIS Key RFP Dates RFP Issued: Pre - Proposal Meeting Proposal Due Date: Interview Date: Contract Award: April 22, 2011 Week of May 2, 2011 May 20, 2011 Week of June 6, 2011 July 5, 2011 CITY OF SANTA ANA PUBLIC WORKS AGENCY 20 CIVIC CENTER PLAZA SANTA ANA, CALIFORNIA 92702 Issued by: Dave Biondolillo City of Santa Ana Exhibit 1 1r6b_ pe of Work IV. SCOPE OF WORK Task 1 - New Starts Templates and Application A significant amount of work in support of the project has recently been prepared through the Conceptual Engineering /Alternatives Analysis /Draft Environmental Analysis effort. At project kick -off, City of Santa Ana staff will provide Consultant with copies of the documents that provide information relevant to the Pre -PE scope of work. For efficiency and consistency, Consultant shall draw from those materials to the maximum extent feasible to prepare and assemble all documents and data needed for an FTA Section 5309 (New Starts /Small Starts /Urban Circulator) application, including: A. Project Description B. Standard Cost Categories (SCC) Annualized Cost Worksheets C. Land Use Supporting Information D. Project Financial Plan & Supporting Information E. "Making the Case" Document Task 1 Deliverables: 1. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the draft Project Description, SCC Annualized Cost Worksheets, Land Use Supporting Information, Project Financial Plan & Supporting Information, and "Making the Case" Document 2. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the final Project Description, SCC Annualized Cost Worksheets, Land Use Supporting Information, Project Financial Plan & Supporting Information, and "Making the Case" Document Task 2 - Project Management Plan (PMP) As a condition of Federal assistance, a grant applicant for a major capital investment project must prepare a Project Management Plan (PMP) consistent with 49 USC 5327 (Project Management Oversight) and 49 CFR 633 (Project Management Oversight Rule). The grant applicant must submit the PMP in time for FTA to review the applicant's plan in conjunction with its New Starts /Small Starts grant application. The 196-4 PMP is a dynamic document for managing engineering, design, construction and start- up of a project. The PMP must provide sufficient detail to demonstrate the grant applicant's technical capability to carry out the project. Consultant shall develop a draft PMP that addresses the following items: A. Adequate recipient staff organization with well- defined reporting relationships, statements of functional responsibilities, job descriptions, and job qualifications; B. Budget that covers the project management organization, appropriate consultants, property acquisition, utility relocation, systems demonstrations staff, audits, and miscellaneous payments the recipient may be prepared to justify; C. Construction schedule for the project: D. Document control procedure and recordkeeping system E. Change order procedure that includes a documented, systematic approach to handling of construction change orders; F. Organizations structures, management skills, and staffing levels required throughout the construction phase, G. Quality control and quality assurance functions, procedures, and responsibilities for construction, system installation, and integration of system components; H. Material testing policies and procedures; I. Internal plan implementation and reporting requirements; J. Criteria and procedures for testing the operational system or its major components; K. Periodic updates of the plan, especially related to project budget and project schedule, financing, ridership estimates, and the status of local efforts to enhance ridership where ridership estimates partly depend on the success of those efforts; L. The recipient's commitment to submit a project budget and project schedule to the Secretary of Transportation each month; and For purposes of this task, Consultant shall assume that items b and c, Budget and Construction Schedule, would be the same regardless of which agency chooses to implement the project. 10 1901-5 It is assumed that a final decision regarding project ownership and management may be reached before completion of Pre -PE. If that is the case, Consultant shall prepare a final PMP focused on the single, approved scenario. The final PMP shall include a plan for managing later stages of the project. Consistent with FTA guidance, such plan shall be laid out in general terms with a description of how and when the details will be developed. Nonetheless, the grant application prepared by Consultant shall demonstrate that the plan will be developed and implemented as necessary to stay ahead of the implementation of the project. Task 2 Deliverables: 1. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the draft PMP 2. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the final PMP Task 3 - Safety & Security Management Plan (SSMP) Consultant shall prepare a SSMP which fully complies with 49 CFR 633 and is prepared in accordance with FTA's Circular C 5800.1. Sections of the SSMP shall include: A. Management Commitment and Philosophy B. Integration of Safety and Security into Project Development Process C. Assignment of Safety and Security Responsibilities D. Safety and Security Analysis E. Development of Safety and Security Design Criteria F. Process for Ensuring Qualified Operations and Maintenance Personnel G. Safety and Security Verification Process H. Construction Safety and Security I. Requirements for 49 CFR Part 659, Fixed Guideway Systems; State Safety Oversight J. Federal Railroad Administration (FRA) Coordination Plan (if necessary) K. Department of Homeland Security (DHS) Coordination Plan Task 3 Deliverables: 196-6 1. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the draft SSMP 2. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the final SSMP Task 4 - Fleet Management Plan, Draft (FMP) Consistent with the requirements set forth in FTA's Circular 9030.1D, Consultant shall develop a draft FMP that proposes how the Santa Ana - Garden Grove fixed guideway system will be properly planned for and managed. The FMP shall be substantially consistent with the adopted Record of Decision (if applicable) and sufficiently complete in detail and analysis to readily demonstrate the project's ability to maintain and /or improve service levels, operating costs, and the reliability and quality of service for a minimum of 10 years following project construction. A. The FMP shall plan for and discuss the overall management of the entire fleet of vehicles and related support functions and equipment, addressing all the reasonably foreseeable factors that are relevant to the determination of equipment needs in light of demand for service. It should address in detail the composition of the fleet, operating conditions, maintenance, facilities, peak vehicle demand, and spare ratio; B. The FMP shall discuss in detail: a. Requirements for peak and spare vehicles including schedule spares, maintenance spares, parts spares, b. Requirements for support functions such as heavy maintenance, capital and operating parts inventory and information technology, c. Strategies for acquiring new vehicles or overhauling existing equipment and the tradeoffs between them, d. Strategies for maintenance and operations including reducing spare vehicles, and e. Strategies for reducing operating costs and increasing service reliability. 12 19D -7 C. The FMP shall include operating and financial data such as current estimates of vehicle operating costs, reliability and life expectancy, for decision - making and performance review. D. The FMP shall be formatted and calculated in conformance with FTA Circular 9030.1 D, specifically with respect to: a. Definition of terms, b. Description of existing system and expansion plans, both project and non - project related, c. Justification of the demand for revenue vehicles and operating spare ratio, d. Process for reconciling demand versus supply to determine if additional vehicles will be needed, overhauled, procured or other changes in maintenance practices, inventory, information technology, capital investment will be implemented instead; e. Preventive maintenance schedule for the procured /overhauled rail car fleet; f. Grantee's reliability program, past performance and plans to improve reliability including profile monitoring and support of maintenance, failure rates and rail cars out -of- service, and train failure definitions and actions; E. The FMP shall discuss the selection and specification of vehicle equipment and systems and how the specifications matched the appropriate technology with the planned transit applications for the best performance at the lowest cost. F. The FMP shall ensure that the project's estimates of costs, service levels, quality, or reliability are mechanically correct and complete, consistent with the grantee - defined methodologies and free of any material inaccuracies or incomplete data. G. The FMP shall discuss the project's forecasts and schedule, to be consistent with the plan scope and project scope adopted in the Record of Decision (if applicable) and the proposed Revenue Operations Date and shall free of any material inaccuracies or incomplete data. Task 4 Deliverables: 1. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the draft FMP 13 19D -8 Task 5 - Quality Management Plan (QMP) Consultant shall prepare a QMP that is consistent with the requirements presented in FTA's Quality Assurance and Quality Control Guidelines (February 2002). Task 5 Deliverables: 1. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the draft QMP 2. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the final QMP Task 6 - Real Estate Acquisition Management Plan (RAMP) Consultant shall prepare a RMP which fully complies with 49 CFR Part 24 and is based upon FTA's "Model for Development of a Real Estate Management Plan ". Task 6 Deliverables: 1. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the draft RAMP 2. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the final RAMP Task 7 - Investment Grade Ridership Forecasts Consultant shall review the ridership forecasts developed during the Conceptual Engineering phase and, if necessary, perform additional work to provide defensible travel demand forecasts for the following years, taking into account typical "ramp up" effects of new transportation modes: A. Opening Day (2015) B. Interim (2025) C. Long -Term (2035) The resulting forecasts shall based upon OCTAM, but shall include refinements necessary to accurately forecast system ridership. Consultant shall secure OCTA 14 19D -9 concurrence on any proposed refinements to OCTAM and, if necessary, develop travel surveys and analyze travel forecasting uncertainties to support the proposed approach to developing Santa Ana - Garden Grove fixed guideway system ridership forecasts. The final report shall detail any post - processing or "off- model" work that was completed and include ridership forecast for Task 8, FTA Summit Analysis. Task 7 Deliverables: 1. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the draft ridership forecasts 2. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the final ridership forecasts Task 8 — FTA Summit Analysis Using the FTA Summit software, Consultant shall determine Transportation System User Benefits for reduced the set of "Build" and "No Build" alternatives selected for the Santa Ana - Garden Grove fixed guideway project. This information shall be presented in a report that includes: A. Thematic Maps for each of the Build Alternatives versus the Baseline Alternative B. Production & Attraction Maps for Each Trip Purpose & Period C. Daily Totals Additional inputs and outputs from Summit, such as trip length frequency reports and row and column sum outputs, shall also be provided. Task 8 Deliverables: 1. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the draft Thematic Maps for Each of the Build Alternatives versus Baseline, Production & Attraction Maps for Each Trip Purpose & Period, and Daily Totals 2. One electronic version (on CD in Microsoft Office Word 2007 or Microsoft Office Excel 2007 format) and 12 hard copies of the final Thematic Maps for Each of the Build Alternatives versus Baseline, Production & Attraction Maps for Each Trip Purpose & Period, and Daily Totals 15 19D -10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: REQUEST FOR PROPOSALS FOR PART TIME PLAN CHECK SERVICES CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 15` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the Planning and Building Agency to send a Request for Proposals to qualified consulting firms to provide part-time plan check services for the Building Division. DISCUSSION For many years the Building Division achieved a goal of a three week or less turnaround time for plan checks. This goal was attained for over 90 percent of plan check submissions. This was in part the result of streamlining internal processes, incorporating a contract plan checker to assist customers at the public counter, and outsourcing plan checking services during especially high volume months. Beginning in 2009, budget constraints resulted in the reduction of in -house plan check staff as well as the cancelling of contracts for both a contract plan checker and outsourced plan check services. While these reductions negatively impacted plan check turnaround times, the impact was lessened by a concurrent reduction in plan check submittals due to the economic downturn. Although building activity remains below the five year average, Planning and Building Agency statistics indicate a slow but steady upward trend in both plan check submittals and public counter customers over the last 12 months. While this increase is a positive sign for development, current staffing levels are no longer sufficient to maintain an acceptable turnaround time and still provide a high quality plan check. In December 2010, the City Council approved a contract with Scott Fazekas and Associates, Inc. for outsourcing of certain types of plan checks. This additional plan check option has partially improved turnaround times, but has had no effect on public counter service. To continue to reduce plan check turnaround times and improve service at the public counter, the Planning and Building Agency is proposing to contract with a private consulting firm providing a part time plan checker to assist customers at the public counter and perform while - you -wait plan checks on smaller projects. A Request for Proposals for consultant services was prepared in conjunction with this request (Exhibit 1). The recommended plan check services contract will be submitted for City Council authorization after the review of proposals has been completed. 19E -1 Request for Proposals for Part Time Plan Check Services April 18, 2011 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. ' Ja M. Trevino ecutive Director Planning and Building Agency MF:rb MF /RFP /request to send RFP - Part-time plancheck services Exhibit: 1. Request for Proposals 19E -2 REQUEST FOR PROPOSALS FOR PART -TIME PLAN CHECK SERVICES APRIL 18, 2011 CITY OF SANTA ANA BUILDING DIVISION, M -20 20 CIVIC CENTER PLAZA POST OFFICE BOX 1988 SANTA ANA, CALIFORNIA 92702 Submittal Deadline Due Date and Time: XXXX XX, 2011 Before 5:00 p.m. Proposal Submittal: Proposals must be submitted to the City of Santa Ana, Planning and Building Agency, Attn: Fred Heidari, Deputy Building Official, per the Submittal Instructions Section of this RFP. ALL PROPOSALS MUST BE RECEIVED BEFORE 5:00 PM ON XXXX XX, 2011. NO LATE PROPOSALS WILL BE ACCEPTED. Any requests for clarification or other questions concerning this RFP must be submitted via e-mail to fheidari0santa- ana.org before 4:00 p.m. on xxxx xx, 2011. Responses will be provided via an addendum sent via email. The City of Santa Ana reserves the right to reject any or all Proposals, to waive any informality in any Proposal, and to select the Proposals that best meet the City's needs. 19E -3 REQUEST FOR PROPOSALS FOR PART -TIME PLAN CHECK SERVICES I. BACKGROUND/ INTRODUCTION The City of Santa Ana is seeking proposals from qualified firms (Consultant) to provide part -time plan check services for the Permits and Plan Check Division of the Planning and Building Agency. For many years the Building Division has achieved a goal of a three week or less turnaround time for over 90 percent of plan checks. This has been accomplished through a variety of process improvements, but also by incorporating a part -time contract plan checker to review small projects and assist customers at the public counter. In 2009, budget constraints resulted in the reduction of in -house plan check staff as well as the elimination of a contract plan checker. While these reductions negatively impacted plan check turnaround times and service at the public counter, the impact was lessened by a concurrent reduction in plan check submittals due to the economic downturn. Although building activity remains comparatively low, Planning and Building Agency statistics indicate a slow but steady upward trend in both plan check submittals and public counter customers over the last 12 months. This increase in development and public counter activity has resulted in the need to once hire a part -time contract plan checker to augment in -house staff for both plan check services and assistance to customers at the public counter. II. PURPOSE The purpose of this Request for Proposals ( "RFP ") is to solicit competitive proposals from qualified persons and /or firms to provide a contract staff person to provide building plan check services and customer assistance at the public counter for the City of Santa Ana ( "City "). The City's intent is to minimize response time and improve customer service at the public counter by supplementing in house staff with consulting services for building plan check. III. GENERAL INFORMATION The term of the consultant will begin when the proposal is approved by the Executive Director of the City of Santa Ana Planning & Building Agency, A. In an effort to promote the hiring and utilization of local businesses /merchants, when selecting a consultant to perform the tasks identified in the following sections, local companies shall be given preference. B. This RFP does not commit the City to pay costs incurred in preparation of a response. The City reserves the right to accept or reject the combined or separate components of this proposal in part or in its entirety. C. All responses to the RFP shall become property of the City. Applicants who wish to retrieve documents submitted as part of the response to the RFP may do so after Consultant selection. 19E -4 D. All costs incurred in the preparation of the proposal, the submission of additional information and /or any aspect of a proposal prior to award of a written contract will be borne by the respondent. E. The City reserves the right to reject and replace any and all subcontractors, and reserves the right to approve all subcontractors. ADDENDA Any subsequent changes in RFP from the date of preparation to date of submittal will result in an addendum by the issuing office. RULES FOR PROPOSALS The signer of the RFP must declare in writing that the only person, persons, company or parties interested in the proposal as principals are named therein; that the proposal is made without collusion with any other person, persons, company or parties submitting a proposal; that it is in all respects fair and in good faith without collusion or fraud; and, that the signer of the proposal has full authority to bind the principal proposer. IV. SCOPE OF SERVICES The selected consultant shall provide the following services on a part -time basis (20 hours per week): Thorough and efficient plan review, including approval or disapproval of submitted plans for residential, commercial and industrial additions /alterations /tenant improvements. • Review of ancillary items requiring plan check such as signs, walls and fences. In addition to plan check services, the consultant will assist engineers, architects, contractors and general public with questions regarding Building Code requirements and State Laws at the public counter. V. SUBMITTAL INFORMATION AND DEADLINE Proposals are due to the City of Santa Ana Permits and Plan Check Division, M -19, 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, CA 92702 and made attention to Fred Heidari at (714) 647 -5862 or can be faxed to 714 - 973 -1461. Proposals received after the date and time specified in this RFP will be rejected by the Agency as non - responsive. VI. SUBMITTAL REQUIREMENTS Respondents desiring to respond to the RFP shall submit an original and two (2) copies of the proposal, marked on the outside "RFP FOR PLAN CHECK CONSULTANT SERVICES ". Proposed rate structure shall be submitted in a separate sealed envelope. The proposals shall 3 19E -5 include the name of the respondent. In order to be considered, a proposal must be submitted prior to 5:00 pm on XXXXX XX, 2011 to the attention of: Fred Heidari Deputy Building Official City of Santa Ana 20 Civic Center Plaza (M -19) Santa Ana, CA 92702 Responses sent by telephone, or email will not be accepted. It is the sole responsibility of each proposer to ensure that its proposal reaches the City by the time and date specified. Once opened, all responses become public record and will be available to the public for review. Cost incurred by the respondent in the preparation of the response to this RFP is the sole responsibility of the respondent, and will not be reimbursed by the City. Please include the following in the submitted RFP: Letter of Introduction - Briefly describe the firm; and the name, address, e-mail, and phone number of the contact person as well as a summary of the respondent's understanding of the scope of services and overall approach to the scope of services. The letter should be signed by an officer of the respondent's firm authorized to bind the firm to all commitment made in the proposal. 2. Experience and Qualifications - Describe relevant experience and qualifications of key individuals that may be involved in providing services. Provide resumes for all key personnel. 3. References - Provide at least three (3) references that may be contacted for verification of the respondent's experience and qualifications. 4. Rate and Service Structure (submitted in a separate sealed envelope) - Fee Structure for personnel specified as an hourly rate. 5. Insurance Requirements - All required insurance must be current and up -to -date in advance and renewed annually. A consultant my not work for the City of Santa Ana until the appropriate insurance has been provided and approved by the City Attorney. This shall be verified by City Staff. VII. CONSULTANT SELECTION The City will review the responses to the RFP and make a determination as to the most responsive, best suited and most qualified to provide the service being requested. Generally, the criteria will include, but not be limited to: • The responsiveness to the specific needs of the City and an understanding of the services to be provided. 11 19E -6 • Experience, expertise and knowledge particular to the City's needs, in providing services of a similar nature. • The skills, education and experience of the consultant. • Local businesses preference. For purposes of selection criteria, local is defined as having a headquarters or branch office located in either the City of Santa Ana, or within Orange County. • References. • Cost. VIII. METHOD OF PAYMENT The Consultant shall submit a monthly invoice to the City for the services rendered in that month. The invoice shall include a summary as well as a detailed breakdown of the tasks, the hours, and hourly rates. IX. REGULATIONS The selected consultant shall be expected to comply with all applicable federal, state, city regulations, and contract provisions. 5 19E -7 1pi oel REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING FY 2010/11 CAL -GRIP GRANT FUNDING PROGRAM CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1St Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve an appropriation adjustment recognizing the FY 2010/11 California Gang Reduction, Intervention and Prevention Program Fund (CAL GRIP) in the amount of $369,309 into the revenue account (no.15514002- 52028) and appropriate same into the expenditure accounts (nos. 15514412 - various). DISCUSSION The State of California, Office of Emergency Management Agency provides grant funding to state law enforcement agencies through the California Gang Reduction, Intervention and Prevention Program Fund (CAL GRIP). This competitive grant program is part of the State's commitment to combating gang and youth violence and is awarded to cities and community -based organizations with a heavy concentration of gangs. The Santa Ana Police Department's Police Athletic and Activities League ( SAPAAL) in a collaborative effort with additional government agencies, educational partners and community based groups, submitted and has been awarded CAL GRIP grant funding. This funding will provide the SAPAAL and its partners with the resources to enhance its established gang prevention and intervention programs with the objective of increasing participation of at -risk youth by as much as 20 %. This two -year grant requires a 100% match on the part of the City. The Police Departments in- kind match includes the salary and benefits of one Police Officer, and a portion of the SAPAAL Assistant Director position. Funds from this match requirement are budgeted in the General Fund and the Police Criminal Activity Fund. 20A -1 CAL-GRIP April 18, 2011 Page 2 FISCAL IMPACT Approval of the appropriation adjustment will increase revenues in the CaIEMA — Gang Reduction, Intervention & Prevention FY 2010/11 revenue account (no. 15514002 - 52028) by $369,309 and increase the same into the expenditure accounts (no. 15514412 - various). The matching requirement will be derived over a period of two years from the Police Training General Fund account (01114410 - various), and Criminal Activities Asset Forfeiture account (02614450- various). ` iz �. Paul M. Walters Chief of Police Police Department APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Mgmt. Services Agency REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: CONTRACT RENEWAL TO CERTIFIED TRANSPORTATION SERVICES FOR CHARTER BUS SERVICE (SPEC. NO. 08 -046) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: F-11 as 0071 we, ❑ As Recommended ❑ As Amended ❑ Ordinance on 151 Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Renew the contract with Certified Transportation Services, Inc. for charter bus service in an amount not to exceed $100,600. DISCUSSION The Parks, Recreations and Community Services Agency utilizes charter bus services for youth excursions, Zoo Camps excursions, and OCTA Senior Mobility Program transportation needs. Additionally, the Police Athletic and Activities League (PAAL) under the California Gang Reduction, Intervention and Prevention Program (CAL -GRIP) grant uses charter bus services for weekly excursions including their 8 -week summer program. On August 1, 2008, the City Council awarded a contract to 2 vendors at $30,000 each for a one -year period with provision for four, one -year renewals. Over the past contract period, one of the vendors has continuously underperformed and their services were cancelled, moving the entire charter bus service schedule to Certified Transportation Services. The projected annual expense for Certified Transportation through the end of the current fiscal year is $45,600 and $55,000 for next fiscal year, for a total two -year contract amount of $100,600. The vendor has performed satisfactorily during the past contract period and has agreed to renew the contracts without an increase in pricing. 22A -1 Contract Renewal for Charter Bus Service April 18, 2011 Page 2 FISCAL IMPACT Funds are available in the Parks & Recreation OCTA Senior Mobility Program Grant account (16913202- 62300), Youth Guidance account (01113230- 62300) and Police OCTP Grant OES Gang Prevention CALGRIP account (15514412- 62300). Gerardo Mouet Executive Director Parks, Rec. & Comm. Svcs. Agency Pau M. Walters Chief of Police Police Department KM APPROVED AS TO FUNDS AND ACCOUNTS: "'A zr� Mt" r 1 D Francisco Gutierrez" Executive Director Finance & Management Services Agency 22A -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: CONTRACT RENEWALTO FISHER SCIENTIFIC FOR SAFETY GLOVES (SPEC. NO 08 -076) ITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Renew the contract with Fisher Scientific, LLC for safety gloves for a one -year period in an annual amount not to exceed $35,000. DISCUSSION The Finance and Management Agency Central Stores warehouse carries safety gloves for various departments such as the Public Works Agency, Fire Department and Fleet Services. Included are neoprene gloves for use with chemicals, puncture- resistant gloves, canvas and leather work gloves, and disposable rubber gloves. The contract for safety gloves is designed to provide quality products at significant savings based on quantity pricing. On April 6, 2009, the City Council awarded a contract to Fisher Scientific for a one -year period with provision for three one -year renewals. Fisher Scientific has performed satisfactorily during the past contract period and has agreed to renew the contract without an increase in pricing. Staff recommends the second renewal of the contract. FISCAL IMPACT Funds are available in the various departmental Operating Miscellaneous Office Expense accounts (no. 63001). Francisco Gutierrez Executive Director Finance and Management Services Agency ,/ EG 22B -1 G I REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: CONTRACT RENEWAL WITH REPIPE- CALIFORNIA FOR ON -CALL SANITARY SEWER LINING SERVICES (SPEC. NO.09 -010) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 15` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Renew the contract with RePipe- California, Inc. for on -call sanitary sewer lining services for a one - year period in an amount not to exceed $500,000. DISCUSSION The Public Works Agency's Water Resources Division maintains a sanitary sewer system consisting of approximately 390 miles of pipelines and 8,500 manholes. Since 2003 the City has been conducting ongoing closed- circuit digital video assessments of the City sewer system. Of the data collected, approximately 22 miles of sanitary sewer main have been assessed as suitable for rehabilitation. These locations have been identified as non - capacity issues, but have structural defects such as holes, cracks and root intrusions making them suitable for pipe relining repair. The Capital Improvement Program pipe liners are the most efficient and cost effective (trenchless) method available for the repair of sewer pipes. On April 6, 2009, the City Council awarded a contract to RePipe- California, Inc., for a one -year period, with provisions for three one -year renewals. RePipe- California, Inc. has performed satisfactorily during the past contract period and has agreed to renew the contract for the third year without an increase in pricing. Staff recommends the second renewal of the contract. FISCAL IMPACT Funds are available in the Sanitary Sewer Service account (no. 05617640 -66220 activity 11640801028- 6022). Raul Godinez II Executive Director Public Works Agency km APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 22C -1 22C -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: CONTRACT CHANGE ORDER NO. 1; SR55 /MACARTHUR BOULEVARD RAMPS WIDENING (PROJECT NO. 072503) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Approve Change Order No. 1 for SR55 /MacArthur Boulevard ramps widening for an estimated cost of $600,000. DISCUSSION Due to the Measure M funding deadline for the award of construction of June 30, 2010, the ramp widening project at the SR55 and MacArthur Boulevard was advertised prior to receiving Caltrans final design revision. The construction project was awarded while the plans were still in review by Caltrans. Caltrans involvement was necessary since the ramp improvements are in a State right - of -way. After the bid award in June 2010, Caltrans revised the plans according to its design and construction standards. The revisions include increasing the limits of the project, revising the pavement section and ramp metering system, and replacement of the metal beam guard railing as mandated by Caltrans. This change order is to authorize the contractor to perform the revised work, which will be done based on both unit bid prices and negotiated pricing (Exhibits 1 and 2). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT The cost for the change order is estimated at $600,000. Funds are available in the Measure M Regional Interchange Program Fund (accounting unit 03217660- 66220) and the Transportation System Improvement Area E Fund (accounting unit 03417660- 66220). 23A -1 Contract Change Order No. 1 SR55 /MacArthur Boulevard Ramps Widening (Project No. 072503) April 18, 2011 Page 2 of 2 Raul G6dinez II Executive Director Public Works Agency RGNVA Exhibit 1: Change Order No. 1 Exhibit 2: Change Order Analysis APPROVED AS TO FUNDS AND ACCOUNTS: -�- NcL��� o Francisco Gutierrez Executive Director Finance & Management Services Agency EXHIBIT 1 CITY OF SANTA ANA PUBLIC WORKS AGENCY CONTRACT CHANGE ORDER Project Number PROJECT NO. 07 -2503 — SR -55 /MacArthur Boulevard Ramps Change Order Number Widening 1 To Peterson -Chase General Engineering Construction Inc. Contractor You are hereby directed to make the herein changes from the plans and specifications or do the following described work not included in the plans and specifications on this contract. NOTE: THIS CHANGE ORDER IS NOT EFFECTIVE UNTIL APPROVED BY THE CITY COUNCIL OR CITY MANAGER. Unless otherwise stated, rates for rental of equipment cover only such time as equipment is actually used and no allowance will be made for idle time. Change requested by PUBLIC WORKS AGENCY The contract shall be modified per City of Santa Ana PCO Nos. -1 and 2 dated November 30, 2010 and December 30, 2010, respectively and the contract bid items shall be modified as follows: 1. REVISED QUANTITIES ON UNIT - PRICED WORK ITEMS Revised Revised Item # Contract Bid Item unit nuantity t Init Prirc rnct 8 Temporary Traffic Stripe (Paint) LF 9,870 $0.26 $2,566.20 9 Traffic Plastic Drum EA 287 $50.00 $14,350.00 11 Temporary Railing (Type K) LF 4,427 $11.50 $50,910.50 16 Remove Metal Beam Guard Railing LF 290 $10.00 $2,900.00 17 Remove Roadside Sign EA 8 $100.00 $800.00 18 Remove Asphalt Concrete SF 0 $0.70 $0.00 25 Relocate Roadside Sign - One Post EA 7 $150.00 $1,050.00 26 Relocate Roadside Sign - Two Post EA 0 $800.00 $0.00 33 Roadway Excavation CY 4,737 $23.00 $108,951.00 34 Structural Excavation CY 140 $21.00 $2,940.00 35 Structural Backfill CY 90 $25.00 $2,250.00 38 Temporary Fiber Roll LF 1,620 $2.00 $3,240.00 39 Plant (Group F) EA 554 $1.00 $554.00 40 Plant (Group H) EA 0 $1.40 $0.00 44 Class 2 Aggregate Subbase CY 1,730 $25.00 $43,250.00 45 Class 2 Aggregate Base CY 1,474 $35.00 $51,590.00 46 Asphalt Treated Permeable Base CY 0 $143.00 $0.00 47 Hot Mix Asphalt (Type B) TON 0 $85.00 $0.00 48 Rubberized Hot Mix Asphalt (Gap Graded) TON 1,308 $100.00 $130,800.00 49 Place Asphalt Concrete Dike (Type D) LF 1,411 $6.00 $8,466.00 50 Structural Concrete CY 50 $240.00 $12,000.00 23i+ 13f 4 EXHIBIT 1 CITY OF SANTA ANA PUBLIC WORKS AGENCY CONTRACT CHANGE ORDER Project Number PROJECT NO. 07 -2503 — SR -55 /MacArthur Boulevard Ramps Change Order Number Widening 1 To Peterson -Chase General Enqineerinq Construction Inc. Contractor You are hereby directed to make the herein changes from the plans and specifications or do the following described work not included in the plans and specifications on this contract. NOTE: THIS CHANGE ORDER IS NOT EFFECTIVE UNTIL APPROVED BY THE CITY COUNCIL OR CITY MANAGER. Unless otherwise stated, rates for rental of equipment cover only such time as equipment is actually used and no allowance will be made for idle time. Change requested PUBLIC WORKS AGENCY by Revised Revised Item # Contract Bid Item unit Oimntity I Init Prim rnct 53 Bar Reinforcing Steel LB 11,706 $1.00 $11,706.00 54 Furnish Sign Structure (Truss) LB 35,590 $3.00 $106,770.00 55 Install Sign Structure (Truss) LB 35,590 $0.17 $6,050.30 56 Furnish Formed Panel Sign (Overhead) SIF 0 $10.00 $0.00 57 Furnish Single Sheet Aluminum Sign (0.063"- SF 0 $8.00 $0.00 57a Unframed) SF 51 $12.60 $642.60 58 Furnish Single Sheet Aluminum Sign (0.080"- SF 0 $9.00 $0.00 79a Unframed) LS 1 $54,000.00 $54,000.00 60 Roadside Sign - Two Post EA 0 $800.00 $0.00 69 Chain Link Fence LF 195 $25.00 $4,875.00 74 Thermoplastic Pavement Marking SF 916 $4.40 $4,030.40 79 Modify Lighting (Type 30) LS 0 $50,000.00 $0.00 2. ADD NEW UNIT - PRICED WORK ITEMS Item # New Bid ttems I]nit 01 in ntity I Init Drirn r­+ 46a Asphalt Treated Permeable Base (Standard) CY 290 $200.00 $58,000.00 47a Hot Mix Asphalt (Type A) TON 1,316 $114.00 $150,024.00 48a Rubberized Hot Mix Asphalt (Gap Graded) TON 738 $118.00 $87,084.00 (Standard) 56a Furnish Formed Panel Sign (Overhead) SF 314 $15.00 $4,710.00 57a Furnish Single Sheet Aluminum Sign (0.063 " - SF 51 $12.60 $642.60 Unframed) 79a Modify Lighting (Type 30) LS 1 $54,000.00 $54,000.00 2 SX-4f 4 EXHIBIT 1 CITY OF SANTA ANA PUBLIC WORKS AGENCY CONTRACT CHANGE ORDER Project Number PROJECT NO. 07 -2503 — SR -55 /MacArthur Boulevard Ramps Change Order Number Widening 1 To Peterson -Chase General Enqineerinq Construction Inc. Contractor You are hereby directed to make the herein changes from the plans and specifications or do the following described work not included in the plans and specifications on this contract. NOTE: THIS CHANGE ORDER IS NOT EFFECTIVE UNTIL APPROVED BY THE CITY COUNCIL OR CITY MANAGER. Unless otherwise stated, rates for rental of equipment cover only such time as equipment is actually used and no allowance will be made for idle time. Change requested PUBLIC WORKS AGENCY by Item # New Bid Items Unit nimntity t Init Prim rnct 82 Cold Mill AC - .2' max SF 96,034 $0.34 $32,651.56 83 Remove K- Railing LF 3,719 $4.90 $18,223.10 84 3" Plastic Pipe (Edge Drain) LF 1,094 $34.50 $37,743.00 85 3" Plastic Pipe (Edge Drain Outfall) LF 52 $81.00 $4,212.00 86 Metal Beam Guard Rail (12A Layout) LF 38 $110.00 $4,180.00 87 Transition Railing EA 1 $5,300.00 $5,300.00 88 Free Import Compaction $50,000.00 89 Import Soil (R20) Load 258 $218.40 $56,347.20 91 Irrigation Modification LS 1 $10,590.00 $10,590.00 92 Electrical Modification (PCO 1) LS 1 $51,570.00 $51,570.00 93 Electrical Modification (PCO 2) LS 1 $100,000.00 The contractor shall be paid actual quantities installed per the existing contract bid items and the new bid items established by this change order. ! ! ! ! ! 2 Sage 0 4 EXHIBIT 1 CITY OF SANTA ANA PUBLIC WORKS AGENCY CONTRACT CHANGE ORDER Project Number PROJECT NO. 07 -2503 — SR -55 /MacArthur Boulevard Ramps Change Order Number Widening To Peterson -Chase General Enqineerinq Construction Inc. Contractor You are hereby directed to make the herein changes from the plans and specifications or do the following described work not included in the plans and specifications on this contract. NOTE: THIS CHANGE ORDER IS NOT EFFECTIVE UNTIL APPROVED BY THE CITY COUNCIL OR CITY MANAGER. Unless otherwise stated, rates for rental of equipment cover only such time as equipment is actually used and no allowance will be made for idle time. Change requested by PUBLIC WORKS AGENCY The compensation both time and cost set forth in this change order comprises the total compensation due the Contractor, all Subcontractors, and all Suppliers for all work performed per this change order, including impact on unchanged work. By signing this change order, the Contractor acknowledges and agrees on behalf of himself, all Subcontractors, and all Suppliers, that the stipulated compensation includes payment for all work contained in this change order, plus all payment for interruption of schedules, extended field overhead, home office overhead, profit, delay, and all impact, ripple effect or cumulative impact on all other work under this Contract. The signing of this change order constitutes full mutual accord and satisfaction for all changes and work performed on this project, and that the time and cost paid per this change order constitutes the total equitable adjustments owed the Contractor, all Subcontractors, and all Suppliers for all work performed on this project. The Contractor on behalf of himself, all Subcontractors, and all Suppliers agrees to waive all rights, without exception or reservation of any whatsoever to file any further claim related to this project. TOTAL ESTIMATED COST THIS CHANGE ORDER: DECREASE .$ -0- ESTIMATED INCREASE $600,000 By reason of this order the CONTRACT TIME completion will be adjusted as follows: Add 60 working days. We the undersigned contractor have given careful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, except as may otherwise be noted above, and perform all service necessary for the work above specified, and will accept as full payment therefor the prices shown above. Accepted, Date By Approval recommended by Approved by Contractor Peterson -Chase General Engineering Construction Inc. Title PUBLIC WORKS AGENCY EXECUTIVE DIRECTOR CITY MANAGER 23X6f4 Date Date CHANGE ORDER ANALYSIS PROJECT NO. 072503 SR55 /MACARTHUR BOULEVARD RAMPS WIDENING CHANGE ORDER NO. 1 Change Order Number: 1 Project Description: SR55 /MacArthur Boulevard Ramps Widening Contractor: Peterson -Chase General Engineering Construction, Inc. 1792 Kaiser Ave Irvine, CA 92614 Original Contract Cost: $1,126,850.64 Amount of this Change Order: $600,000 53.2 percent Previously approved Change Orders: -0- -0- Total Change Orders: $600,000 53.2 percent EXHIBIT 2 23A -7 �*Ulffoe,� REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: CONTRACT CHANGE ORDER NO. 2: DYER ROAD AND GRAND AVENUE INTERSECTION WIDENING CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s` Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve Change Order No. 2 for Dyer Road and Grand Avenue Intersection Widening for an estimated cost of $75,000. DISCUSSION Last summer, two water mains broke occurred: one on Grand Avenue north of Dyer Road and the other near the Dyer Road /Hotel Terrace intersection. Gushing water caused extensive damage to the pavement, median island and sidewalk. The water mains were repaired promptly by the City crew and the pavement and sidewalk were temporarily patched. A permanent repair is required. If the repair were to be done by a maintenance contractor, the cost would exceed $150,000. However, since the damaged areas are in proximity to the Dyer Road /Grand Intersection project, All American Asphalt (the contractor for the project) is able to perform the repair work at a lower cost based on unit bid prices. A change order is required to reconstruct the permanent pavement, median island, and sidewalk at the affected areas (Exhibits 1 and 2). The contractor shall be paid according to the contract unit prices and the actual quantity of work. FISCAL IMPACT The cost for the change order is estimated at $100,000. Funds are available in the Water System Maintenance Fund (accounting unit 06017641- 62300). 23B -1 Contract Change Order No. 2: Dyer Road and Grand Avenue Intersection Widening April 18, 2011 Page 2 t Raul Godinez II Executive Director Public Works Agency RG /MG Exhibit 1: Change Order No. 2 Exhibit 2: Change Order Analysis w APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency Project Numbers 09 -1751: DYER ROAD AND GRANn AVFNI 1F INTERSECTION WIDENING To ALL American Asahalt CITY OF SANTA ANA PUBLIC WORKS AGENCY CONTRACT CHANGE ORDER Change Order Number 2 Contractor You are hereby directed to make the herein changes from the plans and specifications or do the following described work not included in the plans and specifications on this contract. NOTE; THIS CHANGE ORDER IS NOT EFFECTIVE UNTIL APPROVED BY THE CITY COUNCIL OR CITY MANAGER. Unless otherwise stated, rates for rental of equipment cover only such time as equipment is actually used and no allowance will be made for idle time. Change requested by PUBLIC WORKS AGENCY REVISE THE FOLLOWING BID ITEMS OF THE CONTRACT Remove existing and construct AC Pavement, sidewalks, PCC retaining curb and pattern stamped concrete on Grand Avenue north of Dyer Road and Dyer Road /Hotel Terrace intersection per PCO #3. Line Estimated Unit Item # Line Item Unit Quantity Price 2 Unclassified Excavation CY 2800 $33 3 AC Pavement TN 4300 $72 5 PCC Retaining Curb 131 -A LF 260 $36 7 PCC Sidewalk (4 ") SF 7500 $4 10 Patterned Stamped Concrete SF 1100 $7 12 Furnish and Install Water EA 5 $730 Valve Box Frame and Cover 21 Adjust OCSD Manhole Frame EA 4 $1,050 and Cover to Grade P 3f 6 3 Exhibit 1 CITY OF SANTA ANA PUBLIC WORKS AGENCY CONTRACT CHANGE ORDER Project Number 09 -1751; DYER ROAD AND GRAND AVENUE Change Order Number 2 INTERSECTION WIDENING To ALL American Asphalt Contractor You are hereby directed to make the herein changes from the plans and specifications or do the following described work not included in the plans and specifications on this contract. NOTE: THIS CHANGE ORDER IS NOT EFFECTIVE UNTIL APPROVED BY THE CITY COUNCIL OR CITY MANAGER. Unless otherwise stated, rates for rental of equipment cover only such time as equipment is actually used and no allowance will be made for idle time. Change requested by PUBLIC WORKS AGENCY The compensation both time and cost set forth in this final change order comprises the total compensation due the Contractor, all Subcontractors, and all Suppliers for all work performed per this change order, including impact on unchanged work. By signing this final change order, the Contractor acknowledges and agrees on behalf of himself, all Subcontractors, and all Suppliers, that the stipulated compensation includes payment for all work contained in this final change order, plus all payment for interruption of schedules, extended field overhead, home office overhead, profit, delay, and all impact, ripple effect or cumulative impact on all other work under this Contract. The signing of this final change order constitutes full mutual accord and satisfaction for all changes and work performed on this project, and that the time and cost paid per this final change order constitutes the total equitable adjustments owed the Contractor, all Subcontractors, and all Suppliers for all work performed on this project. The Contractor on behalf of himself, all Subcontractors, and all Suppliers agrees to waive all rights, without exception or reservation of any whatsoever to file any further claim related to this project. ESTIMATED TOTAL COST THIS CHANGE ORDER: DECREASE $ - - - - - INCREASE $ 100,000 By reason of this order the CONTRACT TIME completion will be adjusted as follows None. We the undersigned contractor have given careful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, except as may otherwise be noted above, and perform all service necessary for the work above specified, and will accept as full payment therefor the prices shown above. Accepted, Date Contractor ALL American Asphalt By Title Approval recommended by Approved by PUBLIC WORKS AGENCY EXECUTIVE DIRECTOR CITY MANAGER 23�?4 2 Date Date CHANGE ORDER ANALYSIS DYER ROAD AND GRAND AVENUE INTERSECTION WIDENING CHANGE ORDER NO. 2 Change Order Number: 2 Project Description: Dyer Road and Grand Avenue Intersection Widening Contractor: All American Asphalt PO Box 2229 Corona CA 92878 -2229 Original Contract Cost: $721,180 Amount of this Change Order: $100,000 13.9 percent Previously approved Change Order: 72,118 10.0 percent Total Change Orders: $172,118 23.9 percent EXHIBIT 2 23B -5 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: AMENDMENT TO AGREEMENT WITH ORANGE COUNTY MAILBOXES FOR DOWNTOWN GENERAL MAINTENANCE SERVICES AND GUARDRAIL, BOLLARD AND CHAIN LINK FENCE REPAIR CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached amendment to the agreement with Orange County Contractors Services dba Orange County Mailboxes and Construction to provide general maintenance services in the Downtown Santa Ana area as well as City wide repair to guardrails, chain link fences and traffic bollards for an amount not to exceed $100,000 through June 30, 2012, with an option to extend the agreement for two additional one -year renewals, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The City is responsible for maintaining public safety and reducing liability on approximately 400 miles of streets. Contract services are necessary to assist with the repair of guardrails, permanent chain link fencing, block walls and traffic bollards. In addition, the City maintains the general Downtown area by providing general maintenance services for all public areas covering streets, sidewalks and parking areas to insure a functional environment and minimizing safety hazards with repair to bollards and pavements as well as electrical and plumbing repairs on a call -out basis. In January of 2010, a request for proposal for General Maintenance Services in the Downtown area was prepared and the Orange County Mailboxes and Constructions was selected as the most responsive and lowest bidder. On April 12, 2010, the City entered into a $25,000 agreement with Orange County Mailboxes and Construction for a term through June 30, 2010 with one automatic renewal and the option to extend for two additional one -year periods. In order to continue providing the same level of general maintenance in the Downtown area, the agreement needs to be increased by an additional $10,000 for this fiscal year. Due to increased market costs in equipment and materials, the contractor requested an hourly rate increase. Staff is recommending a rate increase of 15% or an hourly rate to $60 based on the market and the 25A -1 Amendment to Agreement for Bollard and Pavement Repairs April 18, 2011 Page 2 high levels of quality work provided. This increased hourly rate is still approximately 17% below the next responsive bidder. In addition, Request for Quotes were solicited from November to December 2010 for the scope of services involving City wide repairs to guardrails, permanent chain link fencing, block walls and traffic bollards. Three quotes were received and evaluated and Orange County Mailboxes and Construction came in as the lowest and most responsive to the specifications and meets the City's requirements (Exhibit 1). Staff is also requesting a $15,000 agreement for this service. Due to the existing agreement for Downtown general maintenance services, the cumulative award for Orange County Mailboxes and Construction exceeds the $25,000 threshold, thus requiring City Council approval. Orange County Mailboxes and Construction has been diligent in addressing its work plan in detail and its work in the Downtown area has exceeded acceptable levels of maintenance. For a continuous level of service, staff recommends the first amendment to accommodate the need for continued maintenance services in the Downtown area and to assist with City wide repair of guardrails, permanent chain link fencing, block walls and traffic bollards, for a not to exceed amount of $50,000 for current fiscal year and $50,000 for fiscal year 2011 -12 with the option to extend for two additional one -year periods. This agreement would combine both scope of services. FISCAL IMPACT Funds are available in the Downtown Maintenance Fund account (accounting unit 40718842- 62300) and Contract Services — Professional account (accounting unit 01117625 - 62300). r Raul Godinez II Executive Director Public Works Agency a".EdwardsO Intee Director Community Development agency GL /PG Exhibit: 1. Abstract of Quotes 2. Amendment to Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 25A -2 ABSTRACT OF QUOTES FOR GUARDRAIL, CHAIN LINK FENCE, BLOCK WALL AND BOLLARD REPAIR Vendor Orange County Alcorn Fence Quality Fence Mailboxes and Company Co Construction Huntington Location Beach Total $ 4,695.00 Exhibit 1 25A -3 Sun Valley Paramount $ 15,170.00 $ 5,841.00 25A-4 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on April 18, 2011, by and between Orange County Contractors Services dba Orange County Mailboxes and Construction, a sole ownership entity ( "Contractor ") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City"). RECITALS: A. The parties entered into that certain Agreement N- 2010 -037, dated April 12, 2010, (hereinafter "said Agreement ") by which Contractor has provided general construction maintenance services. B. After the parties entered into said Agreement, the Santa Ana Public Works Agency issued a Request for Quotes for guardrail, chain link fence, block wall and traffic bollard repair. Contractor was the successful bidder pursuant to the Request for Quotes. C. In accordance with the terms and conditions of said Agreement, the parties wish to increase the Scope of Services, increase compensation to pay for the additional services and extend the term of said Agreement. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this First Amendment to Agreement, the parties agree as follows: Section 1, SCOPE OF SERVICES, shall be deleted in its entirety and replaced with the following: "a. Contractor shall perform general maintenance services for downtown Santa Ana, including, but not limited to, bollard repair, pavement repair, electrical and plumbing work on a call -out basis, as set forth in City's Request for Proposal, attached as Exhibit A to said Agreement. b. Contractor shall assist the Santa Ana Public Works Maintenance Services Division with the installation, repair and removal of right -of -way pedestrian and vehicle safety devices, including guardrail, chain link fencing, block wall and traffic bollards, on a call -out basis, as set forth in City of Santa Ana Annual City Guardrail, Chain Link Fence, Block Wall and Traffic Bollard Repair Contract Fiscal Year 2010 -2011, attached hereto as Exhibit A -1 and incorporated by this reference." 2. Section 2, COMPENSATION, shall be amended to read as follows: a. Downtown Santa Ana maintenance services shall be charged on a time and material basis. The hourly rate of $60.00shall cover costs, including labor, overhead, travel, mileage, incidental supplies, hardware, screws, bolts, welding material, paint, wires, disposal of material and concrete, etc. Special materials will be purchased by the Contractor only on authorization of the City Project Manager. Such special materials shall be charged at cost plus 10 %. Compensation for downtown Santa Ana maintenance services shall be increased $10,000, for a total not to exceed amount of $35,000, to pay for services provided through the end of the current fiscal year. An additional $25,000 shall be available for downtown repair services provided during the 2011 /2012 fiscal year. EXHIBIT 2 25A -5 Compensation for Public Works maintenance services shall be as agreed per Job Proposals prepared by Contractor and accepted by City. Total compensation shall not exceed $40,000 during the term commencing with the execution of this Second Amendment and running through June 30, 2012. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City." 3. Section 3 TERM, shall be deleted in its entirety and replaced with the following: "This Agreement shall commence on April 12, 2010 and terminate on June 30, 2012, unless terminated earlier in accordance with Section 12, below. The term may be extended for up to two (2) additional twelve (12) month periods upon the agreement of the parties." 4. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement on the date and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager ORANGE COUNTY CONTRACTORS SERVICES EDWARD SCHADE Owner l EXHIBIT A -1 25A -7 REQUEST FOR QUOTE CITY OF SANTA ANA INSTRUCTIONS RFQ DATE: 12 -17.10 QUOTE NO: QUOTE DUE: B10842 1.1.11 t. Bid must be on this form. 2. Bid each Stem separately. 3. Read the instruction, terms end conditions. 4: Direct correspondence/ inquiries to the Buyer. 51 Bid the lowest het price, F.O.B, destination, site emplaced. S. Bids will be opened at or immediately following the due tine. Note: The successful bidder must comply with S.A.M.C. Chapter 21 regarding payment of Business License Tax. PURCHASING, DIVISION AI-16 20 CIVIC CENTER PLAZA, RM. 429 SANTA ANA, CALIFORNIA 92101 BUYER; Bruce Perret (714) 647 -5469 PAYMENT TERM$ DELIVERY (Calemdar oya attar seta pt of order) REQUIREMENTS AND SPECIFICATIONS: GUAR.DRA.I.L, CHAIN LINK FENCE, BLOCK WALL AND BOLLARD REPAIR The City of Santa Ana is soliciting bids from qualified Contractors. to provide guardrail, chain -link fence, block wall and bollard repairs at various locations citywide. The term' of this contract shall be for a period of one year from the date of award with provision for three one -year extensions upon mutual agreement. The contractor shall provide. all labor, equipment and materials necessary to perform work in accordance with the specifications and provisions herein. All questions regarding the specifications must be submitted in writing to the Buyer. Fax all questions to 714 - 647 -6944 attention: Bruce Perret, or email to: bperret0santa-ana.org, A written response will be provided. As a condition. of this contract, the contractor shall obtain and maintain throughout the term of the contract insurance as described below. A certificate of insurance, naming the City of.Santa Ana as an additional insurer], shall be provided to the Buyer before the reward. e General Liability - $1,000,00(7 each occurrence • Workers Compensation — Within limits 17equired by the State of California 0 Automobile Insurance - $1,000,000 combined single limit Payment and performance bonds shall be executed by the successful bidder and returned within ten (10) days after the successful bidder has received notice.that the contract has been awarded. Bids may be faxed, e- mailed, or delivered in person. EXHIBIT A -1 Council Action BIDDER'S STATEMENT; I have read, understand, and agree to the terms and conditions on all pages of this Invitation For Bid. Upon request, I will transfer and deliver goods to the Chy in accordance with sold terms and conditions, city Clark of N S A 1196 .vrt "<r. Phone No.. FAX No. Ckyi'S__laatfte yf Zip Code Printed Name TOTAL QUALITY SERVICE The City of Santa Ana. is committed to the principles of Total Quality Service (TQS) in serving its customers. All aspects of the City's service are affected including our commitment to making on time Payment for material and services received. Since vendors, who provide services and /or material to the City are indirectly serving the same customers, it is important for the City to expect vendors to share the same commitment to quality including price, delivery and product quality, as well as timely response and service quality. Therefore, prepare a statement of your "quality commitment" to accompany your bid. The statement should address the following five items in regard to services and/or material provided to the City for your quoted price: 1. ON -TIME DELIVERY: a commitment to delivering material & services on or before the promised time. 2. TIMELY RESPONSE: a commitment to consistent timely response to all service requests. 3. QUALITY AS SPECIFIED: a commitment to provide products and /or service meeting or exceeding the specification at your quoted price. 4. QUALITY CONTROL:. a commitment to use methods or procedures to assure quality control of service, material and invoicing.. 5. CUSTOMER SATISFACTION: a commitment to resolve customer concerns regarding the quality of service or material supplied. The quality statement should be included with your bid, responsive ano inererore. must be submitted before your bid is evaluated To the extent. that your statement enhance the quality of service or material provided to the City, your statement will be incorporated in the terms and conditions of the contract. Please Complete This Self- Rating of Delivery (complete) Performance: Circle One: on time 4 late Previous Orders: t 4 3 2 1 Service Response Performance: ( 5, 4 3 2 1 Order for items on this bid: 5 4 3 2 1 Write your statement below or on an enclosed separate sheet. Signed: Date:x EXHIBIT A -1 COU17ty Contractor Services & On "Ing e County Mai /boxes 1.8100'KOVACS LN UNIT 27 HUNTINGTON BEACH CA 92648 Phone: 714 - 878 -3093 FAX: 714- 907 -0644 December 29, 2010 City of Santa Ana 20 Civic Center Plaza Rm 429 Santa Ana, CA 92701 C/O Bruce Perret Dear Mr. Perret: This letter is to address the Total Quality Service requirements of the City of Santa Ana. We at. Orange County Contractor! Services already believe and practice quality customer service. Our workmanship quality and customer service has allowed us to keep busy even in these tough economic times. We have shown our quality and customer service to the City of Santa Ana Public Works Agency and a long list of other customers. Below, I will address the specific areas that are asked for. First, in regards to ON-TIME DELIVERY, we almost always deliver as promised. Sometimes that means adding people and /or working late, but we do what it takes to get the job done on time and on budget. We also don't make promises we can't keep, I believe that it is better to under promise and over deliver. Second, as far as TIMELY RESPONSE, we strive to respond in a reasonable time. By maintaining a good line of communication with key city personnel we can determine the urgency of a job request and respond accordingly, Third, QUALITY AS SPECIFIED is basically meeting the standard requirements. We try to exceed those standard requirements whenever possible. If we do that little extra, people remember that and are usually very satisfied. This has been a key to our success. Forth, QUALITY CONTROL is what is important on every job. I personally check and recheck jobs to make sure. it was done correctly. Finally, CUSTOMER SATISFACTION is meeting or exceeding the expectations of your customer. i try to ask myself on every job "would I be satisfied if I was the paying customer ". I also .have the experience to correct and resolve any customer concerns or problems. In conclusion, Orange County Contractor Services already does and will continue to maintain a commitment to quality. We are excited to have this opportunity to bid and possibly work with the City of Santa Ana on another project. If you have any questions, please call me at 714 -878 -3093. Thank you for your consideration Sincerely, Edward Schade EXHIBIT A -1 25A -10 CERTIFICATION OF NONDISCRIMINATION BY CONTRACTORS As suppliers of goods or services to the City Of Santa -Ana, the Firm listed below certifies that it will not discriminate in its employment practices against any employee or applicant for employment because of such person's race, religion, national origin, ancestry, sex, sexual orientation, age, physical handicap, mental disability, marital status, domestic partner status or medical condition; that it Is in compliance with all federal; state and local directives and executive orders regarding nondiscrimination in employment; and that it agrees to demonstrate positively and aggressively the principle of equal opportunity in employment. WE AGREE 'SPECIFICALLY: 1. To take affirmative steps to hire minority employees within the company.. Z To establish or observe employment policies which affirmatively promote opportunities for minority persons at all job levels. 3. To communicate this policy to all per concerned, including all company employees, outside recruiting services, especially those servicing minority Communities, and to the minority communities at large. FIRM TITLE OF PERSON SIGNINGr1 SIGNATURE D ATE Please include any additional information available regarding equal opportunity employment programs now in effect within your company. EXHIBIT A -1 25A -11 CITY OF SANTA ANA ANNUAL CITY GUARDRAIL, CHAIN LINK FENCE, BLOCK WALL AND TRAFFIC BOLLARD REPAIR CONTRACT FISCAL YEAR 2010-2011 ,BID & CONTRACT AGREEMENT BID PROPOSAL & CONTRACT AGREEMENT TO: CITY COUNCIL OF THE CITY OF SANTA ANA FROM: REQUIREMENT: BLOCK WALL, CHAIN LINK FENCE, GUARD RAIL, AND TRAFFIC BOLLARD REPAIR TYPICAL REPAIR SCENARIO For bidding purposes please provide lump sum prices for the repair work described below. Pricing shall include all installation accessories, e.g. bolts, nuts and other fittings. A. BLOCK WALL While backing out of a delivery drop off spot, a truck damaged a City-owned block wall (See below). The existing re-bar is intact; however; approximately 14 square feet of wall surface needs to be repaired (21- 6"x 8"x 16" blocks). Please provide a lump sum bid for repair of the wall according to Santa Ana Improvement Standard 113-A. The bid shall include all applicable requirements of Standard 113-A and disposal of all broken masonry from the site. / Q —- Repair damage to block wall described above ........ .......................... LS=$ Z� z L4 DAMAGED BLOCK WALL Not IQ Scale (TO BE INCLUDED WITH BID PACKAGE) I of 16 EXHIBIT A-1 25A -12 CITY OF SANTA ANA ANNUAL CITY GUARDRAIL, CHAIN LINK FENCE, BLOCK WALL AND TRAFFIC BOLLARD REPAIR CONTRACT FISCAL YEAR 2010-2011 BID & CONTRACT AGREEMENT TYPICAL REPAIR SCENARIOS (cont.) For bidding purposes please provide prices for the repair work described below, B. CHAIN LINK FENCING An errant driver has destroyed 20LF (2 Panels) of 6' high chain link fencing located on a vacant City lot. Please prepare a lump sum bid for its repair based on the following items and all applicable requirements per Santa Ana Improvement Standard No. 310. 1. Disposal of all destroyed fencing including 3-2'-6"x,8 "x 8" concrete footings, 2. Furnish and install: 3 —8'Lx 1-1/2" Dia. Galt'. 8tl, Line Posts w/caps. 2 —101 x 1 -1/4" Dia. GaIv. StI. Pipe Top Rails 20 LF of 9 GA. 2" Mesh 60" Chain Link Fabric 40 LF of 7 GA. Spring Steel Tension Wire w/ 9 GA. Wire Ties Repair damage to chain link fencing described above ... .............................LS = C. GUARDRAIL On northbound Fairview Street, between First and Willits Streets, a section of guardrail has been damaged (See photo next page). Please prepare a lump sum bid for its repair based on the following items and all applicable requirements per Santa Ana Improvement Standard No. 1114. 1. Disposal of all destroyed material including: 1- 12' -6 "L metal beam guard rail & spade end 3- 8" x 8" x 5" posts and concrete. footings 2. Furnish and install: 1- 12' -6" metal beam guardrail 1 —terminal end section 3 — 8" x 8" x 5' pressure treated posts w/concrete footings Metal Beam Guardrail Element ..................... or Individual Unit Price $ Terminal End Section... ............... ......... ............. ... Jndividual Unit Price $ 4-Z Pressure Treated Posts w/Concretefootings ............ Individual Unit Price = $ Metal Posts, ............... : ....... ................................... Individual Unit Price $ /�;'o ( *Pricing shall include all installation accessories , eA bolts, nuts and other fittings) Repair Damage to Guardrail Scenario Described Above* ............ * ............. :]_S; = $174.f-` (TO BE INCLUDED WITH BID PACKAGE) 2 of 16 EXHIBIT A-1 25A -13 CITY OF SANTA ANA ANNUAL CITY GUARDRAIL, CHAIN. LINK FENCE, BLOCK WALL AND TRAFFIC BOLLARD REPAIR CONTRACT FISCAL YEAR 2010 -2011 BID &'CONTRACT AGREEMENT TYPICAL REPAIR SCENARIOS (cont.) For bidding purposed please provide prices for the repair work described below. D. TRAFFIC BOLLARDS An automobile has damaged a steel traffic bollard located at the northeast corner of Bristol Street and St. Andrew Place. Please prepare a lump sum bid for its repair based on the following items: 1. Remove & dispose of all damaged material including steel post and concrete footing. 2. Furnish and install new 51 x 6 -5/8" diameter galvanized steel post in 18" square x 6" deep concrete footing (See drawing below). includes end cap and steel eyebolt. Repair damage to traffic bollard described above ........ .............................LS = $ 1 5' L x 6 -5/8" Dia. Galy. Stl: Post with tack - welded cap and eyebolt New 18" square x 6" deep concrete footing (Sawcut) NEW TRAFFIC BOLLARD Not to Scale TYPICAL REPAIR SCENARIOS A +B +C +D NAME: TOTAL .BID: $ 46� Z/ . 61 ADDRESS: _ I"yl • - j` TELEPHONE/FAX 71 -V -- -AV �:_i l _Ae 7_ e? AIV/ (TO BE INCLUDED WITH BID PACKAGE) 3 of 16 EXHIBIT A -1 25A -14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: THIRD AND FINAL AMENDMENT TO AGREEMENTS FOR ON -CALL ENGINEERING SERVICES FOR WATER AND SEWER PROJECTS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1St Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a third amendment to the agreements with Tetra Tech, Inc. and Psomas, Inc. for water and sewer engineering services in the amount of $200,000 for each firm, for total contract amounts not to exceed $900,000. DISCUSSION On July 17, 2006, City Council awarded contracts to Psomas, Inc. and Tetra Tech, Inc. to perform water and sewer engineering services on an "as needed" basis. Each contract was for $300,000. On November 17, 2008, City Council approved the first amendment to each contract for $200,000. On February 1, 2010, City Council approved the second amendment to each contract for $200,000 bringing the total contract amount to $700,000 for each firm. As a result of these agreements, the City has completed design and is in the process of constructing improvements that include water and sewer main improvement projects, reservoir rehabilitation, pump station upgrades, and recycled water conversion projects. Staff recommends that each contract be increased by $200,000 for a total not -to- exceed amount of $900,000 for each firm. Both these firms have done an excellent job and have responded quickly and effectively to the City's needs. ENVIRONMENTAL IMPACTS There is no environmental impact associated with this action. 25B -1 Third and Final Amendment to Agreements for On -Call Engineering Services for Water and Sewer Projects April 18, 2011 Page 2 FISCAL IMPACT Funds are available in the Water Utility Capital Projects Account (accounting unit 06617647- 66301) and Sanitary Sewer Services Account (accounting unit 05617640- 66220). APPROVED AS TO FUNDS AND ACCOUNTS: Rau odinez II Francisco Gutierrez �46 Executive Directory Executive Director Public Works Agency Finance & Management Services Agency RGAB Exhibits: 1. Agreements EXHIBIT 1 Agreements W-:151 25B -4 THIRD AMENDMENT TO AGREEMENT THIS THIRD AMENDMENT TO AGREEMENT is entered into on April 18, 2011, by and between Tetra Tech, Inc., a Delaware corporation ( "Consultant ") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City "). RECITALS: A. The parties entered into that certain Agreement A- 2006 -177, dated July 17, 2006, (hereinafter "said Agreement ") by which Consultant has provided engineering services. B. By Amendments dated November 17, 2008 and February 1, 2010, the parties agreed to increase compensation available to allow Consultant to continue to provide services. C. In accordance with the terms and conditions of said Agreement, the parties wish to again increase available compensation to allow continued provision of services. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Third Amendment to Agreement, the parties agree as follows: 1. Section 3, COMPENSATION, shall be amended to increase compensation by $200,000.00, to pay for additional services, as set forth in Exhibit A to said Agreement. The total amount available for services shall not exceed $900,000.00. 2. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to Agreement on the date and year first written above. ATTEST: CITY OF SANTA ANA Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph Straka, Interim City Attorney RECOMMENDED FOR APPROVAL: Raul Godinez II Executive Director - PWA DAVID N. REAM City Manager TETRA TECH, INC. TOM EPPERSON, P.E. Divisional Vice President 25B -5 I � �� THIRD AMENDMENT TO AGREEMENT THIS THIRD AMENDMENT TO AGREEMENT is entered into on April 18, 2011, by and between Psomas, Inc., a California corporation ( "Consultant ") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City "). RECITALS: A. The City and Psomas entered into that certain Agreement A- 2006 -178, dated July 17, 2006, (hereinafter "said Agreement ") by which Consultant has provided water and sewer engineering services. B. By Amendment dated November 17, 2008 and Second Amendment dated February 1, 2010, the parties agreed to add compensation to provide for the continuation of services. C. In accordance with the terms and conditions of said Agreement, the parties wish to again increase available compensation to allow continued provision of services by Consultant. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Third Amendment to Agreement, the parties agree as follows: 1. Section 3, COMPENSATION, shall be amended to increase compensation by $200,000.00, to pay for additional services, as set forth in Exhibit A to said Agreement. The total amount available for services shall not exceed $900,000.00. 2. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to Agreement on the date and year first written above. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph Straka, Interim City Attorney RECOMMENDED FOR APPROVAL: Raul Godinez, II Executive Director - PWA CITY OF SANTA ANA DAVID N. REAM City Manager PSOMAS, INC. JOSEPH L. BOYLE P.E. Vice President 25B -7 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: SECOND AMENDMENT TO AGREEMENT WITH T & B PLANNING FOR ENVIRONMENTAL IMPACT REPORT FOR THE SAN LORENZO SEWER LIFT STATION (PROJECT NO. 063510) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on V' Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a second amendment to the agreement with T & B Planning in the amount of $40,275 for a total contract amount not to exceed $135,549. DISCUSSION On March 1, 2010, City Council approved a contract with T & B Planning, Inc. to prepare an Environmental Impact Report (EIR) for construction of the San Lorenzo Sewer Lift Station Project (Exhibit 1). The contract was for $87,274 plus a contingency amount of $8,000. Amendment No. 1 was executed in February 2011, authorizing expenditure of the $8,000 contingency. This second amendment provides for additional tasks and budget for services which were not anticipated under the agreement (Exhibit 2). Specifically, it has been determined that the EIR for the project will need to be recirculated for a second 45 -day public review period. This is required in order to address additional comments received just prior to the City Council meeting on February 7, 2011, and to ensure that the EIR will withstand any further legal challenges related to the California Environmental Quality Act. The second amendment amount of $40,275 includes an $8,000 contingency fund in the event additional services are required. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. 25C -1 Environmental Impact Report for the San Lorenzo Sewer Lift Station April 18, 2011 Page 2 FISCAL IMPACT Funds are available in the Sewer Connection Fee Fund (accounting unit 05517660- 66220). APPROVED AS TO FUNDS AND ACCOUNTS: thZA U4 Me IL Raul Godinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG:SW Exhibit 1: Vicinity Map Exhibit 2: Agreement 25C -2 U) WARNER cf) AVE � CENTRAL AVE g w Q o ° z U) °o w''. w cc: U). HEMLOCK WY � Q m ° TO PvE LPN �O�EN AVE SEGERSTROM . NEW �O LIFT STATION o6 ALTON w O U- MACARTHUR AVE J Z (n Q m SUNFLOWER AVE u City Council Agenda Date APRIL 18, 2011 Title: VICINITY MAP EXHIBIT 1 SECOND AMENDMENT TO AGREEMENT T PLANNING FOR EN AL IMPACT REPORT o �s 25C -4 EXHIBIT 2 Agreement 25C -5 SECOND AMENDMENT TO AGREEMENT THIS SECOND AMENDMENT TO AGREEMENT is entered into on April 18, 2011, by and between T &B PLANNING, INC., a California corporation (`Consultant ") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (`City "). RECITALS: A. The parties entered into that certain Agreement A- 2010 -040, dated March 1, 2010, (hereinafter "said Agreement ") by which Consultant has provided an environmental study and related technical reports related to the City's San Lorenzo Sewer Lift Station Project. B. The Project has been contested, requiring the preparation of additional studies and revised environmental review. C. Said Agreement was amended by agreement of the parties dated February 23, 2011, to provide for additional traffic analysis, and increase compensation to pay for those studies. D. In accordance with the terms and conditions of said Agreement, the parties wish to again amend the Scope of Services to provide the additional environmental review services and increase compensation to pay for those additional services. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Second Amendment to Agreement, the parties agree as follows: 1. Section 1, SCOPE OF SERVICES, shall be deleted in its entirety and replaced with the following language: "a. Consultant shall prepare an Environmental Impact Report (EIR), supporting technical studies and all CEQA required notices for the San Lorenzo Sewer Lift Station Project (hereinafter, "Project "), as set forth in Consultant's Proposal dated January 29, 2010, attached as Exhibit A to said Agreement, and incorporated by reference. Consultant shall provide additional traffic analysis on Bristol Street north of Segerstom Avenue, including: 1. Evaluate the potential impact and /or closure temporal restrictions required to avoid an impact associated with the potential closure of one or more lanes on South Bristol Street more than 300 feet north of West Segerstom Avenue. 2. Prepare a supplemental analysis letter summarizing the findings of the supplemental analysis completed in Task 1. 3. Provide up to three (3) hours of Principal time to participate in the ongoing environmental process, including review of materials, discussions with the project team, and / or providing input to the team. c. Consultant shall provide additional alternative site analysis in response to objections to the EIR for the San Lorenzo Sewer Lift Station. 25C -6 d. Consultant shall provide additional services required to prepare, recirculate and respond to comments on a revised Environmental Impact Report, as set forth in Exhibit A -1, attached hereto and incorporated by this reference. e. If additional services /studies are required to complete the Revised EIR, Consultant shall prepare a written Proposal and Fee Schedule setting forth the additional services. The Executive Director of Public Works may, in writing, authorize the additional services proposed by Consultant. 2. Section 4.a., COMPENSATION, shall be amended to increase compensation by $32, 275, to pay for the additional services set forth above. The services will be billed on a time and materials basis with a not to exceed amount for each task, as set forth in Exhibit A -1. An additional $8,000 contingency shall be available for additional services authorized by the City as set forth in Section Le., above. The total compensation pursuant to said Agreement, and Amendments 1 and 2, shall not exceed $135,549.00. Section 5, TERM, shall be amended to extend the term of said Agreement an additional two years, through June 30, 2013. 4. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Agreement on the date and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director - PWA CITY OF SANTA ANA DAVID N. REAM City Manager T &B PLANNING, INC. JOEL MORSE Vice President 25C -7 25C -8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: ACQUISITION OF RIGHT -OF -WAY FOR THE OCTA AT -GRADE RAIL SAFETY ENHANCEMENTS ( PROJECT NO. 091745) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 15' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached acquisition agreements with Orange County Transportation Authority (OCTA) subject to nonsubstantive changes approved by the City Manager and City Attorney, to convey to the City a portion of the property located on Lincoln Avenue between Santa Ana Blvd. and Fruit Street at no charge. DISCUSSION On October 20, 2008, City Council approved a cooperative agreement with the (OCTA for the Grade Crossing Enhancement Program at ten crossings in the city. Improvements include medians, roadway signing and striping, pedestrian gates, and other vehicular gate enhancements. OCTA is the lead agency for this project and the City has a 12 percent share of the costs. The purpose of this program is to enhance railroad safety and to make the streets and roads safer for the community. To install the improvements at the crossing located at Santa Ana Blvd. additional right -of -way is needed from a parcel along Lincoln owned by OCTA (Exhibit 1). OCTA has agreed to grant easements for the additional right -of -way at no charge to the City. ENVIRONMENTAL IMPACT A Notice of Exemption and Categorical Exemption — Class 1 (f): Safety Protection Devices (ER # 2008 -159) has been prepared for the project and is consistent with both of these agreements. 25D -1 Acquisition of Right -of -Way for the OCTA At -Grade Rail Safety Enhancements April 18, 2011 Page 2 FISCAL IMPACT There's no fiscal impact associated with this action. Raul Godinez I Executive Director Public Works Agency RG /SA Exhibit 1: Location map 2: Agreements 25D -2 L Ji w I:D ,z a z J O �U �z J i i I[I1: NP0 APP gP i LEGEND SUBJECT PROPERTY FRUIT STREET EXHIBIT 1 �i i � z i \ i i w Ill I a � J � J D LL SANTA ANA �7CITY COUNCIL TITLE: ACQUISITION OF RIGHT -OF -WAY AGENDA DATE FOR THE OCTA AT -GRADE RAIL SAFETY V APRIL 18, 2011 ENHANCEMENTS (PROJECT NO. 091745) PUBLIC WORKS AGENCY 25D -4 EXHIBIT 2 Agreements 25D -5 o PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY THIS AGREEMENT (hereinafter "PSA "), entered into on --------- , 2011 between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter "City" or "Buyer"), and the Orange County Transportation Authority, a Governmental Agency organized under the Laws of the State of California (hereinafter "Seller "), regardless of number or gender; THEREFORE, for and in consideration of their mutual promises, covenants and agreements, and subject to the terms, conditions and provisions of this PSA, Seller agrees to sell to City, and City agrees to purchase from Seller, a portion of that certain real property (hereinafter "Said Real Property ") legally described and depicted as follows: SEE EXHIBIT "A" — Legal Description and EXHIBIT "B" — Graphical Depiction ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as a portion of No Situs, Santa Ana, Ca) Said purchase and sale of Said Real Property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Conveyance by Seller. Seller agrees to convey Said Real Property to City, by Easement Deed, within thirty (30) days from and after the date on which the City has approved this PSA. 2. Title to be Conveyed. (a) The Seller's interest to the Real Property will be conveyed to City by Seller by Easement Deed as set forth in Exhibit "C" to this PSA. 3. Property Taxes. Real property taxes, if any, on Said Real Property for the fiscal year within which Said Real Property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 and 5081 of the Revenue and Taxation Code of the State of California. All unpaid taxes on Said Real Property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of Said Real Property to City. 4 Payment of Purchase Price. Seller agrees to waive the right to an appraisal and compensation from City. Seller agrees to accept $0.00 from City for the full purchase price for Said Real Property, fixtures & equipment, improvements pertaining to the realty, goodwill (if any), severance damages (if any). City agrees to quitclaim property to Seller if the Said Real Property is no longer needed for project purposes at no expense to Seller. 6. Recordation of Easement Deed. Buyer shall not record the Easement Deed until this PSA is fully- executed by both Seller and City. 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying Said Real Property to City is recorded, quiet and peaceful possession of Said Real Property. 8. Waivers. The waiver by City of any breach of any covenant or agreement herein contained on the part of the Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 25D -7 9. Heirs, Assigns, Successors -in- Interest. This PSA, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective Parties hereto. 10. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 11. Permission to Enter on Premises. It is understood and agreed that for project planning and funding purposes the Seller hereby grants to Buyer and authorized agents or contractors, the right of possession to the area depicted in Exhibit "B" to perform the work described in Paragraph 25. However, said right of possession and use shall not be exercised prior to the Buyer, or Buyer's agent, providing Seller with a 48 -hour prior written notice to perform the construction items listed in Paragraph 25 below. 12. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M -36, P.O. Box 1988, in the City of Santa Ana 92701, County of Orange, State of California. The mailing address of the Seller is: Orange County Transportation Authority ( "OCTA ") 550 S. Main Street P.O. Box 14184 Orange, CA 92863 ATTN: Bill Mock 13. Entire Agreement. It is mutually agreed that the Parties hereto have herein set forth the whole of their Agreement. Performance of this PSA by City shall lay at rest, each, every, and all issue(s) that were raised or could have been raised in connection with the acquisition of Said Real Property by City. 14. Expiration of Agreement. This PSA shall terminate and become unenforceable by any Party if City has not completed the acquisition of Said Real Property and paid the Purchase Price therefore to Seller before September 30, 2011. 15. Indemnity. Seller agrees to indemnify, defend and hold the City 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 Material on, under, in or about, or the transportation of any such materials to or from, the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, 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, pollution, contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to liability created prior to or up to the date this transaction shall close. Seller shall not be responsible for acts or omissions to act post close of this transaction. 16. Modification and Amendment. This PSA may not be modified or amended except in writing signed by the Seller and City. W ee 17. Partial Invalidity. Any provision of this PSA that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this PSA shall have no effect, but all the remaining provisions of this PSA shall remain in full force. 18. Captions. Captions and headings in this PSA, including the title of this PSA, are for convenience only and are not to be considered in construing this PSA. 19, Governing Law. This PSA shall be governed by and construed in accordance with the laws of the State of California. 20. No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this PSA and the meaning of the provisions hereof. The provisions of this PSA shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. 21. No Third Party Beneficiary. This PSA is intended to benefit only the Parties hereto and no other person or entity has or shall acquire any rights hereunder. 22. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this PSA, without cost. 23. Applicability of Agreement To Assionees. This PSA shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties to this PSA. 24. Authority to Execute Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this PSA, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 25. Construction Contract and Curative Work. (a) It is understood and agreed by and between the parties hereto in addition to the compensation shown in Paragraph 2 hereinabove, the Buyer, its contractors or assigns, shall perform the following construction contract items at the time of the installation of the proposed project: Restore property to existing condition. (b) It is understood and agreed by and between the parties hereto that the compensation paid to Seller through this Agreement includes the value of the cost to remove, relocate, reconstruct and /or refurbish the following improvements located on the Property: NONE. 26. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this PSA. / W CPU, IN WITNESS WHEREOF, the Parties hereto have executed this PSA on the date and year first written above. SELLER: 1AI A.L —AIVI Ve Will Kempton Chief Executive Officer Approved as to Forrn: Date: 3 .14 , 1) , 2011 Date: iM 0--g/ , 2011 Kennard R. Smart, Jr. General Counsel CITY /BUYER City of Santa Ana David N. Ream City Manager Attest: Patricia H. Healey City Clerk Approved as to Form: Joseph W. Fletcher City Attorney A-Z-sz - P J andoval Se i r Managing Assistant City Attorney Date: , 2011 Date: 2011 Date: �� , 2011 25D -10 EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, SELLER OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: 25D -11 Coast Surveying, Inc. May 8, 2009 EXHIBIT "A" LEGAL DESCRIPTION STS -PCL -4 THAT PORTION OF THAT CERTAIN RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY'S SAN DIEGO BRANCH IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, LYING WITHIN RANCHO SANTIAGO DE SANTA ANA, SITUATED IN SECTION 7, TOWNSHIP 5 SOUTH, RANGE 9 WEST OF THE SAN BERNARDINO BASE AND MERIDIAN, AS DESCRIBED IN THAT CERTAIN DEED TO CALIFORNIA CENTRAL RAILWAY COMPANY AND THE ATCHISON, TOPEKA AND SANTA FE RAILWAY CO., RECORDED SEPTEMBER 22,1887 IN BOOK 311, PAGE 43 OF DEEDS, IN THE OFFICE OF THE LOS ANGELES COUNTY RECORDER AND AS SHOWN ON RECORD OF SURVEY 95 -1035, FILED IN BOOK 151, PAGES 47 THROUGH 50 OF RECORDS OF SURVEY IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTHEASTERLY RIGHT OF WAY LINE OF SANTA ANA BOULEVARD (104 FEET WIDE) AND THE WEST LINE OF THE LAND DESCRIBED IN SAID RAILROAD DEED; THENCE ALONG SAID SOUTHEASTERLY RIGHT OF WAY LINE NORTH 54 °53'48" EAST 7.72 FEET TO THE EAST LINE OF SAID RAILROAD DEED; THENCE ALONG SAID EASTERLY LINE SOUTH 00 005'16" EAST 62.83 FEET; THENCE NORTH 89 042'46" WEST 7.00 FEET TO SAID WEST LINE OF SAID RAILROAD DEED; THENCE ALONG SAID WEST LINE NORTH 00 005'16" WEST 59.52 FEET TO THE POINT OF BEGINNING. CONTAINING 428 SQUARE FEET, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF. DATED THIS 8TH DAY OF MAY, 2009. ��0 � D 8 ��� (� a, 'V�-1 C vim= c" �CD r GWEN -VERA DEL CASTILLO, PLS 5108 L.S. 5108 REGISTRATION EXPIRES 6!30(09 EXP. 5./30'/09 "r F.CA 25D -12 EXHIBIT "B" Graphical Depiction of Said Real Property & TCE 25D -13 DATE:. 5/05/09 T SCALE:. 17=40 _ COAST SURVEYING; INC. SHEET 1 OF 1 APN 398-- 1503t. PARKWAY LdOP,SUTFE.B ol A TUSTIN, CA 92760 -6527 (7141,916-62.8r, 0 t P.O.B. .r' HAP OF DE 'S AS 0M70H L i [ .&B. 1121 I w 4 ! 2 ! RECORD OF SURVEY 95-1 ON o. R.S.S. 131147-50 T I I 7' WIDE PARCEL o ¢ DEEDED TO RAILROAD o ! PER L.A. DEED 311/43 ! [if I Z. UJ a 2 CL z Z °° ! I > :3 � I � EASEMENT PER OM-- #2DD5000313553 O.R. rn a a- w w REC. 4/25/05 ! tIr 8'r z I z.Q I !. BEARING. DISTANCE r- I P. 1 N64° 53` 4&' E 7, 72' zz - 2 SO()* OS' 16' E 62. 83.' 3. N89° 42' 46' W 7, DO' 1 j 4 NOQ° 05' 16, W 59: 52l j 25' 25' ! P. N'L Y LINE STREET /FRUIT - -- ----------------------------- 0 �- FRUIT STRP:ET DATE:. 5/05/09 T SCALE:. 17=40 _ COAST SURVEYING; INC. SHEET 1 OF 1 APN 398-- 1503t. PARKWAY LdOP,SUTFE.B ol A TUSTIN, CA 92760 -6527 (7141,916-62.8r, EXHIBIT "C Easement Deed 25D -15 When recorded, please mail this instrument and tax statements to: Clerk of the Council City of Santa Ana 20 Civic Center Plaza, M -30 Santa Ana, California 92701 Free recording requested by THE CITY OF SANTA ANA PER GOVERNMENT CODE SECTION 6103. SPACE ABOVE THIS LINE FOR RECORDER'S USE CANCEL TAXES X APPROVED AS TO I FORM BYATTY. APPROVED BY DIRECTOR DESCRIPTION WRITTENBY DESCRIPTION CHECKED -O.K. AP. NUMBER 398 - 207 -02 Nu RAV MAP NUMBER PROJECT NUMBER Portion of No Situs, Santa Ana, CA DEED NUMBER EASEMENT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Orange County Transportation Authority, a Governmental Agency organized under the laws of the State of California Do Hereby Grant to THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California, easement for public right -of -way purposes in, on, over under, and through the real property in the City of Santa Ana, County of Orange, State of California, located at No Situs, Santa Ana, CA, described as follows: SEE EXHIBITS "A" AND "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF; For: Orange County Transportation Authority, a Governmental Agency organized under the Laws of the State of California Dated Will Kempton Chief Executive Officer State of California County of On before me, a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) istare 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 (This area for official notary seal) MAIL TAX STATEMENTS AS DIRECTED ABOVE 25D -16 My- Jai -o PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY THIS AGREEMENT (hereinafter "PSA "), entered into on --------- , 2011 between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter "City" or "Buyer"), and the Orange County Transportation Authority, a public entity, (hereinafter "Seller "), regardless of number or gender; THEREFORE, for and in consideration of their mutual promises, covenants and agreements, and subject to the terms, conditions and provisions of this PSA, Seller agrees to sell to City, and City agrees to purchase from Seller, a portion of that certain real property (hereinafter "Said Real Property ") legally described and depicted as follows: SEE EXHIBIT "A" - Legal Description and EXHIBIT "B" - Graphical Depiction ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as a portion of No Situs, Santa Ana, Ca) Said purchase and sale of Said Real Property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Conveyance by Seller. Seller agrees to convey Said Real Property to City, by Easement Deed, within thirty (30) days from and after the date on which the City has approved this PSA. 2. Title to be Conveyed. (a) The Seller's interest to the Real Property will be conveyed to City by Seller by Easement Deed as set forth in Exhibit "C" to this PSA. 3. Property Taxes. Real property taxes, if any, on Said Real Property for the fiscal year within which Said Real Property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 and 5081 of the Revenue and Taxation Code of the State of California. All unpaid taxes on Said Real Property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of Said Real Property to City. 4 Payment of Purchase Price. Seller agrees to waive the right to an appraisal and compensation from City. Seller agrees to accept $0.00 from City for the full purchase price for Said Real Property, fixtures & equipment, improvements pertaining to the realty, goodwill (if any), severance damages (if any). City agrees to quitclaim property to Seller if the Said Real Property is no longer needed for project purposes at no expense to Seller. 6. Recordation of Easement Deed. Buyer shall not record the Easement Deed until this PSA is fully- executed by both Seller and City. 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying Said Real Property to City is recorded, quiet and peaceful possession of Said Real Property. 8. Waivers. The waiver by City of any breach of any covenant or agreement herein contained on the part of the Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 9. Heirs, Assisans, Successors -in- Interest. This PSA, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective Parties hereto. 25D -17 10. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 11. Permission to Enter on Premises. It is understood and agreed that for project planning and funding purposes the Seller hereby grants to Buyer, and authorized agents or contractors, the right of possession to the area depicted in Exhibit "B" to perform the work described in Paragraph 25. However, said right of possession and use shall not be exercised prior to the Buyer, or Buyer's agent, providing Seller with a 48 -hour prior written notice to perform the construction items listed in Paragraph 25 below. A temporary construction easement has been granted (see Exhibit "D ") for a period of two (2) months from the commencement of construction and terminates at the end of the period or upon recordation of a Notice of Completion, whichever first occurs. Seller shall be given written notice by Buyer or Buyer's agent or Buyer's contractor, or designee, as to the date Buyer requires use of Temporary Construction Easement area for commencement of construction. 12. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M -36, P.O. Box 1988, in the City of Santa Ana 92701, County of Orange, State of California. The mailing address of the Seller is: Orange County Transportation Authority 550 S. Main Street P.O. Box 14184 Orange, CA 92863 ATTN: Bill Mock OC Public Works /Real Estate Services 300 N. Flower Street, 6th Floor Santa Ana, CA 92703 -5000 Facsimile: 714/834 -2870 Reference : Project PM1117 -150, 151 13. Entire Agreement. It is mutually agreed that the Parties hereto have herein set forth the whole of their Agreement. Performance of this PSA by City shall lay at rest, each, every, and all issue(s) that were raised or could have been raised in connection with the acquisition of Said Real Property by City. 14. Ex0ration of Agreement. This PSA shall terminate and become unenforceable by any Party if City has not completed the acquisition of Said Real Property and paid the Purchase Price therefore to Seller before September 30, 2011. 15. Indemnity. Seller agrees to indemnify, defend and hold the City 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 Material on, under, in or about, or the transportation of any such materials to or from, the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, 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, pollution, contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to liability created prior to or tap to the date this transaction shall close. Seller shall not be responsible for acts or omissions to act post close of this transaction. 16. Modification and Amendment. This PSA may not be modified or amended except in writing signed by the Seller and City. W 9 -9 Feee 17. Partial Invalidity. Any provision of this PSA that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this PSA shall have no effect, but all the remaining provisions of this PSA shall remain in full force. 18. Captions. Captions and headings in this PSA, including the title of this PSA, are for convenience only and are not to be considered in construing this PSA. 19. Governing Law. This PSA shall be governed by and construed in accordance with the laws of the State of California. 20. No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this PSA and the meaning of the provisions hereof. The provisions of this PSA shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. 21. No Third Party Beneficiary. This PSA is intended to benefit only the Parties hereto and no other person or entity has or shall acquire any rights hereunder. 22. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this PSA, without cost. 23. Applicability of Agreement To Assignees. This PSA shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties to this PSA. 24. Authority to Execute Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this PSA, and shall indemnify City fully, including reasonable costs and attomey's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 25. Construction Contract and Curative Work. (a) It is understood and agreed by and between the parties hereto in addition to the compensation shown in Paragraph 2 hereinabove, the Buyer, its contractors or assigns, shall perform the following construction contract items at the time of the installation of the proposed project: Restore property to existing condition. (b) It is understood and agreed by and between the parties hereto that the compensation paid to Seller through this Agreement includes the value of the cost to remove, relocate, reconstruct and/or refurbish the following improvements located on the Property: NONE. 26. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this PSA. 2501-19 IN WITNESS WHEREOF, the Parties hereto have executed this PSA on the date and year first written above. SELLER: 4Ak�� Date: 11,4-11 , 2011 Will Kempton Chief Executive Officer Approved as to Form: Date: 1�� -rte. , 2011 Kennard R. Smart, Jr. General Counsel CITY /BUYER City of Santa Ana David N. Ream City Manager Attest: Patricia H. Healey City Clerk Approved as to Form: Joseph W. Fletcher City Attorney /1' Q.)I'Xi - s Sandoval Se V r Managing Assistant City Attorney Date: 12011 Date: 2011 Date: ZJ — 3 _,2011 2501-20 EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, SELLER OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: 25D -21 Coast survayino, Eftc. Aol 15.2606 IISIT 'A° LEGAL DESCRIPTION STS -PCL -3 THOSE PORTIONS CF LOTS B1 AND B2 OF BLOCK °B' III THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CAUFORNI -A, AS PER MAP OF DEAN'S ADDITION TO THE CITY OF SANTA ANA AS SHOWN ON A MAP FILED IN BOOK 1, PAGE 21 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: PARGEL 2 Pwcal PM1117 -151 BEGIAMING•AT THE INTERSECTION[ OF TigE SOUTHEASTERLY RIGHT OF WAY OF SANTA ANNA BOULEVARD (52 FEET HALF WIDTH) AND THE WEST LIME OF DEAN'S ADDITION AS SHOWN ON RECORD OF SURVEY 95 -1035, FILED IN BOOK 151, PAGES 47 -50 OF RECORD,9 OF SURVEY IN THE OFFICE. OF SAID COUNTY RECORDER; THENCE ALONG SAID SOUTHEASTERLY LINE NORTH 64 °53'4$' EAST 8.19 FEET; THENCE SOUTH DO °16'05° WEST 67.33 FEET TO THE NORTHEAST CORNIER OF THE LAND DESCRIBED IN THE EASEMENT DEED TO ORANGE COUNTY TRANSIT AUTHORITY RECORDED APRIL 25, 2005, AS DOCUMENT NO. 2005000313553, OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE ALONG THE FORTH LINE OF SAID DEED NORTH 89°42'46' WEST 7.08 FEEL" TO SAID WEST LINE OF DEWS ADDITION; THENCE ALONG SAID WEST LINE NORTH 00 °01'16" WEST 163.82 FEET TO THE POINT OF BEGINNING. CONTAINING 476 SQUARE FEET, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT 'B° ATTACHED ACHED HERETO AND MADE A DART HEREOF. DATED THIS 3e DAY OF APRIL, 20DB. GWEN✓VERA DEL CASTILLO, PLS 5108 REGISTRATION EXPIRES 6I,QI09 It 1070SM4 Ssnm AMA szs rct -3 LAN( �, DE 0 L.S. 5108 ° t b� EXP_ $/30109 IN 125D -22 f C EXHIBIT "B" Graphical Depiction of Said Real Property & TCE 25D -23 i i E 1 � w If z it �l PARCEL. 2 MAP OF ®FAMI 'S ADDIY�ON RECORD OF SURVEY W Oro HAS. I ST/47-50 T EASEMENT PER L A. DEED 311 /43 1fir as EXH[BII�,r COAST SURVErNG, INC. 1 "9 40 _ R t GN T OF 'NA-Y 1 sort �aTwaX ca ❑p surer g G7 hfA1 Of Jt FTFR 'n N d U a a c� m 0 J d m 0 Ir 0 J a a 0 0 i N i f I - EASEMENT z� IY� w I I J¢ w w I f Q Ln f =< a� I I 10 I W Z I DEARINCB DISTANCE 1fir as EXH[BII�,r COAST SURVErNG, INC. 1 "9 40 _ R t GN T OF 'NA-Y 1 sort �aTwaX ca ❑p surer g G7 hfA1 Of Jt FTFR 'n N d U a a c� m 0 J d m 0 Ir 0 J a a 0 0 i N i °r I - EASEMENT I J¢ w w I f PER DOC. #2005000313553 O.R. REC. 4/25/05 Ln CL I i ui DEARINCB DISTANCE I SG4° 53` 48° W 8, 19' I I I I 2 SOC' 01' 16° E 63. 82' i I 3 S89°' 42' 46'E 7, 08' 4 NOD° 16' 05° E 67, 33' 25' 25' i WILY LINE ! I 11 IT STREET ----------------- - - - - -- FRUIT STREET — J 1fir as EXH[BII�,r COAST SURVErNG, INC. 1 "9 40 _ R t GN T OF 'NA-Y 1 sort �aTwaX ca ❑p surer g G7 hfA1 Of Jt FTFR 'n N d U a a c� m 0 J d m 0 Ir 0 J a a 0 0 i N i i � I � T. P.O. B. I � IP.O.C. ` �1 v Ld I zl W I I Q 2 1 z I1 i Z o l IQ IQ I { I ) I I z a W Y I =Q cz �m I I ? J ¢ cn I i w Lu I Qzz I 1 I I I I I I 25' I I I 25' I I 1 I LL HAP OF BFUAIMS A00370wi H.S.S. `i AAI 5' 7' EASEMENT PER L.A. DEED 311/43 fr�AMI 151/4" ff. BEARING 1 S64' 53' 48' W 2 N00° 16' 05' E 3 S89'42' 46'E 4 N00° 16' 05' E 5 S64° 53' 48' W EASEMENT PER DOC. #2005000313553 O.R. REC_ 4/25/05 WILY LINE FRUIT STREET ° FRUIT STREET DISTANCE 8. 19' .6 7. 33' 5. CO' 69. 71' 5. 53' JOB #: 107 -069 DATE: 4 16 08 COAST SURVEYING, INC SCALE: 1 "�4o TEMPORARY CONSTRUCTION C 15031 PARKWAY LOOP, SUTI s . SHEET 1 OF 1 ` TUSTIN, OA 92780 -6527 (714) 913-6266 3 'U Lu W r N N r N O U V Lo O J a 0 i r- 6 N d 0 r, n 0 iV .N. N �o ii �o EXHIBIT "C" Easement Deed 25D -26 When recorded, please mail this instrument and tax statements to: Clerk of the Council City of Santa Ana 20 Civic Center Plaza, M -30 Santa Ana, California 92701 Free recording requested by THE CITY OF SANTA ANA PER GOVERNMENT CODE SECTION 6103. SPACE ABOVE THIS LINE FOR RECORDER'S USE CANCEL APPROVED AS TO TAXES FORM BY A1TY. X APPROVED BY DESCRIPTION DIRECTOR WRITTEN BY DESCRIPTION cI-rECxED- o.x.rfgER Ay. 39$- Z07 -Ol RNV MAP NunBER PROJECT NUMBER Portion of No Situs, Santa Ana, CA DEED NUMBER EASEMENT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Orange County Transportation Authority, a public entity Do Hereby Grant to THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California, easement for public right -of -way purposes in, on, over under, and through the real property in the City of Santa Ana, County of Orange, State of California, located at No Situs, Santa Ana, CA, described as follows. SEE EXHIBITS "A" AND "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF; Orange County Transportation Authority, a public entity Dated Will Kempton Chief Executive Officer State of California County of On before me, a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her /their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seat. Signature (This area for official notary seal) MAIL TAX STATEMENTS AS DIRECTED ABOVE 25D -27 EXHIBIT "D" Temporary Construction Easement granted by the County of Orange to the Orange County Transportation Agency �r��!b;� RECQRDING REQUESTED BY: County of orange OC Public Works — Real Estate Services 300 N Flower Street, 6t' Floor Santa Ana, CA 92703 -5000 WHEN RECORDED MAIL TO: MAIL TAX STATEMENTS TO: Orange County Transportation Authority 550 S. Main Street P.O. Box 14184 Orange, CA 92863 -1584 This is to certify that this document is exempt from recording fees per Govt. Code Sec. 27383 and is exempt from Document Transfer Tax per Rev. & Taxation Code Sec. 11922. By: " " 11 "` 0 County of Otvange Recorded in Official Records, Orange County 1111111" N1111011111111IfI III P11IIIN111111111 NO FEE 2010000233994 1:47 pm 05/18/10 109 4151501 A04 B 0.00 0.00 0.00 0.00 16.00 0.00 0.00 0.00 SPACE ABOVE THIS LINE FOR RECORDERS USE Z Incorporated, City of Santa Ana Parcel No: PM 1117-152 Project: Fruit Street Complex G01ZREG'rCatj - r-EMf'oVLA9tJ GAI;CME►'JT `EED THIS DOCUMENT, PREVIOUSLY RECORDED IN THE COUNTY OF ORANGE AS DOCUMENT NUMBER 2009000373281, IS BEING RE- RECORDED FOR THE PURPOSE OF: OREMOVING AN ERRONEOUSLY INCLUDED PAGE TO THE TEMPORARY EASEMENT DEED; AND ,REMOVING AND REPLACING THE INCORRECT SIGNATURE PAGE OF THE TEMPORARY EASEMENT DEED. /CORRECTING THE LEGAL DESCRIPTION WHICH IS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A" AND CORRECTING THE DEPICTION OF PARCEL PM1117 -152, ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "B "; AND 25D -29 G� NF RECORDED AT REQUEST OF: WHEN RECORDED MAIL TO: Orange County Transportation Authority 550 S. Main Street P.O. Box 14184 Orange, CA 92863 -1584 Recorded in Official Records, Orange County Tom Daly, Clerk- Recorder 111111 111 111111111111111111 NO FEE 200900037328112:19pm 07114/09 111 200 E01 7 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 SPACE ABOVE THIS LINE FOR RECORDER'S USE This is to certify that this documejds-ec., is a empt from recording fees per Gavt Co 27383 and is exempt from Docuikent Tr sfer ax per Rev. & Taxatio Code 57 c. 119,21. I r i f } ❑ Unincorporated Area By: ® Incorporated, City of Santa Ana Orange County Transports on Authority Project/Parcel No: PM1117 -152 Project: Fruit Street Complex TEMPORARY EASEMENT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby aclmowledged, COUNTY OF ORANGE, a political subdivision of the State of California, ( "GRANTOR"), does hereby GRANT to ORANGE COUNTY TRANSPORTATION AUTHORITY, a public entity ( "OCTA "), a temporary construction easement for construction over and across the real property (Parcel PM1117 -152) in the City of Santa Ana, County of Orange, State of California, together with the right to excavate, fill or regrade said parcel; to enter upon, to pass and repass over and along said parcel and to place and/or store tools, vehicles, storage containers, implements and other construction related equipment and materials thereon by OCTA, its officers, agents and employees, and by persons under contract with it and their employees, whenever and wherever necessary for the purposes above set forth. Said real property in the County of Orange, State of California is described as: (See Exhibit "A" for legal description and Exhibit `B" for depiction of Parcel PM117 -152, attached hereto and made a part hereof.) The temporary construction easement herein granted shall be for a period of two (2) months from the commencement of construction and terminate at the end of the period or upon recordation of a Notice of Completion, whichever first occurs. GRANTOR shall be given written notice by OCTA, or designee, as to the date OCTA requires use of Parcel PM 117 -152 for commencement of construction. Nothing in this Deed is intended nor shall anything in this Deed be construed to transfer to OCTA or its successors or assigns or to relieve GRANTOR or its successors or assigns or predecessors in title of any responsibility Dr liability GRANTOR or its successors or assigns or predecessors in title now has, has had or comes to have with respect to human health or the environment, including but not limited to responsibility or liability relating to hazardous or toxic substances or materials (as such terms as those used in this sentence are defined by statute, ordinance, case law, governmental regulation or other provision of the law). Furthermore, OCTA may exercise its rights under law to bring action, if necessary, to recover clean up costs and penalties paid, if any, from GRANTOR or any others who are ultimately determined by a court of competent jurisdiction and/or a Federal, state WOBY or local regulatory or administrative governmental agency or body having jurisdiction, to have responsibility for said hazardous toxic substances or materials upon, within, or under the real property interests transferred pursuant to this Deed. Notwithstanding the forgoing, OCTA shall be and remain liable for any hazardous or toxic substances or materials which become located, because of OCTA's operations, upon, within, or under the real property interests transferred pursuant to this Deed. Dated b-16-69f SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIR OF THE BOARD ATTES J .ene J. Bloom` Clerk of the Board of Supervisors Orange County, California COUNTY OF By: Ch , Board of Supervisors fir;, off. U = w i)1 1CT Approved as to form: County C nsel B y Date: D puty ACKNOWLEDGMENT STATE OF CALIFORNIA ) )ss. COUNTY OF ORANGE ) On J uNE . 1 2009, before me R-Wr�F—N Pr(aU► t-PI R a Notary Public in and for said State, personally appeared S QS AN N_ o V N K personally known to me (or proved to me on the basis of satisfactory evidence) to be the personaaj whose name(R5 is /are subscribed to the within instrument and acknowledged to me that ke/she/tkrey executed the same in His/her /Uwir authorized capacitykies), and that by his/her /their signature(*) on the instrument the person;aj, or the entity upon behalf of which the person(*) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seas. Signature 25D -31 Coast Surveying, Inc. April 17, 2008 EXHIBIT "A" LEGAL DESCRIPTION STS -PCL -3 TEMPORARY CONSTRUCTION EASEMENT Parcel PM1117.152 THOSE PORTIONS OF LOTS B1 AND B2 OF BLOCK "B" IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP OF DEAN'S ADDITION TO THE CITY OF SANTA ANA AS SHOWN ON A MAP FILED IN BOOK 1, PAGE 21 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE SOUTHEASTERLY RIGHT OF WAY OF SANTA ANA BOULEVARD (52 FEET HALF WIDTH) AND THE WEST LINE OF DEAN'S ADDITION AS SHOWN ON RECORD OF SURVEY 95 -1035, FILED IN BOOK 151, PAGES 47- 50 OF RECORDS OF SURVEY IN THE OFFICE OF SAID COUNTY RECORDER; THENCE ALONG SAID SOUTHEASTERLY LIME NORTH 64 053'48" EAST 8.19 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID SOUTHEAST LINE NORTH 64 053'48' EAST 5.53 FEET; THENCE SOUTH 00 °16'05" WEST 69.71 FEET; THENCE NORTH 89 042'46" WEST 5.00 FEET; THENCE NORTH 00 °16'05" EAST 67.33 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 343 SQUARE FEET, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT 'B" ATTACHED HERETO AND MADE A PART HEREOF. DATED THIS 17'h DAY OF APRIL, 2008. L AND DEL GWEN -VERA DEL CASTILLO, PLS 5108 L.S. 5108 0 REGISTRATION EXPIRES 6/30109 EXP. 6/30/09/ C JN 107061-04 Santa Ana STS - FCC.. -3'TCE 1 25D -32 / / T. P. 0. B. 5 I / J P.O.C. Ld rl l PER L.A. DEED 311/43 I DISTANCE I o [I 48' W 8. 19' 2 N00" 16' I a (' o I 3 S89' 42' I �► � z I I Ix° I Lj ui ='a o- I 48' W 5.53' I o�l? w u; z U JzQ rr_ cn I I En oc� < w I I CL I 1 I Lu Q I I II I I I I I 25' II I 25' I I I 1 I L. JOB i DATE: 5' MAP (OF BERMS ADOffd ®lI RECORD OF SURY, E-Y W Cass [R.19.- 15914ff -so 7' EASEMENT PER L.A. DEED 311/43 BEARING DISTANCE 1 S64.53' 48' W 8. 19' 2 N00" 16' 05' E 67. 33' 3 S89' 42' 46' E 5,00' 4 N00° L6' 05' E 69, 71' 5 S64° 53' 48' W 5.53' EASEMENT PER DOC. ##2005000313553 O.R. REC. 4/25/05 WILY LINE FRUIT STREET O ; -4O TEMPORARY CONSTRUCTION FRUIT STREET_ COAST SURVEYING, INC. 15031 PARKWAY LOOP, SUITE B niR.�l !`A e7 >nIf_FC» 71 A\ O�O_F7 YC. 0 v, 1 I �° i i:: Ul I?p I : t a j•} C. . c ;{ N N i U tD J I i o I;i all N °' v CL ##r :E r CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by Quitclaim Deed from County of Orange a political subdivision of the State of California, to the ORANGE COUNTY TRANSPORTATION AUTHRORITY, a public entity ( "OCTA "), is hereby accepted in accordance with the terms by the undersigned officer on behalf of the Board of Directors of OCTA, and OCTA consents to recording thereof by its duly authorized officer. ORANGE COUNTY TRANSPORTATION AUTHORITY, a public entity By: � U�' Arthur T. Leahy, Chief Executive Officer QC -OCTA Quitclaim Deed 25D-34 2/10/2009 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: AGREEMENT FOR A COMPUTER AIDED DISPATCH SYSTEM MAINTENANCE CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with TriTech Software Systems for maintenance support to the Fire Department's computer aided dispatch system in an amount not to exceed $120,844 for a one year period, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Fire Department's Computer Aided Dispatch (CAD) system was upgraded in September 2006. TriTech Software Systems is provider of this service, and provides maintenance to their proprietary hardware, software, and software interfaces. The system provides for the dispatching of emergency vehicles and the transfer of data to mobile data computers (MDC) located in these vehicles. Because of the proprietary nature of the equipment and software, the Fire Department is recommending entering into an agreement with TriTech to provide maintenance to the department's CAD system. FISCAL IMPACT Funds are available in the FY 2010/11 Fire Department's Information Technology, Other Contract Services - Professional account (AU /Acct no. 0111534062300) in the amount of $120,844. David Thomas Fire Chief Fire Department APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency.. J 25E -1 25E -2 SOFTWARE SYSTEMS March 9, 2011 Santa Ana Fire Communications Attn. Dave Turner /Amanda Laser 120 W. Walnut Santa Ana, CA. 92701 Renewal of Software Support Agreement This letter is an important notice to renew your Software Support Agreement for your TriTech Software System, which will expire on May 31, 2011. The renewal of the Software Support Agreement will allow you to continue to take advantage of the software support and maintenance services provided by TriTech Software Systems and allow you to receive upgrades to your TriTech System. Please complete and sign this Support Renewal Agreement and return it to TriTech along with your payment to assure uninterrupted software support and maintenance services coverage. Action on this Support Renewal Agreement is time sensitive; services to support your system will not be provided if you have not paid your Support Renewal Fee by the Expiration date of your Software Support Agreement. TriTech Support Services Renewal Agreement Amendment Client agrees to renew its Software Support Agreement, the terms of which are incorporated by reference herein as though set forth in full, and according to the terms and conditions included herein. Except as modified herein, all other terms and conditions of the Software Support Agreement shall remain in full force and effect With respect to the content herein, in the event of any conflict between this Software Support Renewal Agreement Amendment and the Software Support Agreement, the terms of this Software Support Renewal Agreement Amendment shall control. This Support Renewal Agreement Amendment and applicable support fees must be signed, paid and returned by June 1, 2011 to avoid any interruptions in the software support and maintenance services provided by TriTech. Payment of $120,843.75 for this period is due by .tune 1, 2011. Consumer Price Index Adjustment For support renewals that go into effect within calendar year 2011, the support renewal fee has been increased by the consumer price index (CPI) rate of 1.6 %. Note: Escrow, ESRI and GDT Fees are calculated separately and added to your annual support fee. Payment For your convenience, we have enclosed an invoice for the full amount of the TriTech Support Services Renewal Fees covering period beginning June 1, 2011 -May 31, 2012. If you have any questions, please contact Diana Sliwicki or your Client Account Manager at 858- 799 -7000. 9860 Mesa Rim Road San Diego, CA 92121 858.799.7000 FAX: 858.799.7010 25E -3 The Support Renewal Agreement for TriTech Support Services is based upon the following TriTech Software licenses. QU of Santa Ana Fire # of Cost per Total SupportTerm Product N2sne Z Licenses Iiecase LicenseCost 6/1/11 - 5/31/12 Old licenses VisiCAD FWE-MS Server 56� 4VA"W -47-,.*ow �K VisiCAD Fire /FTvIS Workstation � � 29,600.00 148,000.00 E911 Interface Software 278.76 Interface Software 4,500.00 00. 964.95 SIMMS Radio Interface Software i 14,000.00 14,000.00 3,00106 --FO-000() 45,0 Enhancement for SIMMS H Interface Software 45,000.00 9,649A9 CAD to Station Printer Software 1 5 1,340.21 - Pro A Interface Software 1 11,600.00 11,600.00 2,487.42 VisiCAD Fire RMS Interface- Software 1 20'(0.00 20,000.00 4,288.66 New Licenses from 3357 yi� ickest_kl!th Dis itch 1 25.,000.00 25,000,00 6,072.07 GISLinkjJ (itity!L" License __.15, .W 15,000,W 3,643.24 VisiCAD Gtoffic Cross Reference (Fount 1 4500.00 2,50D 00 607.21 Dispatch Rules Module 1 2,--00.00 2,500.00 60721 VisiCAd SOP Module 1 7500.00 7,500.00 5,000.00 1,214.41 VisiCAD Advanced Tirners Module Vls,&J-B"row-ser I 25,!-z50.00 25,350.00 6,.157.07 VisiCAD TesvrraiPirr?' Servers nse I 10,000.00 10,000.00 2,428.83 Test/Training Us SW License 1 3,00.00 -"-2--8,000.00 728.65 Qnstorn Station Ale rtin gInterface —interface 1 28,000.00 6,800.71 0.00 0.00 WiNet M- o—bile —to- CAD 1 0.00 Vis�Net Mobile Server 1 1S 00000 15000.00 3,643.2 VoNlet Mobile Mapping Server 5,060.66 1, 214.41 - --- VisiNet Mobile Base Client License jbj 35 500.00 17,500.00 4,250.45 VisiNet Mobile Mapping Ucense w1AVL 300.00 10,500.00 2,550.27 VLsiCAD, Controlling Dispatexber Module 1 5,000.00 5,000.00 0.00 Archive and Reporting Server 1 18,500.00 18,g7", 5 00 4,493.33 Standard VisiCAD Advanced CAD to CAD Interface Ucense 15WOOt i0o. 38,! 00.00 2,500.00 556.05 Unit Swap Total S upport 12eaewal Fee,: 119,965.75 i ESRI Fees 128.00 i F_scrowFeci 750.00 Total Adjusted Support Renewal Fee 120,843.75 j NOTES: _JPqn1L35 installed as of March 10. 45 total y urohased ESRI Fees 6 User licenses and 2 G(S Link (al $16.00 each 25E-4 IN WITNESS WHEREOF, the Parties have executed this Renewal of Software Support Agreement on May 2, 2011. CITY OF SANTA ANA TRITECH SOFTWARE SYSTEMS DAVID N. REAM BLAKE CLARK City Manager CFO ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph Straka Interim City Attorney By: Melissa M. Crosthwaite Deputy City Attorney 25E -5 TRrMCH Mr--fWARE SYSTEMS Post OMW Box #671392 Dallas, TX 75267-1392 (858) 7997000 City of Santa Ana Fire Dept Attn. Bill Watson 1439 S. Broadway Santa Ana CA 92707 INVOICE Ship To: City of Santa Ana Fire Dept Attn. Bill Watson 1439 S. Broadway Santa Ana CA 92707 17826 "mmv m VISA c 25E-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: AMEND CHAPTER 5 OF SANTA ANA MUNICIPAL CODE REGARDING CARE, TREATMENT AND ASSESSMENT OF DOGS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1St Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt an ordinance amending Chapter 5 of the Santa Ana Municipal Code to change the procedure utilized by Santa Ana Police Department Animal Control Division regarding potentially vicious dogs and the safety of animals. DISCUSSION The adoption of this ordinance will revise the language in Chapter 5 of the Santa Ana Municipal Code as follows: 1. Sections 5 -74 and 5 -75 are deleted and moved to existing section 5 -59 and new section 5- 59.1. These revisions make the language that is currently applicable only to noisy dogs applicable to all noisy animals. 2. Section 5 -62 is amended to clarify that commercial kennels are not allowed in residential zones. 3. Section 5 -72 creates a new process for dealing with potentially vicious dogs in line with the procedures utilized by the County. State code allows the City to create whatever process it wants, so long as it is as restrictive, if not more restrictive, than the state code. 4. Section 5 -72.1 is added to define potentially dangerous and vicious dogs. 5. Section 5- 76(d)(2) is amended to set a maximum length of time for tethering an animal from "reasonably necessary" to no more than 3 hours in a 24 hour period. 6. Section 5 -76(e) is added to make it unlawful to leave any animal stranded alone in a parked vehicle in such a way to endanger the animal's health. FISCAL IMPACT The:e is no fiscal impact associated with this action. Paul M. Walters Chief of Police Police Department 5OA -1 �{�7. (ROH xx/xx/xx) ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAP -TER 5 OF THE SANTA ANA MUNICIPAL CODE. REGARDIN.Q . THE CARE, TREATMENT, AND ASSFSSMENT OF DOGS THE CITY COUNCIL 01F THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The Citv Council of the City of Santa Ana hereby finds, determines and declares as follows: A. [Animal Control Findings] B. The Request for Council Action for this ordinance dated shall by this reference be incorporated herein, and together with this ordinance, any amendments or supplements and the oral testimony before the City Council at this meeting, shall additionally constitute the necessary findings for this ordinance. C. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of Section 418 of the City Charter.! Any such restatement of existing provisions of the Code is not, gje.nded, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 2. Section 5 -59 of Chapter 5 of the Santa Ana Municipal Code is amended to read as follows (new language underlined, deleted language in strikeout for tracking purposes only): Sec. 5 -59. Noisy animals. It is hereby declared to be a nuisance for any person to keep, maintain or permit on any lot, parcel of land, or premises under his /her control any dog GF other animal, including a barking dog as defined in section 5 -1(g) within the city limits which is in the habit of either disturbing the peace and quiet of any person within the city or interfering with any person in the reasonable and comfortable enjoyment of life or property. Every day a violation exists shall be regarded as a new and separate offense Ordinance No. NS -XXX Page 1 of _ Section 3. Section 5 -59.1 of Chapter 5 of the Santa Ana Municipal Code is added to read as follows: Sec. 5 -59.1. Enforcement —Noisy Animals. (a) Any enforcement officer has the authority to issue an administrative citation pursuant to the procedures set forth in sections 1- 21.1 - -1 -21.9 of this Code to any responsible person for a noisy animal, including a barking dog, violation that the enforcement officer did not see or hear based upon a complaint signed under penalty of perjury lodged by a member of the community who has been disturbed by the noisy animal or barking dog. All noisy animal or barking dog - complaints shall be lodged with the Santa Ana Police Department. (b) Prior to issuing the administrative citation to the responsible person the enforcement officer shall send a warning notice via first class mail or shall personally serve upon the responsible person a warning notice giving the responsible person ten (10) days from the date of mailing or date of personal service in which to abate the public nuisance caused by the noisy animal or barking dog. (c) The administrative citation shall contain the information set forth in section 1- 21.5 of this Code. (d) The responsible ,person shall have the right to ``appeal the administrative citation as set forth in section 1 -21.8 of this Code. (e) The procedures established in this section may be in addition to criminal civil or any other legal remedy established by law which may be pursued to address violations of the municipal code. Section 4. Section 5 -62' of Chapter 5 of the Santa Ana Municipal Code is amended to read as follows (new language underlined, deleted language in strikeout for tracking purposes only): Sec. 5 -62. Commercial kennel requirements. (a) No person shall establish, operate, maintain or have a commercial kennel within the city without an inspection permit. (b) No commercial kennels shall be allowed in any area zoned residential pursuant to chapter 41 of this code. Eb)Lcj Residential structures of one (1) story in height shall maintain a setback of one hundred (100) feet from any preexisting outside kennel runs of a preexisting kennel, Ordinance No. NS -XXX Page 2 of _ and commercial kennels shall also maintain a setback of one hundred (100) feet from any preexisting residential structure. (s)kg� Residential structures of two (2) stories or more in height shall maintain a setback of two hundred (200) feet from any preexisting commercial kennel, and commercial kennels shall also maintain a setback of two hundred (200) feet from any preexisting structure of two (2) or more stories. These provisions will not apply to anyone who erects a residential structure of two (2) stories or more in height or to anyone who erects a commercial kennel if, in erecting the structure or kennel, that person: (1) Provides a barrier that will impair the vision between the kennels and the residential structure to at least the ;same extent as if a two- hundred -foot setback were used, and provides sufficient sound- retardant materials to produce no more than the same decibel level than if a two- hundred -foot setback was maintained. The decibel level shall be measured both at the kennel and at the residential structure; or (2) In the alternative, provides visual and sound standards that, in the opinion of the director of planning and development services, are equal to or greater than those required by, the provisions of (1) above. (d)jq) The residence of a commercial kennel operator or owner shall not be deemed a residential structure as applied in the language of this section. (e)Mf The development and occupation of buildings for human habitation within the distances prescribed above by others than the kennel owner or operator or grantees, directly or indirectly, from or through the kennel _owner or operator following the proper establishment of kennels, shall not render the maintenance of such preexisting kennels unlawful by reason of the diminished separation of the kennel use and the use of buildings for human habitation. (€}L(Il Enforcement. The director of planning and development services shall not approve for issuance any building permit until he has assured himself that the provisions of this section have been met. Section 5. Section 5 -72 of Chapter 5 of the Santa Ana Municipal Code is amended to read as follows (new language underlined, deleted language in strikeout for tracking purposes only): Sec. 5 -72. Visieus --dogs Declaration and possession of vicious or potentially dangerous dog. Ordinance No. NS -XXX Page 3 of _ 5OA -5 a neilGe am I-++-- nat less than two (2) height WhiGh shall GOnta*n the T kRE OF �� VICIOUS 11 1 - l:=ozv- STSWATSM STA Mtmcl LZ ��♦ i a neilGe am I-++-- nat less than two (2) height WhiGh shall GOnta*n the T kRE OF �� VICIOUS 11 1 - l:=ozv- STSWATSM STA Mtmcl LZ Ordinance No. NS -XXX Page 4 of _ *11 be Fnade unless 30 da, e) FaiTur°c -of- any -ow T ` of this sontuan 6ha re h I".. g nc v . . ate_ General Provisions. (1) If the Animal Services Officer or Police Officer has cause to believe that a doq is a "vicious dog or potentially dangerous dog" within the meaning of section 5 -72.1, he or she may tentatively find and declare such doq a "vicious dog or potentially dangerous dog." (2) Upon tentatively finding and declaring that a dog is a "vicious dog or Potentially dangerous dog," the Animal Services Officer or Police Officer shall notify the owner and /or custodian in writing of his or her tentative finding and declaration.` (3) The notice shall inform the owner and /nr ri mtruiinn of ei irh Anry +ho+ he L,oae within ten QU) days of receipt of such notice to contest the tentative finding and declaration. (4) Failure of the owner and /or custodian to request a hearing pursuant tc subsection (a)(3) of this section 'or °failure to comply with the conditions and restrictions of the declaration shall result in the declaration becoming final and may result in the destruction'of the dog (5) The possession or maintenance of a "vicious dog or potentially dangerous dog," or the allowing of any such dog to be in contravention of this division is hereby declared to be a public nuisance The Santa Ana Police Department is hereby authorized and empowered to impound and /or abate any "vicious dog or potentially dangerous dog" independently of any criminal Prosecution or the results thereof by any means reasonably necessary to ensure the health safetv and welfare of the public including but not limited to, the destruction of the dog or by the imposition upon the owner and /or custodian of specific reasonable restrictions and conditions for the maintenance of the dog. The restrictions and conditions may include but are not limited to: a. Obtaining and maintaining liability insurance in the amount of one hundred thousand dollars ($100,000-00) against bodily injury or death Ordinance No. NS -XXX Page 5 of _ 5OA -7 or damage to property and furnishing a certificate or proof of insurance by which the Santa Ana Police Department shall be notified at least ten (10) days prior to cancellation or nonrenewal or, at the owner's or custodian's option the filing with the Santa Ana Police Department of proof of a bond in the amount of one hundred thousand dollars (100,000.00) to be able to respond in damages b_ . Requirements as to size construction and design of the dog's enclosure. C. Location of the dog's residence d. Requirements as to type and method of restraints and /or muzzling of the dog. f. Requirements as to the posting of a warning notice or notices conspicuous to the public warning persons of the presence of a vicious dog. g. Payment of a fee or fees as established by resolution of the City Council to recover the mgtS of PnfnrrRnn thz nrmAcinnc r%f +him r` -A- (b) Notification of Right to Hearing At least five (5) working days prior to impoundment and /or abatement the owner or custodian shall be notified in writing of his or her right to request a hearing in writing to 'determine whether grounds exist for such impoundment and /or abatement If a hearing is requested the impoundment and /or abatement hearing may be held in conjunction with the hearing provided for in subsection (a) of this section. If the owner or custodian requests a hearinq prior to impoundment and /or abatement, no impoundment and /or abatement shall take place pending decision following a hearing except as provided in subsection (c) of this section Pending such impoundment and /or abatement hearing and decision the Santa Ana Police Department may order the owner or. custodian to keep the dog within a substantial enclosure as deemed necessary under the circumstances The Santa Ana Police Department may also order the owner or custodian to post and keep posted upon the premises where such dog is kept under restraint a warning notice pending such impoundment and /or abatement hearing and decision by the Superior Court The form content and display of such notice shall be specified by the Santa Ana Police Department Any hearing under this subsection shall be conducted in accordance with Chapter 3 of this Code Ordinance No. NS -XXX Page 6 of _ (c) Immediate Impoundment When in the opinion of the Animal Services Officer or Police Officer, immediate impoundment is necessary for the preservation of animal or public health safetv or welfare or if the doq has been impounded under other Provisions of this Code or State law, the preimpoundment hearing shall not be required however, the owner or custodian shall be given written notice allowing ten (10) days from receipt of such notice to request in writina an abatement hearing If requested a hearing shall be held within ten (10) workinq days of receipt of the request and the dog shall not be disposed of prior to the decision following such hearing A hearing under this subsection shall be conducted in accordance with Chapter 3 of this Code, except as - - - -- -- 'wl ua J I%JII%JvvlilLA IriLoVl L V, suun nonce no written request for a hearing is received from the owner or custodian the doq in question shall be disposed of under applicable provisions of law. (d) Initial Hearing and Appeal ci - - - -- — — �' `• • •"• ••` -' • •'+ u �. a.l VI I GJIdI IU dl I auaiernent angior im name imposed pursuant to subsection (a)(5) of this section Any such revision to the abatems ue vva t0 a IG 04;1111C; 1 IVUtiC hearing and other procedural requirements as required for imposing an initial abatement and /or impoundment set forth in subsections (b) and (c) of this section (f) Change of Ownership Custody and /or Residence Owners of a vicious dog or potentially dangerous dog who sell or otherwise transfer the ownership custody or residence of the dog shall at least ten (10) days prior to the sale or transfer, inform the Santa Ana Police Department in writing of the name address and telephone number of Ordinance No. NS -XXX Page 7 of _ the new owner, custodian and /or residence and the name and description of the do a. The owner shall, in addition notifv the new owner or custodian in writing of the details of the dog's record, terms and conditions of maintenance and provide the Santa Ana Police Department with a copy thereof containing an acknowledgment by the new owner or custodian of his or her receipt of the original The Santa Ana Police Department shall notify the new owner or custodian in writing of any different or additional restrictions or conditions imposed pursuant to subsection (a)(5) of this section as a result of the change of ownership, custodv or residence The imposition of any such different or additional restrictions or conditions shall be subject to the same notice hearing and other procedural in subsections (b) and (c) of this section �cwaiuu vicious uoo or r- orentnany. uangerous Doa It shall be unlawful for and /or custodian of a dog declared vicious or potentially dangerous pursuant to (a) to fail to comply with any requirements or conditions imposed pursuant to dog shall be seized by the Santa Ana Police Department pending an investigation and may be destroyed. Section 6. Section 5 -72.1 of Chapter 5 of the Santa Ana Municipal Code is added to read as follows: Sec. 5- 72.1. Definitions. (a) Potentially dangerous dog means any of the following: (1) Any dog which, when unprovoked, after two (2) separate documented bites within the prior thirty- six -month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury whether the person and the dog are on or off the property of the owner or custodian of the dog. (2) Any dog which, when unprovoked, bites a person causing any injury less severe than a "severe injury." Severe injury means any physical injury to a human being that results in muscle tears or disfiguring lacerations or requires multiple sutures or corrective or cosmetic surgery. (3) Any dog which, when unprovoked, has killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal, horse, or livestock. Ordinance No. NS -XXX Page 8 of _ (b) Vicious dog means any of the following: (1) Any dog seized as a "fighting animal' under section 599aa of the Penal Code and upon the sustaining of a conviction of the owner or custodian of a fighting animal as set forth in subdivision (a) of Section 597.5 of the Penal Code. (2) Any dog which, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being, whether the person and the dog are on or off the property of the owner or custodian of the dog. (3) Any dog previously determined to be and currently listed as a potentially dangerous dog, which, after its owner or keeper has been notified of this determination, continues the behavior of a "potentially dangerous dog" as set forth above, or is maintained in violation of the conditions and restrictions placed upon the dog as a "potentially dangerous dog." (c) Provided, no dog may be determined to be a vicious dog if any such bite, threat, injury or damage was sustained by a person who, at the time, was committing a willful trespass upon the premises occupied by the owner or custodian of the dog, or was committing or attempting to commit a crime upon the premises occupied by the owner or custodian of the dog, or was teasing, tormenting, abusing or assaulting the dog or who has, in the past, teased, tormented, abused or assaulted the dog. (d) These definitions do not apply to dogs used in military or police work while they are actually performing in that capacity. Section 7 That section 5 -74 of the Santa Ana Municipal Code is hereby deleted in its entirety (new language underlined, deleted language in strikeout for tracking purposes only): Sec. 5 -74. Reserved. Section 8: That section 5 -75 of the Santa Ana Municipal Code is hereby deleted in its entirety (new language underlined, deleted language in strikeout for tracking purposes only): Sec. 5 -75. Reserved. EnfGFGemeRt--l3aFk*nq deg-. Ordinance No. NS -XXX Page 9 of _ 50A -11 Section 9. Section 5 -76 of Chapter 5 of the Santa Ana Municipal Code is amended to read as follows (new language underlined, deleted language in strikeout for tracking purposes only): Sec. 5 -76 Care: and maintenance of dogs. (a) Shelter requirements. It shall be unlawful for any person to keep, house, or maintain any dog outdoors on any premises within the City of Santa Ana unless the dog has access at all times to an enclosed building or a shelter which meets all of the following requirements: (1) It is weatherproof meaning that it keeps the dog dry when it rains and provides sufficient protection from the sun so that the dog will not overheat; (2) It has a floor that is level and dry; (3) It is composed of material that will not result in injury to the dog; (4) It is maintained in a condition that will not result in injury to the dog; (5) It contains bedding material which is kept clean and dry; Ordinance No. NS -XXX Page 10 of _ yTITOK_L (6) It allows the dog easy access in and out; (7) It is cleaned and maintained in a manner designed to insure sanitary conditions, including but not limited to, removal of excrement, removal of urine, and treatment of area for flies, fleas, ticks, and parasites as necessary. (b) Water requirements. It shall be unlawful for any person to keep, house, or maintain any dog on any premises within the City of Santa Ana unless the dog has access at all times to clean and fresh drinking water. (1) If the water is in a container, this container shall be designed, secured, placed and maintained in a manner that prevents tipping and spilling of the water; (2) Water containers shall be kept clean and sanitary, out of the sun, and shall be emptied and refilled regularly with fresh water. (c) Feeding requirements. It shall be unlawful for any person to keep, house, or maintain any dog on any premises within the City of Santa Ana without providing food daily to maintain proper body weight and good general health, The food shall be: (1) Free from contamination; (2) Wholesome, palatable, and of sufficient quality, quantity, and nutritive value to meet the normal daily requirements for the age, size, and breed of the dog; (3) Easily accessible to the dog; (4) Maintained in a sanitary condition. (d) Tethering requirements. It shall be unlawful for any person to tether, fasten, chain, tie, restrain or cause a dog to be fastened, chained, tied or restrained to a house, tree, garage, stake, fence, or other object except in circumstances where all of the following requirements are met: (1) The tethering, fastening, chaining, tying, and restraining is not accomplished by means of using a choke type of collar; (2) The tethering, fastening, chaining, tying or restraining does not 'as^rt lenger shall not exceed three (3) hours in any twenty -four (24) hour period, Ordinance No. NS -XXX Page 11 of _ Alll_d_ ] (3) The length of the tether or implement used to restrain the dog is not less than three (3) times the length of the dog's body measured from the tip of the dog's nose to the end of the dog's tail; (4) The tether or implement used to restrain the dog is free from entanglement; (5) The dog has access to water, food, and shelter as described in this section; (6) The dog is monitored periodically. (e) Leaving in unattended vehicle. It shall be unlawful for any person to leave animal in any standing or parked vehicle in such a way to endanger the animal's ;h, safety or welfare. An animal control officer or police officer is authorized to use )nable force to remove the animal from the vehicle whenever it aooears that the animars neaitn, safety or welfare is or will be endangered if the owner of the vehicle cannot De iocatea after reasonable attempts The animal shall be taken to the shelter or to a veterinarian if the animal is in distress. A written notice bearing the name of the officer removing the animal, a telephone number where the officer can be contracted and the location where the animal may be claimed by the owner shall be attached to the vehicle. Hny person violating mis section shall bear the full cost and 'expense incurred by the city in the care, medical treatment,, impoundment cost and /or disposal of said animal. includina al from and /or damage done to the vehicle fe}Mf Exceptions. These provisions of this section shall not apply to the following: (1) Government agencies; (2) Non- profit animal rescue organizations exempt from taxation under Internal Revenue Code Section 501(c)(3); (3) Humane societies or societies for the prevention of cruelty to animals if incorporated under the provisions of the California Corporations Code Section 10400 and the Nonprofit Public Benefit Corporation Law in Part 2 of the California Corporations Code, beginning at Section 5110; or (4) Permitted dog or cat shows. Section 10. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase Ordinance No. NS -XXX Page 12 of _ 5OA -14 or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of , 2011 Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka, City Attorney By: Ryan O. Hodge, Assistant City Attorney AYES: Councilmembers NOES: ABSTAIN NOT PRESENT Councilmembers:: Councilmembers : Councilmembers 5OA -15 Ordinance No. NS -XXX Page 13 of _ CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa A'na Ordinance No. NS -XXX Page 14 of _ I1_d_[� REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING FY 2010 INTEROPERABLE EMERGENCY COMMUNICATIONS GRANT PROGRAM CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 1200• 17C ❑ As Recommended ❑ As Amended ❑ Ordinance on 15t Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt a resolution authorizing the City Manager or the Chief of Police to execute a grant award agreement with the California Emergency Management Agency for the FY 2010 Interoperable Emergency Communications Grant Program (IECGP) in the amount of $1,972,980. 2. Direct the City Attorney to prepare and authorize the Chief of Police or the City Manager to enter into reimbursement agreements for equipment, services, training, or exercises with cities and counties located in the Southern Planning Area and contractors /consultants providing services and /or goods in conjunction with the FY 2010 IECGP. 3. Approve an Appropriation Adjustment recognizing the FY 2010 Interoperable Emergency Communications Grant Program in the amount of $1,972,980 in revenue account (no. 12514002 - 52001) and appropriate same in the FY 2010 Interoperable Emergency Communications Grant Program expenditure accounts (no. 12514488 - various). DISCUSSION The United States Department of Homeland Security has developed the Interoperable Emergency Communications Grant Program (IECGP). The IECGP provides funds to emergency first responders to improve interoperable emergency communications, including communications in collective response to natural disasters, acts of terrorism, and other man -made disasters. The grant specifically provides funding for the creation of plans, protocols and procedures and to conduct training and exercises. The only eligible sub - grantees for the FY 2010 IECGP local awards are the recognized Urban Area Security Initiative's (UASI) within each of the four planning areas that are determined by the California Statewide Interoperability Executive Committee (CaISIEC). The City of Santa Ana continues to be designated as an Urban Area Core City and will handle grant administrative responsibilities in representing the CaISIEC's Southern Planning Area. 55A -1 Appropriation Adjustment Accepting FY2010 IECGP April 18, 2011 Page 2 Santa Ana will work in collaboration with cities and counties in the Southern Planning Area that include Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura counties to implement complementary plans, protocols and procedures for effective interoperable communications and train and exercise to said strategies. FISCAL IMPACT Approval of the Appropriation Adjustment will increase revenues in the FY 2010 IECGP account (no. 12514002 - 52001) by $1,972,980 and appropriate same in the FY 2010 IECGP expenditure account (no. 12514488 - various). Although this is a reimbursable grant, grantees may elect to draw down funds up to 120 days prior to expenditure /disbursement. Furthermore, approximately $59,189 will be provided to the City of Santa Ana for Management and Administration (M &A) of the grant which includes the funding of salaries for time spent coordinating grant efforts. APPROVED AS TO FUNDS AND ACCOUNTS: i` Paul M. Walters Francisco Gutierrez Chief of Police Executive Director Police Department Finance & Management Services Agency Exhibits: 1. Identification for Funding Letter 2. FY 2010 California Program Guidance 3. Resolution 55A -2 EDMUND G. BROWN JR. GOVERNOR Cal EMA CALIFORNIA EMERGENCY MANAGEMENT AGENCY March 28, 2011 Mr. Enrique Esparza UASI Grant Coordinator 60 Civic Center Plaza Santa Ana, CA 92702 MIKE DAYTON AC °r[NG SECRETARY SUBJECT: IDENTIFICATION FOR FUNDING Fiscal Year (FY) 2010 Interoperable Emergency Communications Grant Program (IECGP) Santa Ana Urban Area Cal EMA ID # 059- 69000, Grant # 2010 -IP -TO -0016 Dear Mr. Esparza: The California Emergency Management Agency (Cal EMA) has identified the grantee named above to receive IECGP funding in the amount of $1,972,980. In order to accomplish this transfer of funds, Cal EMA will need to receive and approve the FY 2010 Financial Management Forms Workbook, grant assurances, and a governing body resolution accepting the funds. Funds awarded under this allocation will be subject to the requirements set forth in the FY 2010 IECGP Federal Guidance and Application Kit. Cal EMA is available to provide technical assistance throughout the entire grant process. For assistance, please contact your Program Representative, Peter Town, at (916) 322 -1503 or Peter. Townla calema.ca.gov. Thank you for your work in protecting California. We look forward to working with you and appreciate your cooperation and support. Sincerely. BRENDAN A. M HY Director of Grants Management 3650 SCHRIEVER AVENUE MATHER, CA 95655 HOMELAND SECURITY, PROP B AND EMERGENCY MANAGEMENT BRANCH (916) 324 -9200 PHONE - (916) 322 -9053 FAX Exhibit 1 55A -3 55A -4 FISCAL YEAR 2010 INTEROPERABLE EMERGENCY COMMUNICATIONS GRANT PROGRAM GUIDANCE AND APPLICATION KIT DECEMBER 2009 Exhibit 2 55A -5 Title of Opportunity: FY 2010 Interoperable Emergency Communications Grant Program ( IECGP) Funding Opportunity Number: DHS- 10 -GPD- 055 - 000 -01 Federal Agency Name: U.S. Department of Homeland Security (DHS) Federal Emergency Management Agency (FEMA) Announcement Type: Initial Dates: Completed applications must be submitted no later than 11:59 p.m. EST, February 12, 2010. Additional overview information: The following are some of the key changes impacting FY 2010 IECGP as compared to last year's program: ■ The period of performance has been extended from 24 months to 36 months ■ The requirement that no more than 50% of total program funds could be used for personnel activities has been removed ■ The use of FEMA preparedness grant funds for maintenance contracts, warranties, repair or replacement costs, upgrades, and user fees are allowable under all active and future grant awards, unless otherwise noted. Please refer to "Other Allowable Costs — Maintenance and Sustainment" in this kit for more information CONTENTS Contents........................................................................................... ..............................1 Part I. FUNDING OPPORTUNITY DESCRIPTION .......................... ............................... 2 Part 11. AWARD INFORMATION ..................................................... ............................... 8 Part 111. ELIGIBILITY INFORMATION ............................................. .............................11 A. Eligible Applicants .................................................... .............................11 B. Restrictions ............................................................... .............................12 Part IV. APPLICATION AND SUBMISSION INFORMATION ......... .............................13 A. Address to Request Application Package .............. .............................13 B. Content and Form of Application ............................ .............................13 C. Submission Dates and Times .................................. .............................14 D. Intergovernmental Review ....................................... .............................14 E. Funding Restrictions ................................................ .............................15 F. Other Submission Requirements .......................... ............................... 23 Part V. APPLICATION REVIEW INFORMATION ......................... ............................... 23 A. Review Criteria ........................................................ ............................... 24 B. Review and Selection Process .............................. ............................... 24 C. Anticipated Announcement and Award Dates ..... ............................... 24 Part VI. AWARD ADMINISTRATION INFORMATION .................... .............................25 A. Notice of Award ...................................................... ............................... 25 B. Administrative and National Policy Requirements ............................. 26 C. Reporting Requirements ........................................ ............................... 35 PartVII. FEMA CONTACTS .......................................................... ............................... 39 Part VIII. OTHER INFORMATION ................................................. ............................... 43 55A -7 PART I. FUNDING OPPORTUNITY DESCRIPTION The Interoperable Emergency Communications Grant Program (IECGP) is a grant program created by the Implementing Recommendations of the 9111 Commission Act of 2007 (Public Law 110 -53), (hereafter referred to as the 9/11 Act). IECGP is administered by the Department of Homeland Security (DHS) through the Federal Emergency Management Agency (FEMA) Grant Programs Directorate (GPD), in partnership with the Office of Emergency Communications (OEC). In Fiscal Year (FY) 2010, $48,000,000 was appropriated for IECGP grants to States and territories by the Department of Homeland Security Act, 2010 (Public Law 111 -83). This package provides the formal grant guidance and application materials needed to apply for funding under IECGP, including IECGP funding allocations, eligibility criteria, and detailed application requirements. The eligible applicants for this grant program are the SAAs of the 56 States and territories. In FY 2010, IECGP provides governance, planning, training and exercise funding to States, territories, and local and tribal governments to carry out initiatives to improve interoperable emergency communications, including communications in collective response to natural disasters, acts of terrorism, and other man -made disasters. All activities proposed under IECGP must be integral to interoperable emergency communications and must be aligned with the goals, objectives, and /or initiatives identified in the grantee's approved Statewide Communication Interoperability Plan (SCIP). If an SAA and Statewide Interoperability Coordinator (SWIG) /SCIP point of contact (POC) certify that it's State or territory has fulfilled such governance, planning, training and exercise objectives, the Program provides the flexibility to purchase interoperable communications equipment with any remaining IECGP funds. IECGP will also advance DHS near -term priorities that are deemed critical to the national vision of improving interoperable emergency communications stated in the National Emergency Communications Plan (NECP), which was delivered to Congress in July 20081. The NECP has established three strategic goals for the Nation: • Goal 1— By 2010, 90 percent of all high -risk urban areas designated within the Urban Areas Security Initiative (UASI) are able to demonstrate response -level emergency communications within 1 hour for routine events involving multiple jurisdictions and agencies. • Goal 2— By 2011, 75 percent of non -UASI jurisdictions are able to demonstrate response -level emergency communications within 1 hour for routine events involving multiple jurisdictions and agencies. ' The NECP is available at: hitp :Givww.dhs.eov /xlibrary /assets, /national emergency communications plan .p i/a A;61 • Goal 3— By 2013, 75 percent of all jurisdictions are able to demonstrate response -level emergency communications within three hours, in the event of a significant incident as outlined in national planning scenarios. In addition, the NECP includes the following milestones as recommended actions for the States to consider as they implement their SCIPs: • Milestone 1: Within 12 months, all States and territories should establish full -time SWICs or equivalent positions. • Milestone 2: Within 12 months, Statewide Interoperability Governing Bodies (SIGB) or their equivalents, in all 56 States and territories should incorporate the recommended membership as outlined in the SCIP Guidebook and should be established via legislation or executive order by an individual State's governor. • Milestone 3: Within 12 months, tactical planning among Federal, State, local, and tribal governments occurs at the regional interstate level. • Milestone 4: Within 12 months, all IECGP investments are coordinated with the SWIC and Statewide Interoperability Governing Body (SIGB), or its equivalent, to support State administrative agency investments including the filling of gaps as identified in the NECP and SCIPs. • Milestone 5: Within 12 months, all Federal, State, local, and tribal emergency response providers within UASI jurisdictions have implemented the Communications and Information Management section of the National Incident Management System (NIMS). • Milestone 6: Within 18 months, DHS develops training and technical assistance programs for the National Interoperability Field Operations Guide (NIFOG) and programs an appropriate set of frequency- band - specific nationwide interoperability channels into emergency response radios that are manufactured or purchased through Federal funding as a standard requirement. • Milestone 7: Within 24 months, all SCIPs reflect plans to eliminate coded substitutions throughout the Incident Command System (ICS), and agencies incorporate the use of existing nationwide inte rope rability channels into Standard Operating Procedures (SOP), training, and exercises at the Federal, State, regional, local, and tribal levels. • Milestone 8: Within 24 months, complete disaster communications training and exercises for all 56 States and territories. • Milestone 9: Within 24 months, all Federal, State, local, and tribal agencies in UASIs have defined alternate /backup capabilities in emergency communications plans. 3 .-1 GPD and OEC have established program and policy guidelines for IECGP and will ensure that all grants awarded under IECGP comply with: • The SCIP for that State or territory required by the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. §194(f)); and, • The NECP goals and objectives and milestones. The Administrator of FEMA will administer IECGP, pursuant to the authority given to FEMA under the 9/11 Act and Department of Homeland Security Appropriations Act, 2010 (Public Law 111 -83). The FEMA Administrator will ensure that grant funds are awarded consistent with policies established by the Director of OEC. Program Funding Goals IECGP provides funding to improve interoperable emergency communications capabilities across States, territories, local and tribal governments and to support the implementation of the SCIPs. Each State and territory has a SCIP, which outlines goals, objectives and initiatives for enhancing interoperability statewide according to a common set of criteria. The NECP establishes goals and objectives for ensuring interoperable emergency communications nationwide. IECGP funding is provided to States and territories and to local and tribal governments to support achievement of the goals, objectives, and /or initiatives of the SCIPs and to ensure achievement of the goals and milestones of the NECP. For FY 2010, GPD and OEC have identified the following objectives deemed critical for advancing interoperable emergency communications in alignment with the criteria established for the SCIP process. These objectives have been developed to address NECP goals, objectives, and milestones to support SCIP implementation. • Priority Group One: Gaps in Leadership and Governance and Common Operational Planning and Protocols • Priority Group Two: Emergency Responder Skills and Capabilities Development through training and exercises Funding retained by the State or territory must be used to address the objectives in Priority Group One prior to selecting projects to address the objectives in Priority Group Two. Pass - through recipients at the local and tribal levels of government may address objectives in either Priority Group One or Priority Group Two based on the most critical needs consistent with SCIP goals, objectives, and /or initiatives. Note: In addition to these IECGP funds, other DHS grant programs exist and are expected to be leveraged to help promote the funding priorities outlined below. For example, interoperable communications funds were available through the Public Safety Interoperable Communications Grant Program, and continue to be available through the annual Homeland Security Grant Program (HSGP). 4 55A -10 Priority Group One — Gaps in Governance and Common Operational Planning and Protocols Establishment of formal interoperable emergency communications governance structures Governing bodies for interoperable emergency communications efforts are essential to ensure coordinated and consistent planning, implementation, and resource allocation for emergency communications solutions. While governance committees provide the needed guidance and input on statewide and /or regional activities, there is also a need for interoperability coordinators and support staff, whether at the statewide, regional, local or tribal levels to ensure continued management and implementation of multi - discipline and multi - jurisdictional initiatives. Grantees are encouraged to use IECGP funding to address governance and leadership gaps at the statewide and regional levels (intra- and inter - State) associated with: • Implementing SCIP goals, initiatives, and milestones; • Planning, demonstrating, or reporting on NECP goals; • Achieving NECP milestones; or • Achieving formal interoperable communications, regional governance structures in accordance with NECP goals and milestones, using FEMA Regional Emergency Communications Coordination Working Group (RECCWG) and other recognized governance bodies at the State, local, and regional level. Establishment of common planning and operational protocols Grantees should continue emergency communications planning efforts, whether strategic, tactical, or technical to ensure a more coordinated approach to achieving interoperable emergency communications goals, objectives and initiatives. Additionally, grantees are expected to establish common operational protocols through activities such as the development of SOPs, consistent use of interoperability channels, common language protocols, and common channel naming. SOPs should be in compliance with the NIMS ICS. Planning may also include system life cycle planning for interoperable emergency communications equipment. Where applicable, grantees should develop such plans. Grantees are encouraged to use IECGP funding to establish common planning and operational protocols associated with: • Implementing SCIP goals, initiatives, and milestones; • Planning, demonstrating or reporting on NECP goals; or • Achieving NECP milestones. 55A -11 Priority Group Two — Emergency Responder Skills and Capabilities Enhancement of emergency responder skills and capabilities through training and exercises Many public safety agencies do not conduct regular training or exercises to ensure that emergency responders have the knowledge, skills, and abilities to operate emergency communications solutions or follow procedures. The absence of such skills and capabilities can lead to ineffective performance during an actual emergency, as reported in recent assessments including the National Communications Capabilities Report. Interoperable emergency communications - specific training and exercises that are compliant with Homeland Security Exercise and Evaluation Program (HSEEP) criteria with respect to technology solutions and operational protocols should be offered and conducted on a regular basis. Further, applicants should identify issues in after action reports (AAR) and improvement plans (IP) and resolve these issues. Agencies must enhance their own knowledge, skills, and abilities, but must also prioritize training and exercise development with all their partners across disciplines, jurisdictions, and levels of government. Grantees are encouraged to use IECGP funding to conduct regular training and exercises associated with: • Implementing SCIP goals, initiatives, and milestones; • Planning, demonstration or reporting on NECP goals; • Achieving NECP milestones; or Enhancing emergency responder skills and capabilities at the regional level in accordance with NECP goals and milestones using the FEMA RECCWGs or comparable governance bodies. Other DHS grant programs substantially fund infrastructure and equipment acquisitions and upgrades. As the Interoperability Continuum (see Figure 1) demonstrates, and as emphasized in the assessments noted previously, effective interoperable emergency communications is not achieved solely through technological means. Thus, for FY 2010, IECGP funding priorities will focus on key interoperability issues beyond infrastructure and equipment, which are critical for ensuring that the Nation has the necessary capabilities to communicate during emergencies. These interoperable emergency communications capabilities of the Interoperability Continuum cannot be achieved without crucial leadership and governance, common planning and operational protocols, and training and exercises. If an SAA and SWIC /SCIP POC certifies that it's State, territory, and /or pass- through recipients have fulfilled all of the objectives of Priority Groups one and two, the State, territory, and /or pass- through recipients may use FY 2010 IECGP funds to purchase interoperable communications equipment. Interoperable emergency communications equipment must comply with standards in the SAFECOM Guidance, including Project 25 (P25) compliance and narrowband capability. 55A -12 Homeland e, Security Figure 1 - Interoperability Continuum Interoperability Continuum am" 7 55A -13 kmwimw ASWW s C 4-M t torPW�w ag arms O-P — " A"& .. .r ....... RMtes . . �Y OdMYMbn an Md J f rlNnnN F"Ift am" 7 55A -13 PART II. AWARD INFORMATION Authorizing Statutes Department of Homeland Security Appropriations Act, 2010 (Public Law 111 -83) and the Homeland Security Act of 2002 (6 U.S.C. §101 et seq.) Period of Performance The period of performance of this grant is 36 months. Extensions to the period of performance will be considered only through formal requests to FEMA with specific and compelling justifications as to why an extension is required. Available Funding In FY 2010, the total amount of funds distributed under IECGP will be $48,000,000. FY 2010 IECGP funds will be allocated based on risk. Each State will receive a minimum allocation under IECGP using the thresholds established in the 9/11 Act. All 50 States, the District of Columbia, and Puerto Rico will receive a minimum of 0.45 percent of the total funds allocated, per the 9/11 Act. Four territories (American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the U.S. Virgin Islands) will receive a minimum allocation of 0.08 percent of the total funds allocated. 8 55A -14 Table 1 - IECGP State/Territory Final Allocations State/Territory Allocation IState/Territory I Allocation Alabama $621,500 Nevada $468,500 Alaska $315,500 New Hampshire $267,000 Arizona $831,500 New Jersey $1,349,000 Arkansas $338,500 New Mexico $334,000 California $5,480,500 New York $6,300,000 Colorado $621,000 North Carolina $1,076,500 Connecticut $525,500 North Dakota $267,000 Delaware $267,000 Ohio $1,119,500 District of Columbia $595,000 Oklahoma $470,000 Florida $2,243,500 Oregon $522,500 Georgia $1,195,000 Pennsylvania $1,527,000 Hawaii $311,000 Rhode Island $267,000 Idaho $267,000 South Carolina $498,500 Illinois $1,864,500 South Dakota $252,500 Indiana $672,500 Tennessee $636,000 Iowa $452,000 Texas $3,813,000 Kansas $438,500 Utah $380,000 Kentucky $543,500 Vermont $257,000 Louisiana $945,500 Virginia $1,223,500 Maine $267,000 Washington $1,067,000 Maryland $1,031,500 West Virginia $267,000 Massachusetts $1,117,500 Wisconsin $506,000 Michigan $949,000 Wyoming $267,000 Minnesota $645,000 Puerto Rico $347,000 Mississippi $407,500 U.S. Virgin Islands $69,000 Missouri $686,500 American Samoa $52,500 Montana $267,000 Guam $85,500 Nebraska Total $356,500 1 Northern Mariana Islands $54,000 $48,000,000 General Program Requirements SAAs will be responsible for the administration of FY 2010 IECGP funds. SAAs must coordinate with the SWIC /SCIP POC to ensure IECGP program requirements are met. The SWIC /SCIP POC must coordinate with the SIGB (as required by the FY 2007 Statewide Planning Criteria) and the appropriate SCIP stakeholders and committees at the State, regional, local, and tribal levels of government to ensure support for the projects selected and to ensure IECGP program requirements are met. Additionally, States should ensure that unreasonable or unduly burdensome requirements are not placed on a tribal government as a condition of receiving grant funds or resources. In administering the program, the SAA must work with the SWICs, SCIP POCs, stakeholders, and eligible applicants to comply with the following general requirements. E 55A -15 1. SCIP Implementation Reports The 9/11 Act requires States and territories to submit annual reports to OEC on progress in implementing that State's SCIP and achieving interoperability at the interstate, State, county, regional, and city levels as a condition of receiving funding. OEC developed a SCIP Implementation Report for all 56 States and territories based on a comprehensive review of each respective SCIP. Through the SCIP Implementation Report, States will be expected to identify their methodology for demonstrating and reporting on NECP Goal 2. Each State and territory will be required to update its SCIP Implementation Report within 30 days after the end of the IECGP reporting period (July 30 for the reporting period of January 1 through June 30). Beginning in FY 2009, States and territories were encouraged to begin aligning SCIPs to the NECP. 2. Grant funds The SAA must obligate 80 percent of the funds awarded under IECGP to local and tribal governments within 45 days of receipt of the funds. No pass- through requirements will be applied to the District of Columbia, Guam, American Samoa, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands. Each State (as well as Puerto Rico) may retain a portion of the 80 percent pass- through for expenditures made by the State on behalf of local or tribal governments. This may occur only with the written consent of the local or tribal unit of government, with the written consent specifying the amount of funds to be retained and the intended use of funds. 3. Priority Guidance As stated in the Program Funding Goals Section, funding retained by the State or territory must be used to achieve the objectives in Priority Group One and in Priority Group Two before using funds for interoperable emergency communications equipment acquisition. Pass - through recipients at the local and tribal levels of government, though encouraged to establish and enhance governance structures and establish common planning and operational protocols, have the flexibility to select projects in Priority Group One or Priority Group Two. Pass - through recipients must also fulfill both Priority Group One and Priority Group Two objectives prior to using IECGP funds for interoperable emergency communications equipment acquisition. Note: For all proposed FY 2010 IECGP projects that relate to personnel, applicants must identify sustainable sources of funding (or a plan for obtaining sustainable sources) and work to integrate new staff into the State budget in future years to maintain this capability. 10 55A -16 PART III. ELIGIBILITY INFORMATION A. Eligible Applicants All 56 States and territories are eligible to apply for FY 2010 IECGP funds National Incident Management System (NIMS) Implementation Compliance In accordance with Homeland Security Presidential Directive (HSPD) -5, Management of Domestic Incidents, the adoption of the NIMS is a requirement to receive Federal preparedness assistance, through grants, contracts, and other activities. The NIMS provides a consistent nationwide template to enable all levels of government, tribal nations, nongovernmental organizations, and private sector partners to work together to prevent, protect against, respond to, recover from, and mitigate the effects of incidents, regardless of cause, size, location, or complexity. Federal FY 2009 NIMS implementation must be considered prior to allocation of any Federal preparedness awards in FY 2010. In April 2009, the National Integration Center Incident Management Systems Integration (IMSI) Division advised State, tribal nation, and local governments to respond to metric assessments in the NIMS Compliance Assistance Support Tool (NIMSCAST) to assess on -going progress and achievement.2 The list of objectives against which progress and achievement are assessed and reported can be found at http: / /www.fema.-gov/ emergency /nims /Implementation Guidance Stakeholders shtm #item2. All State, tribal nation, and local government grantees were required to update their respective NIMSCAST assessments by September 30, 2009. State, tribal, and local grantees unable to meet implementation objectives were required to submit a Corrective Action Plan via NIMSCAST no later than October 31, 2009. Comprehensive information concerning NIMS implementation for States, tribal nations, local governments, nongovernmental organizations, and the private sector is available through IMSI via its NIMS Resource Center at www.fema.gov /nims. States, tribal nations, and local governments should continue to implement the training guidance contained in the 5 -Year NIMS Training Plan, released in February 2008. The primary grantee /administrator of FY 2010 IECGP award funds is responsible for determining if sub - awardees have demonstrated sufficient progress to disburse awards. Z As defined in the Homeland Security Act of 2002 (Public Law 107 -296), the term "State" means "any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any possession of the United States" 6 U.S.C. 101 (14). 55A -17 State Preparedness Report Submittal Section 652(c) of the Post - Katrina Emergency Management Reform Act of 2006 (Public Law 109 -295), 6 U.S.C. §752(c), requires any State that receives Federal preparedness assistance to submit a State Preparedness Report to DHS. FEMA will provide additional guidance on the FY 2009 State Preparedness Report submission. Receipt of this report is a prerequisite for applicants to receive any FY 2010 DHS preparedness grant funding. B. Cost Sharing In FY 2010, IECGP has a 75% Federal and 25% State cost share, cash or in -kind, requirement for equipment purchases only. Unless otherwise authorized by law, Federal funds cannot be matched with other Federal funds. In accordance with 48 U.S.C. 1469a, match requirements are waived for the U.S. territories of American Samoa, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands. FEMA administers cost sharing requirements in accordance with 44 CFR §13.24, which is located at http:// www. access.gpo.gov/nara/cfr/waisidx 07 144cfrvl 07.htm1. C. Restrictions Please see Part IV.E. for Management & Administration (M &A) limits and allowable /unallowable costs guidance. 12 ��Wli E�� PART IV. APPLICATION AND SUBMISSION INFORMATION A. Address to Request Application Package All applications for DHS grants will be filed using the common electronic "storefront" — www.grants.gov. To access application forms and instructions, select "Apply for Grants," and then select "Download Application Package." Enter the Catalog of Federal Domestic Assistance (CFDA) and /or the funding opportunity number located on the cover of this announcement. Select "Download Application Package," and then follow the prompts to download the application package. To download the instructions, go to "Download Application Package" and select "Instructions." If you experience difficulties or have any questions, please call the www.grants.gov customer support hotline at (800) 518 -4726. DHS may request original signatures on forms at a later date B. Content and Form of Application • Investment Justification • Any additional Required Attachments • Standard Form 424, Application for Federal Assistance • Standard Form 424A, Budget Information • Standard Form 4248, Assurances • Standard Form 424C, Budget Information — Construction Form • Standard Form 424D, Assurances — Construction Programs • Lobbying Form — Certification Regarding Lobbying (this form must be completed by all grant applicants) • Standard Form LLL, Disclosure of Lobbying Activities (if the grantee has engaged or intends to engage in lobbying activities) • Certification Regarding Debarment, Suspension, and Other Responsibility Matters • Certification Regarding Drug -Free Workplace Requirements The program title listed in the CFDA is "Interoperable Emergency Communications Grant Program." The CFDA number is 97.055. 1. Application via www.grants._gov. All applicants must file their applications using the Administration's common electronic "storefront" - www.grants.gov. Eligible 13 55A -19 grantees must apply for funding through this portal, accessible on the Internet at www. grants. gov. 2. Dun and Bradstreet Data Universal Numbering System (DUNS) number. The applicant must provide a DUNS number with their application. This number is a required field within www.grants.gov and for CCR Registration. Organizations should verify that they have a DUNS number, or take the steps necessary to obtain one, as soon as possible. Applicants can receive a DUNS number at no cost by calling the dedicated toll -free DUNS Number request line at (866) 705 -5711. 3. Valid CCR Registration. The application process also involves an updated and current registration by the applicant. Eligible applicants must confirm CCR registration at http: / /www.ccr.gov, as well as apply for funding through www..qrants.gov. 4. Investment Justification. As part of the FY 2010 application process, applicants must develop an Investment Justification that addresses each initiative being proposed for funding. These Investment Justifications must demonstrate how proposed projects address gaps and deficiencies in current programs and capabilities. The Investment Justification must demonstrate the ability to provide enhancements consistent with the purpose of the program and guidance provided by FEMA. Applicants must ensure that the Investment Justification is consistent with all applicable requirements outlined in this application kit. Applicants will find an Investment Justification template in Part VIII. Applicants should use this Investment Justification template to submit the Portfolio Narrative and Portfolio Budget, as well as specific Project Outline(s). C. Submission Dates and Times Application submissions will be received by 11:59 p.m. EST, February 12, 2010. Only applications made through www.grants.govwill be accepted. D. Intergovernmental Review Executive Order 12372 requires applicants from State and local units of government or other organizations providing services within a State to submit a copy of the application to the State Single Point of Contact (SPOC), if one exists, and if this program has been selected for review by the State. Applicants must contact their State SPOC to determine if the program has been selected for State review. Executive Order 12372 can be referenced at http:/ /www. archives. gov/ federal - register /codification /executive- order112372.html. The names and addresses of the SPOCs are listed on OMB's home page available at http:/ /www. whitehouse. pov /omb /grants /spoc.html. 14 55A -20 E. Funding Restrictions DHS grant funds may only be used for the purpose set forth in the grant, and must be consistent with the statutory authority for the award. Grant funds may not be used for matching funds for other Federal grants /cooperative agreements, lobbying, or intervention in Federal regulatory or adjudicatory proceedings. In addition, Federal funds may not be used to sue the Federal government or any other government entity. Pre -award costs are allowable only with the written consent of DHS and if they are included in the award agreement. IECGP provides planning and governance, training, exercise, personnel activities, and equipment funding to States, territories, and local and tribal governments to carry out initiatives to improve interoperable emergency communications. Specific investments made in support of the funding priorities discussed in Part 1 — Program Funding Goals fall into one of the following five allowable cost categories for IECGP FY 2010: 1. Planning 2. Training 3. Exercise 4. Personnel Activities 5. Equipment Interoperable emergency communications equipment acquisition is an allowable cost category for IECGP in FY 2010. However, the SAA and SWIC/SCIP POC must certify in the Application Template that the State, territory, and /or pass- through recipients have fulfilled the objectives of Priority Groups one and two, as outlined in the Funding Goals section of this grant guidance. Grantees are to use IECGP funds on activities that align with IECGP FY 2010 priorities and their approved SCIPs. The allowable cost matrix summarizes the IECGP allowable cost activities. The following sections provide guidance on activities and allowable costs within each of the five allowable cost categories: Planning Costs. All grantees should use FY 2010 IECGP funds for planning efforts consistent with the goals and objectives identified in the SCIPs or to demonstrate and achieve NECP goals and milestones. Planning activities help to prioritize needs, build capabilities, update preparedness strategies, allocate resources, and deliver preparedness programs across disciplines (e.g., law enforcement, fire, EMS, public health, public works, and transportation) and levels of government. FY 2010 IECGP funds may be used for the following types of interoperable emergency communication planning activities: • Development and /or enhancement of interoperable emergency communications plans. Grant funds may be used to develop and /or enhance interoperable communications plans and to implement the initiatives identified in 15 55A -21 the SCIPs. Additionally, funds may be used to update and /or enhance Tactical Interoperable Communications Plans (TICP) and expand tactical planning efforts to non -UASI sites. Activities associated with enhancing these plans may include, but are not limited to, the following— a. Establish a planning committee specific to interoperable communications b. Strengthen committees to ensure broad representation of disciplines and jurisdictions c. Complete any initiatives to strengthen and complete any preliminary planning efforts associated with the SCIPs d. Conduct planning activities associated with SCIP implementation e. Conduct periodic updates to SCIPs and TICPs to account for completed or updated priorities and initiatives and evolving requirements f. Develop additional strategic or tactical plans at the regional (intra- state or inter - state) or local levels, consistent with the SCIP g. Develop system life -cycle plans h. Conduct planning associated with the procurement of communications equipment or systems i. Conduct planning for coordination and interoperability between adjacent States or multiple States j. Conduct planning to demonstrate or achieve NECP goals and milestones k. Conduct planning for narrowband transition, as required by the Federal Communications Commission (FCC) I. Planning for backup communications capabilities in the event that primary systems /equipment fail m. Planning for emerging technology systems • Development and/or enhancement of interoperable emergency communications assessments and inventories. Multi- agency and multi - jurisdictional partnerships should facilitate planning activities, such as assessments of— a. Technology capabilities, specifically the identification and inventorying of infrastructure and equipment3 b. SOPs c. Training and exercises d. System life cycle planning for emergency communications equipment e. Sustainability of the interoperable emergency communications program if Federal grant funds are reduced or eliminated in the future s Note that the procurement of software packages that support emergency communications asset management activities is an allowable cost in FY 2010 IECGP. 1061 55A -22 f. Equipment or systems that are or need to become narrowband compliant • Development and enhancement of interoperable emergency communications protocols. Funds may be used to enhance multi - jurisdictional and multi - disciplinary common planning and operational protocols. Activities may include programming interoperability channels and developing SOPs, common channel naming, fleet maps, common language protocols, and narrowband transition. In addition, activities may focus on SOPs to ensure backup communications capabilities when primary systems or equipment fail. • Meeting - related expenses. These costs may include the rental of space /locations /facilities for planning activities. This may also include costs for signs, badges, and similar materials. • Public education and outreach. These costs may cover providing interoperable emergency communications education and outreach activities on the SCIP and associated interoperable emergency communications initiatives. • Supplies. Supplies are items that are expended or consumed during the course of the planning project(s). • Travel. Travel costs (e.g. airfare, mileage per diem, or hotels) are allowable as expenses by employees who are on travel status for official business related to professional interoperable emergency communications planning activities, such as local, regional, and interstate meetings and conferences, the OEC annual National Emergency Communications Workshop, RECCWG meetings, and Communications Unit Leader (COML) training. • Other project planning activities with prior approval from DHS. 2. Training Costs. States, territories, and local and tribal governments are strongly encouraged to use IECGP funds to support interoperable emergency communications training activities. Communications - specific training activities should be incorporated into the statewide training and exercise plan and coordinated with the State interoperability coordinator and /or formal statewide interoperable emergency communications governance committee. Training developed or conducted using IECGP funds should address a performance gap identified through the SCIPs, TICP AARs, and /or other assessments. Exercises should be used to provide the opportunity to demonstrate and validate skills learned in training and to identify training gaps. Any training or exercise gaps should be identified in the grantee's AAR /IP and addressed in the training cycle. FY 2010 IECGP funds may be used for the following interoperable emergency communication training activities— Funds used to develop, deliver, attend, and evaluate training. Grant funds may be used to develop training programs and materials. Grant funds may also be used to plan, attend, and conduct communications - specific training workshops or conferences, to include covering costs related to planning, meeting space, and 17 55A -23 other meeting costs, facilitation costs, materials and supplies, travel, and training development. Communications - specific training should focus on— a. Use of established operational protocols (e.g., common language) b. Use of NIMS ICS c. Use of interoperable emergency communications solutions d. COML, Communications Unit Technician, or other ICS Communications Unit position training e. Demonstration of NECP Milestone 8, as referenced in Part I f. Training associated with the narrowband transition g. Training associated with backup communications capabilities when primary systems /equipment fail • Travel. Travel costs (e.g., airfare, mileage, per diem, or hotel) are allowable as expenses by employees who are on travel status for official business related to the planning and conduct of the training project(s). • Supplies. Supplies are items that are expended or consumed during the course of the planning and conduct of the training project(s). • Meeting - related expenses. These costs may include the rental of space /locations /facilities for planning and conducting training. This may also include costs for signs, badges, and similar materials. 3. Exercise Costs. Exercises conducted using IECGP funds must be managed and executed in accordance with the HSEEP. The HSEEP Library will provide guidance for exercise design, development, conduct, evaluation, and improvement planning. The HSEEP Library provides sample exercise materials, and HSEEP Volume V: Prevention Exercises provides guidance and recommendations for designing, developing, conducting, and evaluating prevention- focused exercises. The HSEEP Library can be found at: http : / /hseep.dhs.gov. All exercises using IECGP funding must be NIMS - compliant. More NIMS information is available online at: http:// www. fema ..qovlemergencylnimslindex.shtm. Communications - specific exercise activities should be incorporated into the statewide training and exercise plan and coordinated with the State interoperability coordinator and /or statewide interoperable emergency communications governance committee. FY 2010 IECGP funds may be used for the following interoperable emergency communication exercise activities— Funds used to design, develop, conduct, and evaluate exercises. Grant funds may be used to enhance existing training, to include an interoperable emergency communications component, or to plan and conduct communications - specific exercise workshops or conferences. This includes costs related to planning, meeting space and other meeting costs, facilitation costs, materials and supplies, travel, and exercise plan development. Funds may be used to design, 18 55A -24 conduct, and evaluate interoperable emergency communications exercises, including tabletop and fully functional exercises. Exercise activities should focus on the— a. Use of established operational protocols b. Use of interoperable emergency communications solutions c. Use of TICP to exercise on SOPs d. Achievement of NECP milestones • Travel. Travel costs (e.g., airfare, mileage, per diem, or hotel) are allowable as expenses by employees who are on travel status for official business related to the planning and conduct of the IECGP exercise project(s). • Supplies. Supplies are items that are expended or consumed during the course of the planning and conduct of the exercise project(s). • Meeting - related expenses. These costs may include the rental of space /locations /facilities for planning and conducting exercises. This may also include costs for signs, badges, and similar materials. 4. Personnel Activities. In general, the use of IECGP grant funding to pay for staff and /or contractor regular time or overtime /backfill is considered a personnel cost. These expenses are permitted under this grant in order to perform allowable FY 2010 IECGP planning, training, and exercise activities, as well as activities associated with implementing goals, objectives, and initiatives of the SCIP and achieving goals and milestones of the NECP. Specifically, this includes personnel associated with the interoperability coordinator function. Applicants must identify sustainable sources of funding (or a plan for obtaining sustainable forces) and work to integrate new staff into the State and local budgets in future years to maintain these capabilities. FY 2010 IECGP funds may not be used to support the hiring of any personnel for the purposes of fulfilling traditional public safety duties or to supplant traditional public safety positions and responsibilities. Activities that are considered "personnel' include: • Hiring of certain full or part -time staff and contractors or consultants. Full or part-time staff may be hired to support IECGP planning, training, exercise, and equipment planning and purchase- related activities. This includes staff to serve in the following roles, consistent with the SCIPs- a. SWIC b. Project manager(s) /subject matter expert(s) for the SWIC function, as appropriate c. Regional, local, or tribal interoperability coordinator(s), as appropriate • Office Equipment. Office equipment costs are allowable, including personal computers, computer peripherals (for example, printers and external hard drives), and office telephones to support IECGP - related personnel. 19 55A -25 The following are definitions for the terms used in this grant guidance: • Hiring. State and local entities may use grant funding to cover the salary of newly hired personnel who are exclusively undertaking allowable FEMA program activities as specified in this guidance. This may not include new personnel who are hired to fulfill any non -FEMA program activities under any circumstances. Hiring will always result in a net increase of FTEs. • Overtime and Backfill. The entire amount of overtime costs, including payments related to backfilling personnel, which are the direct result of time spent on the design, development and conduct of exercises, in addition to attendance at FEMA and /or approved training courses and programs, are allowable. These costs are allowed only to the extent the payment for such services is in accordance with the policies of the State or unit(s) of local government and has the approval of the State or the awarding agency, whichever is applicable. In no case is dual compensation allowable. That is, an employee of a unit of government may not receive compensation from their unit or agency of government AND from an award for a single period of time (e.g., 1:00 p.m. to 5:00 p.m.), even though such work may benefit both activities. • Supplanting. This refers to replacing a State and /or locally budgeted position with one or more full -time employees or contractors supported in whole or in part with Federal funds. Supplanting with grant funds is prohibited. 5. Equipment Planning and Purchase. In addition to purchasing interoperable emergency communications equipment, adequate technical and financial planning is needed to ensure that interoperable communications systems meet the needs of public safety agencies. Consistent with the OEC Recommended Guidance for Federal Grant Programs (SAFECOM Guidance for Grant Programs), grantees must develop a communications system life -cycle plan when using IECGP funds to purchase communications systems. In addition, grantees are encouraged to migrate to approved open architecture and to leverage existing and emerging technologies to expand and integrate disaster communications capabilities. Finally, grantees must demonstrate how their procurements will comply with the applicable standards for land mobile radio systems and data - related information sharing systems or provide compelling reasons for using non - standards -based solutions. For applicable standards information, please see the Recommended Guidance for Federal Grant Programs (SAFECOM Guidance for Grant Programs) available at www. safecompro.gram.gov. Grant - funded systems, developmental activities, or services related to emergency response information sharing should conform as much as possible with the OASIS Emergency Data Exchange Language (EDXL) suite of data messaging standards and National Incident Management System (NIMS) guidelines. Additional information on data messaging standards and their applicability maybe found at www.oasis- open.orq. The NIMS Supporting Technology Evaluation Program (NIMS STEP) provides objective evaluations of commercial software and hardware products, and reports on product 20 55A -26 conformity to standards and NIMS guidelines. Findings from evaluations may be accessed through the Responder Knowledge Base (RKB) website to assist grantees in making purchases. More information on the NIMS STEP can be found at https : / /www.rkb.us /contentdetaii.cfm ?content id= 219711. For detailed standards information, please see the Recommended Guidance for Federal Grant Programs (SAFECOM Guidance for Grant Programs) available at www.safecompro-gram.gov. IECGP funds should be used for activities that include, but are not limited to, the following: Development of communications system life -cycle plans. Emergency response providers must upgrade and regularly maintain communications systems and capabilities to ensure effective operation. System life -cycle planning is needed to ensure long -term sustainability of communications systems and infrastructure. Grantees are required to provide a system life -cycle plan for any communications system purchased with IECGP funding and may use funding for costs associated with the development of a system life -cycle plan. Equipment Purchases and Related Costs. If an SAA and SWIC /SCIP POC certifies that its State, territory, or pass- through recipient has fulfilled all of the objectives of Priority Groups one and two, the State, territory, or pass- through recipient has the flexibility to purchase interoperable communications equipment with any remaining IECGP funds. When making equipment purchase decisions, grantees should take into account multi - disciplinary and multi - jurisdictional needs. IECGP funds may be used for costs associated with the following— a. Design, implementation, enhancement, replacement, and maintenance of emergency response communications systems and equipment b. Migration to approved open architecture and interoperable next generation systems, where appropriate c. Leveraging of existing and emerging technologies to expand and integrate disaster communications capabilities among emergency response providers d. Governance, development of policies and procedures, and the conduct of training and exercises needed for use of systems and equipment e. Transition of equipment and systems to narrowband operation f. Costs associated with maintaining existing equipment, including, storage, calibration, maintenance and testing of strategic reserve equipment; and cellular and satellite airtime for equipment used for emergency response only States that are using FY 2010 IECGP funds to purchase Interoperable Communications Equipment (Category 6) must consult SAFECOM's coordinated grant guidance which 21 55A -27 outlines standards and equipment information to enhance interoperable communications. This guidance can be found at http: / /www.safecomprogram.gov. Additionally, grantees are required to coordinate with other State and local partners in integrating their interoperable communications plans and projects as outlined in each State's Statewide Communication Interoperability Plan. For more information on these allowed activities, please see the OEC Recommended Guidance for Federal Grant Programs (SAFECOM Guidance for Grant Programs) available at www.safecomprogram.gov. 6. Other Allowable Costs — Maintenance and Sustainment. The use of FEMA preparedness grant funds for maintenance contracts, warranties, repair or replacement costs, upgrades, and user fees are allowable under all active and future grant awards, unless otherwise noted. Grantees are reminded to be sensitive to supplanting issues. Maintenance contracts, warranties, repair or replacement costs, upgrades, and user fees previously purchased with State and or local funds cannot be replaced with Federal grant funding. Routine upkeep (i.e. gasoline, tire replacement, routine oil changes, monthly inspections, grounds and facility maintenance etc.) is the responsibility of the grantee and may not be funded with preparedness grant funding. Maintenance Contracts and Warranties. To increase the useful life of the equipment, maintenance contracts and warranties may be purchased using grant funding from one fiscal year (FY) to cover equipment purchased with funding from a different fiscal year. The use of grant funding for the purchase of maintenance contracts and warranties must meet the following conditions: • Maintenance contracts and warranties may only be purchased for equipment that has been purchased using FEMA preparedness grant funding • To avoid supplementing Congressional appropriations for specific programs, maintenance contracts and warranties must be purchased using funds from the same grant program used to purchase the original equipment • The term of the maintenance contract or warranty shall not exceed the period of performance of the grant to which the contract is being charged. Repair and Replacement Costs. The cost of repair and replacement parts for equipment purchased using FEMA preparedness grant funding is an allowable expense. • Repair and replacement parts may only be purchased for equipment that has been purchased using FEMA preparedness grant funding • To avoid supplementing Congressional appropriations for specific programs, repair and replacement parts must be purchased using the same grant program used to purchase the original equipment. • Upgrades. FEMA preparedness grant funding may be used to upgrade previously purchased allowable equipment. For example, if the grantee purchased risk 22 Ile L'i management software with HSGP funds in FY 2005 and would like to use FY 2010 grant funding to upgrade the software, this is allowable. • Upgrades may only be purchased for equipment that has been purchased using FEMA preparedness grant funding. • To avoid supplementing Congressional appropriations for specific programs, upgrades must be purchased using the same grant program used to purchase the original equipment. User fees. User fees are viewed as costs for specific services required to maintain and provide continued operation of equipment or systems. An example would be the recurring service fees associated with handheld radios or mobile data computers. • User fees may only be paid for equipment that has been purchased using FEMA preparedness grant funding. • To avoid supplementing Congressional appropriations for specific programs, user fees must be paid for using the same grant program used to purchase the original equipment. The service time purchased shall not exceed the period of performance of the grant to which the user fee is being charged. • Implementation. Planned or actual expenditures for maintenance contracts and warranties, repair and replacement costs, upgrades and user fees must be reflected in the Initial Strategy Implementation Plan (ISIP) or Biannual Strategy Implementation Report (BSIR). Grantees must comply with all the requirements in 44 CFR Part 13 and 2 CFR Part 215. Management and Administration (M&A) limits. A maximum of up to five percent (5 %) of funds awarded may be retained by the State. All such retained funds must be used solely for management and administrative purposes associated with the IECGP award. Subgrantees may also use up to five percent (5 %) of the FY 2010 IECGP Grant Program funds awarded to them by the State to be used solely for management and administrative purposes associated with the award. NOTE: Construction related activities are not permitted with funding from the FY 2010 IECGP. F. Other Submission Requirements Federal employees are prohibited from serving in any capacity (paid or unpaid) on any proposal submitted under this program. Federal employees may not receive funds under this award. 23 55A -29 PART V. APPLICATION REVIEW INFORMATION A. Review Criteria Submitted IECGP Investment Justifications will undergo a joint DHS OEC and FEMA GPD review process to ensure that all Investment Justifications are compliant with program requirements before the funds are awarded. B. Review and Selection Process IECGP Investment Justifications will undergo a two -step review process: Federal and programmatic review. This process will ensure that all proposed projects are compliant with FY 2010 program requirements and objectives. Federal Review. The Federal reviewers are from within both FEMA and OEC as well as from other Federal agencies. FEMA and OEC will select the interoperable communications and grants management subject matter experts whose perspectives will most benefit the overall program. The Federal reviewers will assess the quality of the Investment Justifications based on whether or not the applicant sufficiently met each of the criteria requested in the Investment Justification, such as Alignment to SCIP and Alignment to Priority Groups. Programmatic Review. GPD will conduct the programmatic review to verify that all required documents, including standard forms, have been submitted and that the applicants' budget information adheres to program guidance. GPD, along with subject matter experts from OEC, will make final decisions on approvals and special conditions based on the recommendations of the Federal reviewers. GPD will approve and award IECGP funds based on the above criteria, and the applicants will receive correspondence from GPD on the status of their submitted Investment Justifications. C. Anticipated Announcement and Award Dates FEMA will evaluate and act on applications within 60 days following close of the application period, consistent with the Department of Homeland Security Appropriations Act, 2090 (Public Law 111 -83). Awards will be made on or before September 30, 2010. 24 PART VI. AWARD ADMINISTRATION INFORMATION A. Notice of Award Upon approval of an application, the grant will be awarded to the SAA. The date that this is done is the "award date." Notification of award approval is made through the Grants Management System (GMS). Once an award has been approved, a notice is sent to the authorized SAA grantee official. Follow the directions in the notification to accept your award documents. The authorized SAA grantee official should carefully read the award and special condition documents. If you do not receive a notification, please contact your FEMA Program Analyst for your award number. Once you have the award number, contact the GMS Help Desk at (888) 549 -9901, option three, to obtain the username and password associated with the new award. Awards made to SAAs for the IECGP carry additional pass- through requirements. Pass - through is defined as an obligation on the part of the States to make funds available to local units of government, combinations of local units, or other specific groups or organizations. The State's pass- through period must be met within 45 days of the award date for the IECGP. 4 Four requirements must be met to pass- through grant funds: • There must be some action to establish a firm commitment on the part of the awarding entity. • The action must be unconditional (i.e., no contingencies for availability of SAA funds) on the part of the awarding entity. • There must be documentary evidence of the commitment. • The award terms must be communicated to the official grantee. FEMA will track the congressionally - mandated obligation of funds to local units of government through each State's Initial Strategy Implementation Plan. In addition, FEMA strongly encourages the timely obligation of funds from local units of government to other subgrantees, as appropriate. The period of performance is 36 months and begins on the Project Period /Budget Period start date listed in the award package. Any unobligated funds will be de- obligated at the end of the close -out period. Extensions to the period of performance will be considered only through formal requests to FEMA with specific and compelling justifications why an extension is required. All extension requests must be submitted to 4 For purposes of the FY 2010 IECGP, receipt of funds means the date on which funds are available for expenditure (e.g., all special conditions prohibiting obligation, expenditure and draw down have been removed). 25 55A -31 FEMA at least 60 days prior to the expiration of the grant period of performance. The justification must address: • Reason for delay; • Current status of the activity /activities; • Approved period of performance termination date and new project completion date; • Remaining available funds, both Federal and non - Federal; • Budget outlining how remaining Federal and non - Federal funds will be expended; • Plan for completion including milestones and timeframe for achieving each milestone and the position /person responsible for implementing the plan for completion; and • Certification that the activity /activities will be completed within the extended period of performance without any modification to the original Statement of Work approved by FEMA. B. Administrative and National Policy Requirements The recipient and any sub - recipient(s) must, in addition to the assurances made as part of the application, comply and require each of its subcontractors employed in the completion of the project to comply with all applicable statutes, regulations, executive orders, OMB circulars, terms and conditions of the award, and the approved application. 1. Standard Financial Requirements. The grantee and any subgrantee(s) shall comply with all applicable laws and regulations. A non - exclusive list of regulations commonly applicable to DHS grants are listed below: 1 —Administrative Requirements. • 44 CFR Part 13, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments • 2 CFR Part 215, Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non - Profit Organizations (formerly OMB Circular A -110) 1.2 — Cost Principles. • 2 CFR Part 225, Cost Principles for State, Local, and Indian tribal Governments (formerly OMB Circular A -87) • 2 CFR Part 220, Cost Principles for Educational Institutions (formerly OMB Circular A -21) • 2 CFR Part 230, Cost Principles for Non - Profit Organizations (formerly OMB Circular A -122) • Federal Acquisition Regulations (FAR), Part 31.2 Contract Cost Principles and Procedures, Contracts with Commercial Organizations Wel 55A -32 1.3 — Audit Requirements. • OMB Circular A -133, Audits of States, Local Governments, and Non - Profit Organizations 1.4 — Duplication of Benefits. There may not be a duplication of any Federal assistance, per 2 CFR Part 225, Basic Guidelines Section C.3 (c), which states: Any cost allocable to a particular Federal award or cost objective under the principles provided for in this Authority may not be charged to other Federal awards to overcome fund deficiencies, to avoid restrictions imposed by law or terms of the Federal awards, or for other reasons. However, this prohibition would not preclude governmental units from shifting costs that are allowable under two or more awards in accordance with existing program agreements. Non - governmental entities are also subject to this prohibition per 2 CFR Parts 220 and 230 and FAR Part 31.2. 2. Payment. DHS /FEMA uses the Direct Deposit/Electronic Funds Transfer (DD /EFT) method of payment to Recipients. To enroll in the DD /EFT, the Recipient must complete a Standard Form 1199A, Direct Deposit Form. FEMA uses the FEMA Payment and Reporting System (PARS) for payments made under this program, https://isource.fema.gov /sf269 /(Note: link connects to Federal Financial Report [SF- 425]). 2.1 — Advance Payment. In accordance with Treasury regulations at 31 CFR Part 205, the Recipient shall maintain procedures to minimize the time elapsing between the transfer of funds and the disbursement of said funds (see 44 CFR Part 13.21(c)) regarding payment of interest earned on advances. In order to request an advance, the Recipient must maintain or demonstrate the willingness and ability to maintain procedures to minimize the time elapsing between the transfer of funds from DHS and expenditure and disbursement by the Recipient. When these requirements are not met, the Recipient will be required to be on a reimbursement for costs incurred method. 2.2—Forms. In order to download the Standard Form 1199A, the Recipient may use the following Internet site: http:// www.fms.treas..qovleft/1199a.pdf. NOTE: FUNDS WILL NOT BE AUTOMATICALLY TRANSFERRED UPON ISSUANCE OF THE GRANT. GRANTEES MUST SUBMIT A REQUEST FOR ADVANCE /REIMBURSEMENT IN ORDER FOR THE FUNDS TO BE TRANSFERRED TO THE GRANTEE'S ACCOUNT. 3. Non - supplanting Requirement. Grant funds will be used to supplement existing funds, and will not replace (supplant) funds that have been appropriated for the same purpose. Applicants or grantees may be required to supply documentation certifying that a reduction in non - Federal resources occurred for reasons other than the receipt or expected receipt of Federal funds. 27 55A -33 4. Technology Requirements. 4.1 — National Information Exchange Model (NIEM). FEMA requires all grantees to use the latest NIEM specifications and guidelines regarding the use of Extensible Markup Language (XML) for all grant awards. Further information about the required use of NIEM specifications and guidelines is available at http: / /www. niem. gov. 4.2 — Geospatial Guidance. Geospatial technologies capture, store, analyze, transmit, and /or display location -based information (i.e., information that can be linked to a latitude and longitude). FEMA encourages grantees to align any geospatial activities with the guidance available on the FEMA website at http:/ /www. fema. gov /grants. 4.3 — 28 CFR Part 23 Guidance. FEMA requires that any information technology system funded or supported by these funds comply with 28 CFR Part 23, Criminal Intelligence Systems Operating Policies, if this regulation is determined to be applicable. 5. Administrative Requirements. 5.1 — Freedom of Information Act (FOIA). FEMA recognizes that much of the information submitted in the course of applying for funding under this program or provided in the course of its grant management activities may be considered law enforcement sensitive or otherwise important to national security interests. While this information under Federal control is subject to requests made pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. §552, all determinations concerning the release of information of this nature are made on a case -by -case basis by the FEMA FOIA Office, and may likely fall within one or more of the available exemptions under the Act. The applicant is encouraged to consult its own State and local laws and regulations regarding the release of information, which should be considered when reporting sensitive matters in the grant application, needs assessment, and strategic planning process. The grantee should be familiar with the regulations governing Sensitive Security Information (49 CFR Part 1520), as it may provide additional protection to certain classes of homeland security information. 5.2 — Protected Critical Infrastructure Information (PCII). The PCII Program, established pursuant to the Critical Infrastructure Act of 2002 (Public Law 107- 296) (CII Act), created a framework which enables members of the private sector, States, local jurisdictions, and tribal nations to voluntarily submit sensitive information regarding critical infrastructure to DHS. The Act provides statutory protection from public disclosure and civil litigation for CII that is validated as PCII. When validated as PCII, the information can only be shared with 28 55A -34 Government employees who complete the training requirement, who have homeland security duties, and a need to know. PCII accreditation is a formal recognition that the covered government entity has the capacity and capability to receive and store PCII appropriately. DHS encourages all States, local jurisdictions, and tribal nations to pursue PCII accreditation to cover their government agencies. Accreditation activities include signing a memorandum of agreement (MOA) with DHS, appointing a PCII Officer and developing a standard operating procedure for handling PCII. For additional information about PCII or the accreditation process, please contact the DHS PCII Program Office at pcii- info(a-dhs.gov. 5.3 — Compliance with Federal civil rights laws and regulations. The grantee is required to comply with Federal civil rights laws and regulations. Specifically, the grantee is required to provide assurances as a condition for receipt of Federal funds that its programs and activities comply with the following: Title VI of the Civil Rights Act of 1964, as amended, 42. U.S.C. §2000 et. seq. — Provides that no person on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination in any program or activity receiving Federal financial assistance. Title VI also extends protection to persons with Limited English Proficiency (LEP). (42 U.S.C. §2000d et seq.) • Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. §1681 et. seq. — Provides that no person, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving Federal financial assistance. Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794 — Provides that no otherwise qualified individual with a disability in the United States, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or subject to discrimination in any program or activity receiving Federal financial assistance. • The Age Discrimination Act of 1975, as amended, 20 U.S.C. §6101 et. seq. — Provides that no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance. Grantees must comply with all regulations, guidelines, and standards adopted under the above statutes. The grantee is also required to submit information, as 29 55A -35 required, to the DHS Office for Civil Rights and Civil Liberties concerning its compliance with these laws and their implementing regulations. 5.4 — Services to Limited English Proficient (LEP) persons. Recipients of FEMA financial assistance are required to comply with several Federal civil rights laws, including Title VI of the Civil Rights Act of 9964, as amended. These laws prohibit discrimination on the basis of race, color, religion, natural origin, and sex in the delivery of services. National origin discrimination includes discrimination on the basis of limited English proficiency. To ensure compliance with Title VI, recipients are required to take reasonable steps to ensure that LEP persons have meaningful access to their programs. Meaningful access may entail providing language assistance services, including oral and written translation, where necessary. The grantee is encouraged to consider the need for language services for LEP persons served or encountered both in developing their proposals and budgets and in conducting their programs and activities. Reasonable costs associated with providing meaningful access for LEP individuals are considered allowable program costs. For additional information, see http: / /www.lep.gov. 5.5 — Certifications and Assurances. Certifications and assurances regarding the following apply: Lobbying. 31 U.S.C. §1352, Limitation on use of appropriated funds to influence certain Federal contracting and financial transactions — Prohibits the use of Federal funds in lobbying members and employees of Congress, as well as employees of Federal agencies, with respect to the award or amendment of any Federal grant, cooperative agreement, contract, or loan. FEMA and DHS have codified restrictions upon lobbying at 44 CFR Part 18 and 6 CFR Part 9. (Refer to form included in application package.) Drug -free Workplace Act, as amended, 41 U.S.C. §701 et seq. — Requires the recipient to publish a statement about its drug -free workplace program and give a copy of the statement to each employee (including consultants and temporary personnel) who will be involved in award - supported activities at any site where these activities will be carried out. Also, place(s) where work is being performed under the award (i.e., street address, city, state and zip code) must be maintained on file. The recipient must notify the Grants Officer of any employee convicted of a violation of a criminal drug statute that occurs in the workplace. For additional information, see 44 CFR Part 17. • Debarment and Suspension — Executive Orders 12549 and 12689 provide protection from fraud, waste, and abuse by debarring or suspending those persons that deal in an irresponsible manner with the Federal government. The recipient must certify that they are not debarred or suspended from 30 1, receiving Federal assistance. For additional information, see 44 CFR Part 17. • Federal Debt Status — The recipient may not be delinquent in the repayment of any Federal debt. Examples of relevant debt include delinquent payroll or other taxes, audit disallowances, and benefit overpayments. (OMB Circular A -129) (Refer to SF 424, item number 17.) • Hotel and Motel Fire Safety Act of 1990 — In accordance with section 6 of the Hotel and Motel Fire Safety Act of 1990, 15 U.S.C. §2225a, the recipient agrees to ensure that all conference, meeting, convention, or training space funded in whole or in part with Federal funds, complies with the fire prevention and control guidelines of the Federal Fire Prevention and Control Act of 1974, 15 U.S.C. §2225. Grantees must comply with all regulations, guidelines, and standards adopted under the above statutes. 5.6 — Integrating individuals with disabilities into emergency planning. Section 504 of the Rehabilitation Act of 1973, as amended, prohibits discrimination against people with disabilities in all aspects of emergency mitigation, planning, response, and recovery by entities receiving financial funding from FEMA. In addition, Executive Order 13347, Individuals with Disabilities in Emergency Preparedness signed in July 2004, requires the Federal Government to support safety and security for individuals with disabilities in situations involving disasters, including earthquakes, tornadoes, fires, floods, hurricanes, and acts of terrorism. Executive Order 13347 requires the Federal government to encourage consideration of the needs of individuals with disabilities served by State, local, and tribal governments in emergency preparedness planning. FEMA has several resources available to assist emergency managers in planning and response efforts related to people with disabilities and to ensure compliance with Federal civil rights laws: Comprehensive Preparedness Guide 301 (CPG -301): Interim Emergency Management Planning Guide for Special Needs Populations. CPG -301 is designed to aid tribal, State, territorial, and local governments in planning for individuals with special needs. CPG - 301 outlines special needs considerations for: Developing Informed Plans; Assessments and Registries; Emergency Public Information /Communication; Sheltering and Mass Care; Evacuation; Transportation; Human Services /Medical Management; Congregate Settings; Recovery; and Training and Exercises. CPG -301 is available at http: / /www. fema. pov /pdf /media /2008/301. pdf. 31 55A -37 • Guidelines for Accommodating Individuals with Disabilities in Disaster. The Guidelines synthesize the array of existing accessibility requirements into a user friendly tool for use by response and recovery personnel in the field. The Guidelines are available at http: / /www. fema. gov/oer /reference% • Disability and Emergency Preparedness Resource Center. A web -based "Resource Center" that includes dozens of technical assistance materials to assist emergency managers in planning and response efforts related to people with disabilities. The "Resource Center" is available at http://Www.disability,preparedness.gov. Lessons Learned Information Sharing (LLIS) resource page on Emergency Planning for Persons with Disabilities and Special Needs. A true one -stop resource shop for planners at all levels of government, non- governmental organizations, and private sector entities, the resource page provides more than 250 documents, including lessons learned, plans, procedures, policies, and guidance, on how to include citizens with disabilities and other special needs in all phases of the emergency management cycle. LLIS.gov is available to emergency response providers and homeland security officials from the Federal, State, and local levels. To access the resource page, log onto http: //www.LLIS. pov and click on Emergency Planning for Persons with Disabilities and Special Needs under Featured Topics. If you meet the eligibility requirements for accessing LLIS.gov, you can request membership by registering online. 5.7 — Environmental Planning and Historic Preservation (EHP) Compliance. FEMA is required to consider the potential impacts to the human and natural environment of projects proposed for FEMA grant funding. FEMA, through its EHP Program, engages in a review process to ensure that FEMA- funded activities comply with various Federal laws including: National Environmental Policy Act, National Historic Preservation Act, Endangered Species Act, the Clean Water Act, and Executive Orders on Floodplains (11988), Wetlands (11990), and Environmental Justice (12898). The goal of these compliance requirements is to protect our Nation's water, air, coastal, wildlife, agricultural, historical, and cultural resources, as well as to minimize potential adverse effects to low- income and minority populations. The grantee shall provide all relevant information to FEMA's Grant Programs Directorate (GPD) to ensure compliance with applicable Federal EHP requirements. Any project with the potential to impact natural or biological resources or historic properties cannot be initiated until FEMA has completed the required EHP review. In addition to a detailed project description that describes what is to be done with the grant funds, how it will be done, and where it will be 32 4;1_ 190 done, grantees shall provide detailed information about the project (where applicable), including, but not limited to, the following: • Project location (i.e., exact street address or map coordinates) • Total extent of ground disturbance and vegetation clearing • Extent of modification of existing structures • Construction equipment to be used, staging areas, etc. • Year that any affected buildings or structures were built • Natural, biological, and /or cultural resources present within the project area and vicinity, including wetlands, floodplains, geologic resources, threatened or endangered species, or National Register of Historic Places listed or eligible properties, etc. • Visual documentation such as good quality, color and labeled site and facility photographs, project plans, aerial photos, maps, etc. • Alternative ways considered to implement the project (not applicable to procurement of mobile and portable equipment) For projects that have the potential to impact sensitive resources, FEMA must consult with other Federal, State, and tribal agencies such as the U.S. Fish and Wildlife Service, State Historic Preservation Offices, and the U.S. Army Corps of Engineers, as well as other agencies and organizations responsible for the protection and /or management of natural and cultural resources, including Federally- recognized Indian tribes, Tribal Historic Preservation Offices, and the Department of the Interior, Bureau of Indian Affairs. For projects with the potential to have adverse effects on the environment and /or historic properties, FEMA's EHP review process and consultation may result in a substantive agreement between the involved parties outlining how the grantee will avoid the effects, minimize the effects, or, if necessary, compensate for the effects. Grantees who are proposing communication tower projects are encouraged to complete their Federal Communications Commission (FCC) EHP process prior to preparing their EHP review materials for GPD, and to include their FCC EHP materials with their submission to GPD. Completing the FCC process first and submitting all relevant EHP documentation to GPD will help expedite FEMA's review. Because of the potential for adverse effects to EHP resources or public controversy, some projects may require an additional assessment or report, such as an Environmental Assessment, Biological Assessment, archaeological survey, cultural resources report, wetlands delineation, or other document, as well as a public comment period. Grantees are responsible for the preparation of such documents, as well as for the implementation of any treatment or mitigation measures identified during the EHP review that are necessary to address potential adverse impacts. Grantees may use grant funds toward the costs of preparing such documents. The use of grant funds for mitigation or treatment measures that are not typically allowable expenses will be considered on a case - by -case basis. Failure of the grantee to meet Federal, State, local, and territorial 33 rU, EHP requirements, obtain required permits, and comply with any conditions that may be placed on the project as the result of FEMA's EHP review may jeopardize Federal funding. Recipients shall not undertake any project without the prior approval of GPD, and must comply with all conditions placed on the project as the result of the EHP review. Any change to the approved project description will require re- evaluation for compliance with these EHP requirements. If ground disturbing activities occur during project implementation, the recipient must ensure monitoring of ground disturbance, and if any potential archeological resources are discovered, the recipient will immediately cease construction in that area and notify their GPD Program Analyst, and the appropriate State Historic Preservation Office. Any projects that have been initiated prior to approval will result in a non - compliance finding and will not be eligible for funding. For more information on FEMA's EHP requirements, SAAs should refer to FEMA's Information Bulletin #329, Environmental Planning and Historic Preservation Requirements for Grants, available at http:// ojp. usdoj.gov /odp /docs /info329.pdf. Additional information and resources can also be found at http://www.fema.gov/ plan /ehp/ehp- applicant- help.shtm. 5.8 — Royalty -free License. Applicants are advised that FEMA reserves a royalty -free, non - exclusive, and irrevocable license to reproduce, publish, or otherwise use, and authorize others to use, for Federal government purposes: (a) the copyright in any work developed under an award or sub - award; and (b) any rights of copyright to which an award recipient or sub - recipient purchases ownership with Federal support. Award recipients must agree to consult with FEMA regarding the allocation of any patent rights that arise from, or are purchased with, this funding. 5.9 — FEMA GPD Publications Statement. Applicants are advised that all publications created with funding under any grant award shall prominently contain the following statement: "This document was prepared under a grant from the Federal Emergency Management Agency's Grant Programs Directorate (FEMA/GPD) within the U.S. Department of Homeland Security. Points of view or opinions expressed in this document are those of the authors and do not necessarily represent the official position or policies of FEMA/GPD or the U.S. Department of Homeland Security." 5.10 — Equipment Marking. Awardees may consider marking equipment in the following manner, "Purchased with funds provided by the U.S. Department of Homeland Security," in order to facilitate their own audit processes, as well as Federal audits and monitoring visits, which may result from receiving Federal funding. Equipment maintenance requirements are outlined in 44 CFR Part 13.32. 5.11 — Disadvantaged Business Requirement. Applicants are advised that, to 34 the extent that recipients of a grant use contractors or subcontractors, such recipients shall use small, minority, women -owned or disadvantaged business concerns and contractors or subcontractors to the extent practicable. 5.12 -National Preparedness Reporting Compliance. The Government Performance and Results Act of 9993 (Public Law 103 -62) (GPRA) requires that the Department collect and report performance information on all programs. For grant programs, the prioritized Investment Justifications and their associated milestones provide an important tool for assessing grant performance and complying with these national preparedness reporting requirements. FEMA will work with grantees to develop tools and processes to support this requirement. FEMA anticipates using this information to inform future -year grant program funding decisions. Award recipients must agree to cooperate with any assessments, national evaluation efforts, or information or data collection requests, including, but not limited to, the provision of any information required for the assessment or evaluation of any activities within their grant agreement. This includes any assessments, audits, or investigations conducted by DHS, the Office of the Inspector General, or the U.S. Government Accountability Office (GAO). C. Reporting Requirements Reporting requirements must be met throughout the life of the grant (refer to the program guidance and the special conditions found in the award package for a full explanation of these requirements). Any reports or documents prepared as a result of this grant shall be in compliance with Federal "plain English" policies, directives, etc. Please note that PARS contains edits that will prevent access to funds if reporting requirements are not met on a timely basis. 1. Federal Financial Report (FFR) - required quarterly. Obligations and expenditures must be reported on a quarterly basis through the FFR (SF -425), which is due within 30 days of the end of each calendar quarter (e.g., for the quarter ending March 31, the FFR is due no later than April 30). A report must be submitted for every quarter of the period of performance, including partial calendar quarters, as well as for periods where no grant activity occurs. Future awards and fund draw downs may be withheld if these reports are delinquent. The final FFR is due 90 days after the end date of the performance period. OMB has directed that the FFR SF -425 replace the use of the SF -269, SF -269A, SF -272, and SF -272A, which are no longer available as of October 1, 2009. The SF -425 is intended to provide Federal agencies and grant recipients with a standard format and consistent reporting requirements throughout the government. FFRs must be filed online through PARS. Reporting periods and due dates: 35 55A -41 • October 1 — December 31; Due January 30 • January 1 — March 31; Due April 30 • April 1 — June 30; Due July 30 • July 1 — September 30; Due October 30 2. Semi - Annual Assistance Progress Report (SAPR). Following an award, the awardees will be responsible for providing updated obligation and expenditure information on a semi - annual basis. The applicant is responsible for completing and submitting the SAPR reports. The awardee should include a statement in the narrative field of the SAPR that reads: See BSIR The SAPR is due within 30 days after the end of the reporting period (July 30 for the reporting period of January 1 through June 30; and January 30 for the reporting period of July 1 though December 31). Future awards and fund drawdowns may be withheld if these reports are delinquent. SAPRs must be filed online at httos: / /prants.oiP.usdoi.gov. Guidance and instructions can be found at httos: // grants. oio .usdoj.gov /gmsHelp /index.html. Required submission: SAPR (due semi - annually). 3. Initial Strategy Implementation Plan (ISIP). Following an award, the awardees will be responsible for providing updated obligation and expenditure information to meet the pass- through requirement. The applicable SAAs are responsible for completing and submitting the ISIP online. Required submission: ISIP (due within 45 days of the award date). 4. Biannual Strategy Implementation Reports (BSIR). Following an award, the awardees will be responsible for providing updated obligation and expenditure information on a semi - annual basis. The applicable SAAs are responsible for completing and submitting the BSIR reports which is a component of the SAPR. The BSIR submission will satisfy the narrative requirement of the SAPR. SAAs are still required to submit the SAPR with a statement in the narrative field that reads: See BSIR. The BSIR is due within 30 days after the end of the reporting period (July 30 for the reporting period of January 1 through June 30; and January 30 for the reporting period of July 1 though December 31). Updated obligations and expenditure information must be provided with the BSIR to show progress made toward meeting strategic goals and objectives. Future awards and fund drawdowns may be withheld if these reports are delinquent. Required submission: BSIR (due semi - annually). 36 55A -42 5. Exercise Evaluation and Improvement. Exercises, implemented with grant funds, should be capabilities and performance -based and should evaluate performance of the targeted capabilities required to respond to the exercise scenario. Guidance related to exercise evaluation and the implementation of improvements is defined in the Homeland Security Exercise and Evaluation Program located at https://hseel).dhs.gov. Grant recipients must report on scheduled exercises and ensure that an After Action Report (AAR) and Improvement Plan (IP) are prepared for each exercise conducted with FEMA support (grant funds or direct support) and submitted to the FEMA Grants and preparedness Community of Interest (COI) on the Homeland Security Information Network (HSIN) within 90 days following completion of the exercise. The AAR documents the demonstrated performance of targeted capabilities and identifies recommendations for improvements. The IP outlines an exercising jurisdiction(s) plan to address the recommendations contained in the AAR. At a minimum, the IP must identify initial action items and be included in the final AAR. Guidance for the development of AARs and IPs is provided in the HSEEP manual. Required submissions: AARs and IPs (as applicable). 6. Financial and Compliance Audit Report. Recipients that expend $500,000 or more of Federal funds during their fiscal year are required to submit an organization - wide financial and compliance audit report. The audit must be performed in accordance with GAO's Government Auditing Standards, located at http: / /www.gao.govlgovaudlybk0l.htm, and OMB CircularA -133, Audits of States, Local Governments, and Non - Profit Organizations, located at http://www.whitehouse.gov/omb /circulars /a133/al33.html. Audit reports are currently due to the Federal Audit Clearinghouse no later than nine months after the end of the recipient's fiscal year. In addition, the Secretary of Homeland Security and the Comptroller General of the United States shall have access to any books, documents, and records of recipients of FY 2010 IECGP assistance for audit and examination purposes, provided that, in the opinion of the Secretary or the Comptroller, these documents are related to the receipt or use of such assistance. The grantee will also give the sponsoring agency or the Comptroller, through any authorized representative, access to, and the right to examine all records, books, papers or documents related to the grant. The State shall require that sub - grantees comply with the audit requirements set forth in OMB CircularA -133. Recipients are responsible for ensuring that sub - recipient audit reports are received and for resolving any audit findings. 7. Monitoring. Grant recipients will be monitored periodically by FEMA staff, both programmatically and financially, to ensure that the project goals, objectives, performance requirements, timelines, milestone completion, budgets, and other related program criteria are being met. Programmatic monitoring may also include the Regional Federal Preparedness Coordinators, when appropriate, to ensure 37 55A -43 consistency of project investments with regional and national goals and policies, as well as to help synchronize similar investments ongoing at the Federal, State, and local levels. Monitoring will be accomplished through a combination of desk -based reviews and on -site monitoring visits. Monitoring will involve the review and analysis of the financial, programmatic, performance and administrative issues relative to each program and will identify areas where technical assistance and other support may be needed. The recipient is responsible for monitoring award activities, to include sub - awards, to provide reasonable assurance that the Federal award is administered in compliance with requirements. Responsibilities include the accounting of receipts and expenditures, cash management, maintaining of adequate financial records, and refunding expenditures disallowed by audits. 8. Grant Close -Out Process. Within 90 days after the end of the period of performance, grantees must submit a final FFR and final SAPR detailing all accomplishments throughout the project. After these reports have been reviewed and approved by FEMA, a close -out notice will be completed to close out the grant. The notice will indicate the project as closed, list any remaining funds that will be deobligated, and address the requirement of maintaining the grant records for three years from the date of the final FFR. The grantee is responsible for returning any funds that have been drawn down but remain as unliquidated on grantee financial records. Required submissions: (1) final SF -425, due 90 days from end of grant period; and (2) final SAPR, due 90 days from the end of the grant period. 38 55A -44 PART VII. FEMA CONTACTS This section describes several resources that may help applicants in completing a FEMA grant application. 1. Centralized Scheduling and Information Desk (CSID). CSID is a non - emergency comprehensive management and information resource developed by DHS for grants stakeholders. CSID provides general information on all FEMA grant programs and maintains a comprehensive database containing key personnel contact information at the Federal, State, and local levels. CSID can be reached by phone at (800) 368- 6498 or by e-mail at ASKCSIDa- dhs.gov, Monday through Friday, 8:00 a.m. — 6:00 p.m. EST. 2. National Exercise Division (NED). The NED within the FEMA National Preparedness Directorate maintains program management for the Homeland Security Exercise and Evaluation Program ( HSEEP). All questions pertaining to HSEEP may be addressed to hseep .fema.gov or contact the NED at (202) 786- 9873. 3. Homeland Security Preparedness Technical Assistance Program and Planning Support ( HSPTAP). The provides direct support assistance on a first -come, first - served basis (and subject to the availability of funding) to eligible organizations to enhance their capacity and preparedness to prevent, protect against, respond to, and recover from terrorist and all hazard threats. In addition to the risk assessment assistance already being provided, FEMA also offers a variety of other direct support assistance programs. The HSPTAP also provides access to planning support. The planning support aids jurisdictions by increasing their understanding of the complex issues faced in planning for various hazards and threats. This support includes leveraging subject - matter experts from around the country as well as enabling knowledge transfer from jurisdiction to jurisdiction. More information can be found at http:// www .fema.govlaboutldivisions/pppa to shtm or by e- mailing FEMA- TAReguest(a)-fema.gov or NPD- planningCa)_dhs.gov. 4. Lessons Learned Information Sharing (LLIS) System. LLIS is a national, online, secure website that houses a collection of peer - validated lessons learned, best practices, and other relevant homeland security documents. LLIS facilitates improved preparedness nationwide by providing response professionals with access 39 55A -45 to a wealth of validated front -line expertise on effective planning, training, equipping, and operational practices for homeland security. The LLIS website also includes a national directory of homeland security officials, as well as an updated list of homeland security exercises, events, and conferences. Additionally, LLIS includes online collaboration tools, including secure email and message boards, where users can exchange information. LLIS uses strong encryption and active site monitoring to protect all information housed on the system. The LLIS website can be found at: http: / /www.LLlS..qov. 5. Information Bulletins. Information Bulletins (IBs) provide important updates, clarifications, and policy statements related to FEMA preparedness grant programs. Grantees should familiarize themselves with the relevant publications. Information Bulletins can be found at: http:// www. fema.gov/ government grantlbulletinslindex.shtm. 6. Information Sharing Systems. FEMA encourages all State, regional, local, and tribal entities using FY 2010 funding in support of information sharing and intelligence fusion and analysis centers to leverage available Federal information sharing systems, including Law Enforcement Online (LEO) and the Homeland Security Information Network (HSIN). For additional information on LEO, contact the LEO Program Office at leoprogramoffice(a)-leo.gov or (202) 324 -8833. For additional information on HSIN and available technical assistance, contact the HSIN Help Desk at (703) 674 -3003. 7. The Office of Emergency Communications (OEC) Technical Assistance Catalog. The Catalog describes the services available to requesting jurisdictions or organizations through the OEC Interoperable Communications Technical Assistance Program. These services, which are provided at no cost, include instruction and assistance with the planning, governance, operational, and technical aspects of developing and implementing interoperable communications initiatives. All OEC technical assistance services may be combined or tailored to meet the specific needs of the requesting organization. The Catalog also contains a technical assistance request form and instructions on how to complete and submit a request. It can be found at http:// www. safecomprogram. .qovISAFECOMIstatewideplannincll 8. SAFECOM Reference Library. Detailed information that can assist in technical, planning, training and exercise, and regulatory related communications efforts can be found on the SAFECOM website at www.safecomprogram.gov. 9. GSA's State and Local Purchasing Programs. The GSA offers two efficient and effective procurement programs for State and local governments to purchase products and services to fulfill homeland security and other technology needs. The GSA Schedules (also referred to as the Multiple Award Schedules and the Federal Supply Schedules) are long -term, indefinite delivery, indefinite quantity, government - wide contracts with commercial firms of all sizes. .I ►; •� • Cooperative Purchasing Program Cooperative Purchasing, authorized by statute, allows State and local governments to purchase a variety of supplies (products) and services under specific GSA Schedule contracts to save time, money, and meet their everyday needs and missions. The Cooperative Purchasing program allows State and local governments to purchase alarm and signal systems, facility management systems, firefighting and rescue equipment, law enforcement and security equipment, marine craft and related equipment, special purpose clothing, and related services off of Schedule 84 and Information Technology products and professional services off of Schedule 70 and the Consolidated Schedule (containing IT Special Item Numbers) only. Cooperative Purchasing for these categories is authorized under Federal law by the Local Preparedness Acquisition Act (Public Law 110 -248) and Section 211 of the E- Government Act of 2002 (Public Law 107- 347). Under this program, State and local governments have access to GSA Schedule contractors who have voluntarily modified their contracts to participate in the Cooperative Purchasing program. The GSA provides a definition of State and local governments as well as other vital information under the frequently asked questions section on its website at: http: / /www. gsa.,qovlcooperativepurchasing. Disaster Recovery Purchasing Program GSA plays a critical role in providing disaster recovery products and services to Federal agencies. Now State and Local Governments can also benefit from the speed and savings of the GSA Federal Supply Schedules. Section 833 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109 -364) amends 40 U.S.C. §502 to authorize GSA to provide State and local governments the use of ALL GSA Federal Supply Schedules for purchase of products and services to be used to facilitate recovery from a major disaster declared by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act or to facilitate recovery from terrorism or nuclear, biological, chemical, or radiological attack. Products and services being purchased to facilitate recovery from one of the above listed events, may be purchased both in advance of and in the aftermath of a major disaster, as long as the products and services being purchased, will be used to facilitate recovery. GSA provides additional information on the Disaster Recovery Purchasing Program website at http: //www.gsa.gov/disasterrecoverv. State and local governments can find a list of contractors on GSA's website, http ://www.gsaelibrary.asa.goov, denoted with a PuRcH or symbol. 41 55A -47 Assistance is available from GSA on the Cooperative Purchasing and Disaster Purchasing Program at the local and national levels. For assistance at the local level, visit http: / /www.gsa.govlcsd to find a local customer service director in your area. For assistance at the national level, contact Tricia Reed at tricia.reed(a�gsa.gov or (571) 259 -9921. More information is available on all GSA State and local programs at: www.gsa.gov /stateandlocaL 42 . •1 •� PART VIII. OTHER INFORMATION IECGP Overview The IECGP Investment Justification must provide a detailed description of the proposed use of the FY 2010 IECGP funds, including the intended planning, training, and exercise initiatives for improving interoperable emergency communications. The State or territory may propose activities at a local level, as well as activities that have statewide application. When proposing FY 2010 IECGP projects, the SAA must consider the following key factors: • Alignment with the SCIP. Grantees must demonstrate alignment between proposed IECGP projects and the SCIPs (specifically, goals, objectives, and specific initiatives to address interoperable emergency communications gaps). IECGP Funding Objectives and Priority Groups one and two. Grantees must prioritize and select projects consistent with IECGP funding objectives: 1) Priority Group One, Gaps in Governance and Common Planning and Operational Protocols; and 2) Priority Group Two, Emergency Responder Skills and Capabilities. For State- or territory-level projects, Priority Group One objectives must be prioritized over Priority Group Two objectives. Local or tribal pass- through recipient projects can be selected from either Priority Group. Equipment purchase. If an SAA and SWIC /SCIP POC certifies that its State, territory, and /or pass- through recipients have fulfilled all of the objectives of Priority Groups one and two, the State, territory, and /or pass- through recipients have the flexibility to use any remaining IECGP funds for purchase of interoperable emergency communications equipment or other costs associated with maintaining existing interoperable emergency communications equipment. • Grant program requirements. Grantees must meet the minimum 80 percent pass- through to local or tribal government entities. Note: SAAs must coordinate with the SWIC /SCIP POC to ensure IECGP program requirements are met. The SWIC /SCIP POC must coordinate with the SIGB and the appropriate SCIP stakeholders and committees at the State, regional, local, and tribal levels of government to ensure support for the projects selected. 43 Further, per the 9/11 Act, States and territories are required to report to OEC annually on the use of grant funds in order to track their progress in implementing the SCIPs and achieving interoperability at the city, county, regional, State, and interstate levels. To assist in the development of IECGP Investment Justifications, States and territories can refer to the IECGP Program Guidance and Application Kit, as well as any follow -up application reference materials as needed. The IECGP Investment Justification must include an overall Portfolio Narrative and Portfolio Budget, as well as specific Project Outline(s). IECGP projects must be outlined using the Project Outline Template. Portfolio Narrative: (not to exceed 1 page) • Overview of State or territory's interoperable emergency communications priorities and needs for planning, training, and exercises in FY 2010; • Overview of the State's or territory's interoperable communications governance structure, including the existence of a SWIC; o Describe the methodology used for prioritizing FY 2010 IECGP projects and the stakeholders involved in that prioritization. • Summary of the agencies involved in IECGP initiatives (e.g., State, local, tribal) and a description of their involvement. • Summary and justification of anticipated M&A expenditures. 55A -50 Portfolio Budget: (not to exceed 1 page) Include a breakdown of all FY 2010 IECGP funds by project name and the M&A amount withheld at the State or territory level. In addition, the State or territory must outline how it intends to meet the pass- through requirement. The pass- through requirement will be monitored via the Grants Reporting Tool (GRT) throughout the grant's period of performance. Portfolio Budget Total Cost State or territory M&A (up to 5 %) $XX If the State or territory intends to use M&A funding, it must provide a summary and justification of anticipated expenditures in the Portfolio Narrative. State or territory supported projects $XX Project Name: E.g., Update SCIP Project Cost: $XX Project Name: E.g., Hire SWIC Project Cost: $XX Local pass- through projects (80 %) $XX E.g., Interoperable Project Name: Communications Training and Project Cost: $XX Exercises Project Name: E.g., Developing Standard Operating Procedures Project Cost: $XX Total IECGP Funds $XX IECGP Objective: (not to exceed a % page) Briefly describe the project as a whole and its primary objective. Include a description of the interoperable emergency communications gap to be filled and the end result/outcome(s) of the project.5 Alignment to IECGP Priority Groups: Please select the Priority Group and Objective(s) to which this project aligns: ❑ Priority Group One: Gaps in Governance and Common Operational Planning and Protocols. ❑ Establishment of formal interoperable emergency communications governance structures; ❑ Establishment of common planning and operational protocols. Or: ❑ Priority Group Two: Emergency Responder Skills and Capabilities Development through Training and Exercises. ❑ Enhancement of emergency responder skills and capabilities through training and exercises. s Note that if this is a Priority 1 project directed at personnel, applicants must explain how they are working to integrate new staff into the State budget in future years to maintain the capability, as appropriate. :fib 55A -51 For State /territory -level Projects Only: Per FY 2010 IECGP funding objectives, State and territory level applicants are expected to prioritize Priority Group One, Leadership and Governance and Common Planning and Operational Protocols, objectives over Priority Group two. If applicants are unable to check all of the following boxes, it is expected that FY 2010 IECGP funds be directed to meet these minimum expectations prior to choosing Priority Group Two projects. ❑ The State or territory has a formal statewide interoperable emergency communications governance committee, consistent with the FY 2007 Statewide Planning Criteria, which has: ❑ Representation from each public safety discipline; ❑ Representation across each level of government: Federal, State, local, and tribal (if applicable); ❑ Representation from each region within the State or territory (as applicable, and /or defined in the SCIP); ❑ Executive or legislative authority and a formal charter. Please also verify the following: ❑ The State or territory has hired a full -time SWIC with sufficient capabilities /resources (e.g., project management, technical expertise) to effectively execute his /her mission, consistent with the FY 2007 Statewide Planning Criteria. If not, please provide an explanation of why and how the State or territory intends on ensuring SCIP implementation efforts are effectively coordinated statewide. ❑ The State or territory has developed SOPs that demonstrate consistent use of interoperability channels, plain language protocols, common channel naming; and ❑ The State or territory has developed SOPS that demonstrate compliance with NIMS ICS For State /territory and Local level Proiects: Per FY 2010 IECGP funding objectives, the applicant has the flexibility to use IECGP funds to purchase interoperable emergency communications equipment if and only if it has achieved or will achieve all of the above listed expectations for Priority Group One and the following Priority Group objectives: ❑ The State or territory has completed a State -level multi jurisdictional, multi- agency training and exercise event. (Not applicable to pass- through recipients) If the State, territory, and /or pass- through recipient plans to use IECGP funds to purchase interoperable emergency communications equipment, it must certify the following: ❑ The State, territory, and /or pass- through recipient certifies that it has achieved or will achieve both Priority Group One and two objectives within twelve months of receipt of FY 2010 IECGP funds. 46 55A -52 Alignment to SCIP Goals, Objectives, and /or Initiatives: (not to exceed 1 page) Identify how the project aligns to the SCIP: 1) needs and /or gaps identified; 2) goals and objectives; and 3) specific initiative(s). Describe where the need /gap, goal, objective, and /or initiative was identified (provide specific header and page number references). Priority and Need E. g., Hire Interoperability Coordinator Related Goal(s) Goal X, (SCIP Section x: Page x): Insert description of the goal(s) Related Objective(s) Objective X, (SCIP Section x: Page x): Insert description of the objective(s) Related Strategic Initiative(s) Strategic Initiative X, (SCIP Section x: Page x): Insert description of the initiative(s) Governance: (not to exceed a % page) Identify the governance structures in place that will support the development and implementation of the project. Explain how this objective will be communicated to the statewide interoperable emergency communications governance committee. Performance Measure(s) and Basis of Evaluation: (not to exceed a % page) Indicate the performance measure(s) that will be used to evaluate this project's impact and the basis for developing the measure(s). The performance measures should focus on quantifiable outcomes. For example, an outcome could be: • Improved coordination between adjacent local jurisdictions or improved coordination between Federal, State, or local entities in the same location. • Exercise results demonstrating increased operability, increased inter - operability, or an increased area of coverage. Challenges /Risks: (not to exceed a % page) Identify any potential challenges to implementing this project. Examples of challenges and risks could include anything that could impact the schedule or cost, such as hiring an interoperability coordinator by a certain date, collection of Memoranda of Understanding, or completion of a related project. Project Budget: (not to exceed 1 page) Explain how the costs were estimated and justify the need for the costs. The applicant should break down the project budget by allowable cost category, and M &A, and the anticipated expenditures within each category. For clarification, please list out anticipated expenditures under each allowable cost category and M &A on separate lines. Note: If the applicant is proposing a project for the purchase of interoperable emergency communications equipment, the State or territory must include cost share information in the table below to demonstrate that it is in compliance with the 25% State cost share requirement. The information should include: • Amount of State (or local) cost share funding; • Source of cost share funding (e.g., State, local); and • Category of in -kind (e.g., donated volunteer services, salaries, equipment, or property or indirect costs) and /or cash cost share (e.g., State, local). 47 55A -53 To calculate cost share, the applicant must first determine the total project cost for equipment and then calculate the State and Federal shares respectively. The applicant should keep in mind that the total project cost does not equal the proposed amount of IECGP federal funding. For example, if a State is purchasing interoperable emergency communications equipment for a total cost of $100, 000, the State may apply for $75,000 (75% of total project cost) of federal IECGP grant funds if it provides $25,000 (25% of total project cost) of State or local cost share funds. Anticipated Expenditures (by Allowable Cost category) Cost Planning: E.g., Personnel $XX E.g., Contract Support $XX Total Planning Costs $XX Training: E.g., Number trained and training cost per person $XX Total Training Costs $XX Exercises: E.g., Overtime /Backfill $XX E.g., Travel. $XX Total Exercise Costs $XX Personnel Activities: E.g., Estimated Salary and Benefits $XX Total Personnel Costs $XX Equipment: E.g., Interoperable Emergency Communications Equipment and associated maintenance costs $XX Total Equipment Costs $XX Equipment Cost Share: (if applicable) Cost share amount (25% of total project cost) $XX Cost share source (E.g., State, local) Cost share category (E.g., cash, in -kind) M&A (up to 5 %): $XX E.g., Hiring of staff to assist with the management of IECGP $XX Total Project Cost: $XX Eli- annual Activities: For every six -month period, identify project milestones, budget milestones, and expected outcomes. This section should provide a snapshot of where the grantee expects to be in terms of progress toward outcomes and expenditures for the given time period, and show progress toward completion by the end of the grant period of performance. Project milestones should reference the major project milestones listed above and 48 55A -54 any other significant milestones for the reporting period (e.g. "At six months, we will have hired a SWIC. ") Budget milestone should reflect the recipient's expenditure plan and expenditures should be related to major project milestones (e.g. "At six months, multi jurisdictional tactical plan will have been started under leadership of new SWIC) Outcomes may include information such as the Governing Board including certain stakeholders or addressing certain issues; the exercise addressing increased operability or interoperability; or the training resulting in x number of people trained to x capacity. Actual progress data will be identified through input in the Grants Reporting Tool as well as through programmatic monitoring Expected Outcome: (not to exceed a % page) 1St Bi- annual Activity (Year 1) Expected Outcome: (not to exceed a/< page) 2nd Bi- annual Activity (Year 1) Expected Outcome: (not to exceed a % page) 3`d Bi- annual Activity (Year 2) Expected Outcome: (not to exceed a/< page) 4th Bi- annual Activity (Year 2) Expected Outcome: (not to exceed a % page) 5th Bi- annual Activity (Year 3) Expected Outcome: (not to exceed a % page) 6th Bi- annual Activity (Year 3) 49 55A -55 Allowable Cost Matrix. Allowable costs under IECGP may include, but are not limited to, the types of activities that are checked [✓] below. An allowable cost activity must be related to IECGP activities. These activities are aligned with those described in other DHS grant guidance (e.g., the HSGP) to offer eligible IECGP applicants a comparison of allowable activities. Program lECGP Planning Costs Public education and outreach Intero erable emergency communications education and outreach Develop and implement homeland security support programs and adopt ongoing DHS National Initiatives, including State Preparedness Reports, related to interoperable emergency communications Develop and enhance interoperable emergency communications plans, including SCIP, TICP, and /or local /regional plans that align with SCIP and /or TICP goals objectives or initiatives Develop and enhance interoperable emergency communications protocols. This may include activities such as developing SOPs, programming interoperability channels, instituting common channel naming and plain language protocols, developing fleet maps, among others. Develop and /or strengthen interoperable emergency communications assessments (including requirements analyses) and /or inventories Hiring full- or part -time staff or contract/consultants to assist with planning activities (not for the purpose of hiring public safety personnel fulfilling traditional public safety duties) as it relates to IECGP. This may include State, regional, or local interoperability coordinator(s), and /or project manager(s) /subject matter expert(s) for the SWIC function. Conferences to facilitate planning activities, whether local, interstate, regional, or national Supplies and materials required to conduct planning activities Travel/ per diem related to support planning activities Overtime and backfill costs IAW operational Cost Guidance Conduct assessments and develop plans to transition to narrowband operation Costs Develop, deliver, and evaluate training Overtime and backfill for emergency preparedness and response personnel attending interoperable emergency communications training classes as it relates to IECGP Training workshops and conferences Full- or part-time staff or contractors /consultants Travel Supplies Training related to narrowband transition Tuition for higher education Other items 50 55A -56 Overtime and backfill for emergency preparedness and response personnel attending interoperable emergency communications exercises classes as it relates to IECGP Implementation of HSEEP, as it pertains to interoperable emergency communications Travel Supplies Other items R. . Develop requirements definition and analysis Collect asset inventory Conduct technology alternatives and feasibility analyses Develop system design (e.g., engineering or site surveys) Install and build -out communications system infrastructure Distribute portable and mobile equipment Develop deployment and standard operating rocedures Develop fleetmap for local and statewide intero erabilit Conducts stem acceptance testing Conduct certification and accreditation Manage interoperability assets through inventoDming equipment Develop service -level agreement(s) and payment, including operations and maintenance considerations Transitions stems orequipment to narrowband operation .. Personal Protective Equipment Explosive Device Mitigation and Remediation Equipment CBRNE Operational Search and Rescue Equipment Information Technology Cyber Security Enhancement Equipment Intero erable Communications Equipment Detection Equipment Decontamination Equipment Medical Supplies and Limited Pharmaceuticals Power Equipment CBRNE Reference Materials CBRNE Incident Response Vehicles Terrorism Incident Prevention Equipment Physical Security Enhancement Equipment Inspection and Screening Systems Agriculture Terrorism Prevention, Response, and Mitigation Equipment CBRNE Response Watercraft CBRNE Aviation Equipment CBRNE Logistical Support Equipment Intervention Equipment Other Authorized Equipment Training related to narrowband transition Tuition for higher education Other items For additional information regarding FY 2010 IECGP equipment categories, please refer to the web -based version of the Authorized Equipment List (AEL) on the Responder Knowledge Base (RKB), at lNt/)s: - uiriv. rkb. us. 51 55A -57 52 4;111�96i FY 2010 Match Guidance Introduction Determining match for the purposes of submitting grant applications to any Federal Agency should be a coordinated process at the State and local level. It is highly recommended that programmatic staff at the State and local level consult with their financial staff prior to submitting any grant applications, especially those that identify cash or in -kind match. Types of Match 1. Cash Match. Cash (hard) match includes non - Federal cash spent for project - related costs, according to the program guidance. Allowable cash match must only include those costs which are in compliance with 2 CFR Part 225, Cost Principles for State, Local, and Indian Tribal Governments (OMB Circular A -87) and 44 CFR Part 13, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. 2. In -kind Match. In -kind (soft) match includes, but is not limited to, the valuation of in -kind services. "In- kind" is the value of something received or provided that does not have a cost associated with it. For example, if in -kind match (other than cash payments) is permitted, then the value of donated services could be used to comply with the match requirement. Also, third party in -kind contributions may count toward satisfying match requirements provided the grantee receiving the contributions expends them as allowable costs in compliance with 2 CFR Part 225, Cost Principles for State, Local, and Indian Tribal Governments (OMB Circular A -87) and 44 CFR Part 13, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. Definitions • Matching or Cost Sharing. This means the value of the third party in -kind contributions and the portion of the costs of a federally- assisted project or program not borne by the Federal Government. All cost - sharing or matching funds claimed against a FEMA grant by State, local or Tribal governments must meet the requirements of the program guidance and /or program regulations, 44 CFR § 13, and 2 CFR § 225. • Cash Match (hard). This includes cash spent for project - related costs under a grant agreement. Allowable cash match must include only those costs which are allowable with Federal funds in compliance with the program guidance and /or program regulations, 44 CFR § 13, and 2 CFR § 225. • In -kind Match (soft). This means contributions of the reasonable value of property or services in lieu of cash which benefit a federally- assisted project or program. This type of match may only be used if not restricted or prohibited by program statute, regulation or guidance and must be supported with source documentation. Only property or services that are in compliance with program 53 55A -59 guidance and /or program regulations, 44 CFR § 13, and 2 CFR § 225, are allowable. Basic Guidelines • For costs to be eligible to meet matching requirements, the costs must first be allowable under the grant program. • The costs must also be in compliance with all Federal requirements and regulations (e.g., 44 CFR Part 13 and 2 CFR Part 225); the costs must be reasonable, allowable, allocable, and necessary. • Records for all expenditures relating to cost sharing or matching must be kept in the same manner as those for the grant funds. o The following documentation is required for third -party cash and in -kind contributions: Record of donor; Dates of donation; Rates for staffing, equipment or usage, supplies, etc.; Amounts of donation; and Deposit slips for cash contributions. According to 44 CFR § 13.24, this documentation is to be held at the Applicant and /or subapplicant level. • Except as provided by Federal statute, a cost sharing or matching requirement may not be met by costs borne by another Federal grant. • The source of the match funds must be identified in the grant application. • Every item must be verifiable, i.e., tracked and documented. • Any claimed cost share expense can only be counted once. Examples (For additional examples of match, please contact your State finance office) • The Emergency Management Director has 50% of his /her salary paid from State funds and 50% paid from Federal grant funds, but he /she provides 60% effort in the Federal grant program that only pays 50% salary. The additional 10% of effort/time toward the Federal grant program can be claimed as soft match. All record keeping requirements to prove the 60% time allocation apply. • Non - Federally funded equipment or facilities used during exercises can be claimed as soft match, but only at the time of donation. For example, only the fair market price for the use of the facility for the period of the exercise can be claimed as match. • Third party in -kind contributions of salary, travel, equipment, supplies and other budget areas that are from third party sources must be in compliance with 44 CFR § 13.24, Matching or Cost Sharing. These types of contributions include voluntary contributions such as emergency personnel, lawyers, etc., who donate their time to a Federal grant program. The normal per hour rate for these professionals (acting in their professional capacity) can be used to meet the matching requirement. The value of the services provided is taken into consideration when determining the value of the contribution - not who is providing the service. For example, if a lawyer is volunteering his services to assist flood victims in filing legal paper work, the lawyer's normal hourly rate is allowable. If the lawyer is volunteering his services and is working in a soup 54 ,4:��_Q:Oilk, kitchen, the lawyer's hourly rate would not be applicable; it would be the hourly rate for a soup kitchen worker. Governing Provisions • 44 CFR Part 13, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments o Reference 44 CFR § 13.24, Matching or Cost Sharing 2 CFR Part 225, Cost Principles for State, Local, and Indian Tribal Governments (OMB Circular A -87) • Program Guidance and /or Program Regulations 44 CFR Part 13, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments 44 CFR § 13.24, Matching or Cost Sharing. (a) Basic rule: Costs and contributions acceptable. With the qualifications and exceptions listed in paragraph (b) of this section, a matching or cost sharing requirement may be satisfied by either or both of the following: (1) Allowable costs incurred by the grantee, subgrantee or a cost -type contractor under the assistance agreement. This includes allowable costs borne by non - Federal grants or by others cash donations from non - Federal third parties. (2) The value of third party in -kind contributions applicable to the period to which the cost sharing or matching requirements applies. (b) Qualifications and exceptions: (1) Costs borne by other Federal grant agreements. Except as provided by Federal statute, a cost sharing or matching requirement may not be met by costs borne by another Federal grant. This prohibition does not apply to income earned by a grantee or subgrantee from a contract awarded under another Federal grant. (2) General revenue sharing. For the purpose of this section, general revenue sharing funds distributed under 31 U.S.C. 6702 are not considered Federal grant funds. (3) Cost or contributions counted towards other Federal costs - sharing requirements. Neither costs nor the values of third party in -kind contributions may count towards satisfying a cost sharing or matching requirement of a grant agreement if they have been or will be counted towards satisfying a cost sharing or matching requirement of another Federal grant agreement, a Federal procurement contract, or any other award of Federal funds. (4) Costs financed by program income. Costs financed by program income, as defined in § 13.25, shall not count towards satisfying a cost sharing or matching requirement unless they are expressly permitted in the terms of the assistance agreement (This use of general program income is described in § 13.25 (g)). 55 55A -61 (5) Services or property financed by income earned by contractors. Contractors under a grant may earn income from the activities carried out under the contract in addition to the amounts earned from the party awarding the contract. No costs of services or property supported by this income may count toward satisfying a cost sharing or matching requirement unless other provisions of the grant agreement expressly permit this kind of income to be used to meet the requirement. (6) Records. Costs and third party in kind contributions counting towards satisfying a cost sharing or matching requirement must be verifiable from the records of grantees and subgrantees or cost- type contractors. These records must show how the value placed on third party in -kind contributions was derived. To the extent feasible, volunteer services will be supported by the same methods that the organization uses to support the allocability of regular personnel costs. (7) Special standards for third party in kind contributions. (i) Third party in kind contributions count towards satisfying a cost sharing or matching requirement only where, if the party receiving the contributions were to pay for them, the payments would be allowable costs. (ii) Some third party in -kind contributions are goods and services that if the grantee, subgrantee, or contractor receiving the contribution had to pay for them, the payments would have been an indirect costs. Costs sharing or matching credit for such contributions shall be given only if the grantee, subgrantee, or contractor has established, along with its regular indirect cost rate, a special rate for allocating to individual projects or programs the value of the contributions. (iii) A third party in -kind contribution to a fixed -price contract may count towards satisfying a cost sharing or matching requirement only if it results in: (A) An increase in the services or property provided under the contract (without additional cost to the grantee or subgrantee); or (B) A cost savings to the grantee or subgrantee. (iv) The values placed on third party in kind contributions for cost sharing or matching purposes will conform to the rules in the succeeding sections of this part. If a third party in -kind contribution is a type not treated in those sections, the value placed upon it shall be fair and reasonable. (c) Valuation of donated services: (1) Volunteer services. Unpaid services provided to a grantee or subgrantee by individuals will be valued at rates consistent with those ordinarily paid for similar work in the grantee's or subgrantee's organization. If the grantee or subgrantee does not have employees performing similar work, the rates will be consistent with those ordinarily paid by other employers for similar work in the same labor market. In either case, a reasonable amount for fringe benefits may be included in the valuation. 56 * (2) Employees of other organizations. When an employer other than a grantee, subgrantee, or cost -type contractor furnishes free of charge the services of an employee in the employee's normal line of work, the services will be valued at the employee's regular rate of pay exclusive of the employee's fringe benefits and overhead costs. If the services are in a different line of work, paragraph(c)(1) of this section applies. (d) Valuation of third party donated supplies and loaned equipment or space: (1) If a third party donates supplies, the contribution will be valued at the market value of the supplies at the time of donation. (2) If a third party donates the use of equipment or space in a building but retains title, the contribution will be valued at the fair rental rate of the equipment or space. (e) Valuation of third party donated equipment, buildings, and land. If a third party donates equipment, buildings, or land, and title passes to a grantee or subgrantee, the treatment of the donated property will depend upon the purpose of the grant or subgrant, as follows: (1) Awards for capital expenditures. If the purpose of the grant or subgrant is to assist the grantee or subgrantee in the acquisition of property, the market value of that property at the time of donation may be counted as cost sharing or matching, (2) Other awards. If assisting in the acquisition of property is not the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of this section apply: (i) If approval is obtained from the awarding agency, the market value at the time of donation of the donated equipment or buildings and the fair rental rate of the donated land may be counted as cost sharing or matching. In the case of a subgrant, the terms of the grant agreement may require that the approval be obtained from the Federal agency as well as the grantee. In all cases, the approval may be given only if a purchase of the equipment or rental of the land would be approved as an allowable direct cost. If any part of the donated property was acquired with Federal funds, only the non- Federal share of the property may be counted as cost sharing or matching. (ii) If approval is not obtained under paragraph (e)(2)(i) of this section, no amount may be counted for donated land, and only depreciation or use allowances may be counted for donated equipment and buildings. The depreciation or use allowances for this property are not treated as third party in- kind contributions. Instead, they are treated as costs incurred by the grantee or subgrantee. They are computed and allocated (usually as indirect costs) in accordance with the cost principles specified in § 13.22, in the same way as depreciation or use allowances for purchased equipment and buildings. The amount of depreciation or use allowances for donated equipment and buildings is based on the property's market value at the time it was donated. (f) Valuation of grantee or subgrantee donated real property for construction/ acquisition. If a grantee or subgrantee donates real property for a construction or 57 �t: facilities acquisition project, the current market value of that property may be counted as cost sharing or matching. If any part of the donated property was acquired with Federal funds, only the non - Federal share of the property may be counted as cost sharing or matching. (g) Appraisal of real property. In some cases under paragraphs (d), (e), and (f) of this section, it will be necessary to establish the market value of land or a building or the fair rental rate of land or of space in a building. In these cases, the Federal agency may require the market value or fair rental value be set by an independent appraiser, and that the value or rate be certified by the grantee. This requirement will also be imposed by the grantee on subgrantees. 2 CFR Part 225, Cost Principles for State, Local, and Indian Tribal Governments (OMB Circular A -87) Basic Guidelines 1. Factors affecting allowability of costs. To be allowable under Federal awards, costs must meet the following general criteria: a. Be necessary and reasonable for proper and efficient performance and administration of Federal awards. b. Be allocable to Federal awards under the provisions of 2 CFR Part 225. c. Be authorized or not prohibited under State or local laws or regulations. d. Conform to any limitations or exclusions set forth in these principles, Federal laws, terms and conditions of the Federal award, or other governing regulations as to types or amounts of cost items. e. Be consistent with policies, regulations, and procedures that apply uniformly to both Federal awards and other activities of the governmental unit. f. Be accorded consistent treatment. A cost may not be assigned to a Federal award as a direct cost if any other cost incurred for the same purpose in like circumstances has been allocated to the Federal award as an indirect cost. g. Except as otherwise provided for in 2 CFR Part 225, be determined in accordance with generally accepted accounting principles. h. Not be included as a cost or used to meet cost sharing or matching requirements of any other Federal award in either the current or a prior period, except as specifically provided by Federal law or regulation. i. Be the net of all applicable credits. j. Be adequately documented. 2. Reasonable costs. A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost. The question of reasonableness is particularly important when governmental units or components are predominately federally- funded. In determining reasonableness of a given cost, consideration shall be given to: 58 55A -64 a. Whether the cost is of a type generally recognized as ordinary and necessary for the operation of the governmental unit or the performance of the Federal award. b. The restraints or requirements imposed by such factors as: Sound business practices; arm's - length bargaining; Federal, State and other laws and regulations; and, terms and conditions of the Federal award. c. Market prices for comparable goods or services. d. Whether the individuals concerned acted with prudence in the circumstances considering their responsibilities to the governmental unit, its employees, the public at large, and the Federal Government. e. Significant deviations from the established practices of the governmental unit which may unjustifiably increase the Federal award's cost. 3. Allocable costs. a. A cost is allocable to a particular cost objective if the goods or services involved are chargeable or assignable to such cost objective in accordance with relative benefits received. b. All activities which benefit from the governmental unit's indirect cost, including unallowable activities and services donated to the governmental unit by third parties, will receive an appropriate allocation of indirect costs. c. Any cost allocable to a particular Federal award or cost objective under the principles provided for in 2 CFR Part 225 may not be charged to other Federal awards to overcome fund deficiencies, to avoid restrictions imposed by law or terms of the Federal awards, or for other reasons. d. Where an accumulation of indirect costs will ultimately result in charges to a Federal award, a cost allocation plan will be required as described in Appendices C, D, and E to this part. 4. Applicable credits. a. Applicable credits refer to those receipts or reduction of expenditure -type transactions that offset or reduce expense items allocable to Federal awards as direct or indirect costs. Examples of such transactions are: Purchase discounts, rebates or allowances, recoveries or indemnities on losses, insurance refunds or rebates, and adjustments of overpayments or erroneous charges. To the extent that such credits accruing to or received by the governmental unit relate to allowable costs, they shall be credited to the Federal award either as a cost reduction or cash refund, as appropriate. b. In some instances, the amounts received from the Federal Government to finance activities or service operations of the governmental unit should be treated as applicable credits. Specifically, the concept of netting such credit items (including any amounts used to meet cost sharing or matching requirements) should be recognized in determining the rates or amounts to be charged to Federal awards. 67YI 55A -65 RESOLUTION NO. 2011 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER OR THE CHIEF OF POLICE TO ENTER INTO AN AGREEMENT WITH THE STATE OF CALIFORNIA EMERGENCY MANAGEMENT AGENCY FOR THE FY2010 INTEROPERABLE EMERGENCY COMMUNICATIONS GRANT AND TO ENTER INTO REIMBURSEMENT AGREEMENTS IN CONJUNCTION WITH THE GRANT 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 California Emergency Management Agency is responsible for implementing the United States Department of Homeland Security, Interoperable Emergency Communications Grant Program (IECGP). B. The FY 2010 IECGP provides governance, planning, training and exercise funding to carry out initiatives to improve interoperable emergency communications, including communications in collective response to natural disasters, acts of terrorism, and other man -made disasters. C. The City of Santa Ana has been awarded funding from the California Emergency Management Agency for the FY 2010 IECGP in the amount of $1,972,980. Section 2. The City Council of the City of Santa Ana hereby authorizes and directs the City Manager or the Chief of Police, or their designee(s), to accept and authorize the grant award from the California Emergency Management Agency for the FY 2010 IECGP in the amount of $1,972,980 to fund the following projects: A. Completion of Interoperable Field Operations Guides. B. Implementation of a 5 -year Communications Interoperability Strategic Plan. C. Creation of capability, evaluation, and technical reports. D. Provide support of SPA daily interoperable operations. E. Implementation of a Training and Exercise Plan. EXHIBIT 3 Resolution No. 2011 -XXX 55A-67 Page 1 of 3 Section 3. The City Council of the City of Santa Ana hereby authorizes and directs the Chief of Police or the City Manager to execute and submit all documents and take necessary action, for and on behalf of the City of Santa Ana, a public entity established under the laws of the State of California, for the purpose of obtaining federal financial assistance provided by the federal Department of Homeland Security and sub granted through the State of California. Section 4. The City Council of the City of Santa Ana hereby authorizes and directs the City Attorney to prepare and authorizes the Chief of Police or the City Manager to enter into reimbursement agreements for equipment, services, training, or exercises with cities and counties located in the Southern Planning Area and with and contractors /consultants providing such services and /or goods in conjunction with the FY 2010 IECGP. Section 5. The City Council of the City of Santa Ana hereby approves an Appropriation Adjustment recognizing the FY 2010 IECGP in the amount of $1,972,980 and appropriates the same in the FY 2010 IECGP expenditure accounts. Section 6. This Resolution shall take effect immediately upon its adoption by the City Council and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of —12011. APPROVED AS TO FORM: Office of the City Attorney Teresa L. Judd Assistant City Attorney Miguel A. Pulido Mayor Resolution No. 2011 -XXX 55A -68 Page 2 of 3 AYES: NOES: ABSTAIN: NOT PRESENT: Councilmembers Councilmembers Councilmembers Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2011 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana 1 0-�1 Resolution No. 2011 -XXX Page 3 of 3 55A -70 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: ADOPT A RESOLUTION AUTHORIZING THE IMPLEMENTATION OF A PARS TRUST PLAN FOR AFFECTED FORMER POA MEMBERS 1 CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s` Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Adopt a resolution authorizing the implementation of a Public Agency Retirement Services ( "PARS ") Supplementary Retirement Plan for twenty -five (25) POA retirees and designating PARS as the administrator of the Supplemental Plan and transferring funds to establish the Trust required under the Plan; 2. Authorize the City Manager and Clerk of the Council to execute the attached agreement with PARS to establish and administer the Plan for a period of five years with provision for year -to -year extensions, contingent upon Council approval, and to execute any other documents required to establish the trust and implement the Plan; 3. Appoint the Executive Director of Personnel Services, or her designee, as the City's Plan Administrator for the Plan, authorized to implement the Plan and to take additional actions as necessary to maintain the City's participation in the Plan, maintain compliance with any regulations regarding the Plan, and to administer the PARS Trust Supplementary Retirement Plan for said twenty -five (25) POA retirees, on behalf of the City. DISCUSSION In the Contract Extension to the Memorandum of Understanding between the City and the Santa Ana Police Officers Association (POA) for fiscal year 2010 -2011, the POA agreed to defer salary increases scheduled for July 1, 2009 and January 1, 2010, which resulted in significant savings to the City. However, it was agreed that members of the Association anticipated to retire during the term of the Extension would receive the salary increases per the original schedule and, in exchange, would participate in an unpaid furlough program equated to the monetary value of the increases they received. In August 2010, the City and the POA reached tentative agreement on another contract extension, which also deferred salary increases except to those employees with 55B -1 Resolution and Agreement with the Public Agency Retirement Services April 18, 2011 Page 2 a stated intention to retire during the term of the agreement, in exchange for participation in an unpaid furlough program. Before Council approved the second contract extension and 12 months after the first employee retired under the 2010 -11 extension, the California Public Employees Retirement System (CaIPERS) notified the City that this provision was not consistent with the principles concerning the awarding of pensions to public employees. Therefore, the City and POA negotiated an alternate method of providing a stipend to eligible employees that will reflect the actual salary they would have received upon retirement, and will comply with the agreement made by the City during the contract extension negotiations. Therefore, the City proposes the creation of a trust to be administered by Public Agency Retirement Services (PARS), a 27- year -old company that administers retirement plans for over 500 agencies in California. PARS will receive 5% annually to provide consultation and plan administration services to the City and the 25 POA employees who have retired from the City during the applicable periods of these contract extensions. No additional retirees will be eligible to participate in this supplementary retirement plan. FISCAL IMPACT First year costs are estimated to be $126,087 and ongoing annual costs are estimated to be $94,672. Funds are available under the liability account (08009051- 62300). The cost of this supplemental retirement program will be offset by a corresponding reduction in the City's PERS rate. t r Kathie G alez Executive Director Personnel Services Agency ARROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agenc�k At:-]Y� RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE IMPLEMENTATION OF A SUPPLEMENTARY RETIREMENT PLAN FOR TWENTY -FIVE (25) POLICE OFFICERS ASSOCIATION RETIREES, DESIGNATING PUBLIC AGENCY RETIREMENT SERVICES AS THE TRUST ADMINISTRATOR AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE RETIREMENT PLAN AND TRUST DOCUMENTS. 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 Public Employees' Retirement Law (PERL) permits the participation of public agencies and their employees in the California Public Employees' Retirement System (CaIPERS) by the execution of a contract, and sets forth the procedure by which said public agencies may amend and supplement such contract; and B. During contract negotiations between the City and the Santa Ana Police Officers Association (POA) for fiscal year 2010 -2011, it was agreed by the POA to defer salary increases scheduled for July 1, 2009 and January 1, 2010, except that members of the Association who stated their intention to retire from employment with the City during the term of the Extension would receive salary increases per the original schedule that would qualify for calculation in their retirement formulas and, in exchange for said salary increases, said members would participate in an unpaid furlough program equated to the monetary value of the received increases. Twenty -five (25) members of the Association timely stated their intention to retire, received the salary increases and participated in the furlough program; and C. The Public Agency Retirement System (PARS) is a professional entity that provides supplemental retirement plans to public employees and has agreed to develop a Supplementary Retirement Plan and Trust ( "the PARS Trust Supplementary Retirement Plan ") for the above - referenced twenty -five (25) POA retirees, supplementing the CalPERS retirement benefits and qualifying under the relevant sections of the Internal Revenue Code and the California Government Code. l : J Section 2. The City Council of the City of Santa Ana hereby authorizes the implementation of the PARS Trust Supplementary Retirement Plan for said twenty -five (25) POA retirees, as part of the City's Retirement Program. Section 3. The City Council hereby appoints PARS Trust as Trust Administrator and Record keeper for the Plan. Section 4. The City Council hereby authorizes the transfer of funds to a financial institution as agreed upon by PARS and the Plan Administrator as soon as administratively feasible. Section 5. The City Manager and the Executive Director of Personnel Services are hereby authorized to execute and submit the Administrative Services Agreement, Trust document and any other documents necessary to implement the PARS Trust Supplementary Retirement Plan for said twenty -five (25) POA retirees, on behalf of the City. Section 6. The City Council hereby appoints the Executive Director of Personnel Services, or her designee, as the City's Plan Administrator for the Plan. Section 7. The City's Plan Administrator is hereby authorized to implement the Plan and to take additional actions as necessary to maintain the City's participation in PARS, maintain compliance with any regulations regarding the Plan, and to administer the PARS Trust Supplementary Retirement Plan for said twenty -five (25) POA retirees, on behalf of the City. Section 8. If the City's Plan Administrator finds that the PARS Trust Supplementary Retirement Plan for said twenty -five (25) POA retirees must be limited under Section 415 of the Internal Revenue Code, then the Plan Administrator will implement replacement benefit programs at no additional cost to the City. Section 9. This Resolution shall take effect immediately upon its adoption. 55B -4 ADOPTED this APPROVED AS TO FORM: City Attorney's Office By: Joseph Straka Acting City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: day of , 2011. Councilmembers: Councilmembers: Councilmembers: Councilmembers: Miguel A. Pulido Mayor CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2011- to be the original resolution adopted by the City Council of the City of Santa Ana on Date: 55B -5 Clerk of the Council City of Santa Ana 6, DRAFT AGREEMENT FOR ADMINISTRATIVE SERVICES This agreement ( "Agreement ") is made this day of , 2011, between Phase II Systems, a corporation organized and existing under the laws of the State of California, doing business as Public Agency Retirement Services (hereinafter "PARS ") and the City of Santa Ana ( "Agency "). WHEREAS, Agency is desirous of retaining PARS, as Trust Administrator to the PARS Trust, to provide administrative and consulting services with respect to the qualified and non- qualified City of Santa Ana PARS Supplementary Retirement Plan (the "Plan "). NOW THEREFORE, the parties agree: Services. PARS will provide the services pertaining to the Plan as described in the exhibit attached hereto as "Exhibit IA" ( "Services ") in a timely manner, subject to the further provisions of this Agreement. 2. Fees for Services. PARS will be compensated for performance of the Services as described in the exhibit attached hereto as "Exhibit 1 B ". 3. Payment Terms. Payment for the Services will be remitted directly from Plan assets unless otherwise stated in Exhibit 1B. In the event that the Agency chooses to make payment directly to PARS, it shall be the responsibility of the Agency to remit payment directly to PARS based upon an invoice prepared by PARS and delivered to the Agency. If payment is not received by PARS within thirty (30) days of the invoice delivery date, the balance due shall bear interest at the rate of 1.5% per month. If payment is not received from the Agency within sixty (60) days of the invoice delivery date, payment plus accrued interest will be remitted directly from Plan assets, unless PARS has previously received written communication disputing the subject invoice that is signed by a duly authorized representative of the Agency. 4. Fees for Services Beyond Scope. Fees for services beyond those specified in this Agreement will be billed to the Agency at the rates indicated in the PARS standard fee schedule in effect at the time the services are provided and shall be payable as described in Section 3 of this Agreement. Before any such services are performed, PARS will provide the Agency with written notice of the subject services, terms, and an estimate of the fees therefore. 5. Information Furnished to PARS. PARS will provide the Services contingent upon the Agency's providing PARS the information specified in the exhibit attached hereto as "Exhibit 1 C "( "Data "). It shall be the responsibility of the Agency to certify the accuracy, content and completeness of the Data so that PARS may rely on such information without further audit. It shall further be the responsibility of the Agency to deliver the Data to PARS in such a manner that allows for a reasonable amount of time for the Services to be performed. Unless specified in Exhibit IA, PARS shall be under no duty to question Data received from the Agency, to compute contributions made to the Plan, to determine or inquire whether contributions are adequate to meet and discharge liabilities under the Plan, or to determine or inquire whether contributions made to the Plan are in compliance Page 1 55B -7 DRAFT with the Plan or applicable law. In addition, PARS shall not be liable for non- performance of Services if such non - performance is caused by or results from erroneous and/or late delivery of Data from the Agency. In the event that the Agency fails to provide Data in a complete, accurate and timely manner and pursuant to the specifications in Exhibit IC, PARS reserves the right, notwithstanding the further provisions of this Agreement, to terminate this Agreement upon no less than ninety (90) days written notice to the Agency. 6. Suspension of Contributions. In the event contributions are suspended, either temporarily or permanently, prior to the complete discharge of PARS' obligations under this Agreement, PARS reserves the right to bill the Agency for Services under this Agreement at the rates indicated in PARS' standard fee schedule in effect at the time the services are provided, subject to the terms established in Section 3 of this Agreement. Before any such services are performed, PARS will provide the Agency with written notice of the subject services, terms, and an estimate of the fees therefore. 7. Records. During the term of this Agreement, and for a period of five (5) years after termination of this Agreement, PARS shall provide duly authorized representatives of the Agency access to all records and material relating to calculation of PARS' fees under this Agreement. Such access shall include the right to inspect, audit and reproduce such records and material and to verify reports furnished in compliance with the provisions of this Agreement. All information so obtained shall be accorded confidential treatment as provided under applicable law. 8. Confidentiality. Without the Agency's consent, PARS shall not disclose any information relating to the Plan except to duly authorized officials of the Agency and to parties retained by PARS to perform specific services within this Agreement. The Agency shall not disclose any information relating to the Plan to individuals not employed by the Agency without the prior written consent of PARS, except as such disclosures may be required by applicable law. 9. Independent Contractor. PARS is and at all times hereunder shall be an independent contractor. As such, neither the Agency nor any of its officers, employees or agents shall have the power to control the conduct of PARS, its officers, employees or agents, except as specifically set forth and provided for herein. PARS shall pay all wages, salaries and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, such as social security, income tax withholding, unemployment compensation, workers' compensation and similar matters. 10. Indemnification. PARS and Agency hereby indemnify each other and hold the other harmless, including their respective officers, directors, employees, agents and attorneys, from any claim, loss, demand, liability, or expense, including reasonable attorneys' fees and costs, incurred by the other as a consequence of PARS' or Agency's, as the case may be, acts, errors, or omissions with respect to the performance of their respective duties hereunder. Page 2 00�A DRAFT 11. Compliance with Applicable Law. The Agency shall observe and comply with federal, state and local laws in effect when this Agreement is executed, or which may come into effect during the term of this Agreement, regarding the administration of the Plan. PARS shall observe and comply with federal, state and local laws in effect when this Agreement is executed, or which may come into effect during the term of this Agreement, regarding Plan administrative services provided under this Agreement. 12. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event any party institutes legal proceedings to enforce or interpret this Agreement, venue and jurisdiction shall be in any state court of competent jurisdiction. 13. Force Majeure. When satisfactory evidence of a cause beyond a party's control is presented to the other parry, and nonperformance was unforeseeable, beyond the control and not due to the fault of the party not performing, a parry shall be excused from performing its obligations under this Agreement during the time and to the extent that it is prevented from performing by such cause, including but not limited to: any incidence of fire, flood, acts of God, acts of terrorism or war, commandeering of material, products, plants or facilities by the federal, state or local government, or a material act or omission by the other party. 14. Ownership of Reports and Documents. The originals of all letters, documents, reports, and data produced for the purposes of this Agreement shall be delivered to, and become the property of the Agency. Copies may be made for PARS but shall not be furnished to others without written authorization from Agency. 15. Designees. The Plan Administrator of the Agency, or their designee, shall have the authority to act for and exercise any of the rights of the Agency as set forth in this Agreement, subsequent to and in accordance with the written authority granted by the Governing Body of the Agency, a copy of which writing shall be delivered to PARS. Any officer of PARS, or his or her designees, shall have the authority to act for and exercise any of the rights of PARS as set forth in this Agreement. 16. Notices. All notices hereunder and communications regarding the interpretation of the terms of this Agreement, or changes thereto, shall be effected by delivery of the notices in person or by depositing the notices in the U.S. mail, registered or certified mail, return receipt requested, postage prepaid and addressed as follows: (A) To PARS: PARS; 4350 Von Karman Avenue, Suite 100, Newport Beach, CA 92660; Attention: President (B) To Agency: City of Santa Ana, 20 Civic Center Plaza, Santa Ana, CA 92701; Attention: Executive Director of Personnel Services Notices shall be deemed given on the date received by the addressee. 17. Term of Agreement. This Agreement shall remain in effect for the period beginning 2011 and ending ' 2016 ( "Term "). This Agreement will continue unchanged for successive twelve -month periods following the Term unless Page 3 .I u DRAFT either party gives written notice to the other parry of the intent to terminate prior to ninety (90) days before the end of the Term. 18. Amendment. This Agreement may not be amended orally, but only by a written instrument executed by the parties hereto. 19. Entire Agreement. This Agreement, including exhibits, contains the entire understanding of the parties with respect to the subject matter set forth in this Agreement. In the event a conflict arises between the parties with respect to any term, condition or provision of this Agreement, the remaining terms, conditions and provisions shall remain in full force and legal effect. No waiver of any term or condition of this Agreement by any parry shall be construed by the other as a continuing waiver of such term or condition. 20. Attorney's Fees. In the event any action is taken by a parry hereto to enforce the terms of this Agreement, the prevailing party therein shall be entitled to receive its reasonable attorney's fees. 21. Counterparts. This Agreement may be executed in any number of counterparts, and in that event, each counterpart shall be deemed a complete original and be enforceable without reference to any other counterpart. 22. Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions. 23. Effective Date. This Agreement shall be effective on the date first above written, and also shall be the date the Agreement is executed. AGENCY: BY: TITLE: Executive Director of Personnel Services DATE: PARS: BY: TITLE: DATE: Page 4 55B -10 DRAFT EXHIBIT IA SERVICES PARS will provide the following services for the City of Santa Ana: 1. Plan Consultation Services: (A) Meeting with Agency personnel to discuss the impact to the Agency of implementing a Plan; (B) If appropriate, completing a fiscal analysis, based on data and assumptions provided by Agency, to determine the fiscal feasibility of a Plan; (C) Meeting with Agency personnel to discuss the fiscal analysis and receive feedback on the analysis, data, and assumptions made; (D) Making appropriate revisions to the fiscal analysis as directed by Agency. 2. Plan Installation Services: (A) Meeting with appropriate Agency personnel to discuss plan provisions, implementation timelines, benefit communication strategies, data reporting and contribution submission requirements; (B) Providing the necessary analysis and advisory services to finalize these elements of the Plan; (C) Providing the documentation needed to establish the Plan for review by Agency legal counsel. 3. Plan Administration Services: (A) Monitoring the receipt of Plan contributions made by the Agency to the trustee of the PARS Trust Program ( "Trustee "), based upon information received from the Agency and the Trustee; (B) Performing periodic accounting of Plan assets, including the allocation of employer contributions, distributions, investment activity and expenses (if applicable), based upon information received from the Agency and/or Trustee; (C) Acting as ongoing liaison between the Participant and the Agency in regard to distribution payments, which shall include use by the Participants of toll -free telephone communication to PARS; (D) Producing benefit illustrations and processing enrollments; (E) Coordinating the processing of Participant distribution payments pursuant to authorized written Agency certification of distribution eligibility, authorized direction by the Agency, and the provisions of the Plan, and, to the extent possible, based upon Agency - provided Data; (F) Directing Trustee to liquidate Plan assets (if necessary) and make Participant distribution payments, and producing required tax filings regarding said distribution payments; Page 5 55B -11 DRAFT (G) Notifying the Trustee of the amount of Plan assets available for further investment and management, or, the amount of Plan assets necessary to be liquidated in order to fund Participant distribution payments; (H) Coordinating actions with the Trustee as directed by the Plan Administrator within the scope this Agreement; (I) Preparing and submitting a report of Plan activity to the Agency, unless directed by the Agency otherwise; (J) Coordinating and selecting of a licensed actuary to perform actuarial valuation, if required, on a periodic basis to comply with state and federal laws (the actuarial certification fee for which shall be paid by the Agency); (K) Preparing and submitting the Annual Report of Financial Transactions to the California State Controller, as required by law, for the PARS Trust Program, including the required certified audit of the PARS Trust. 4. Plan Compliance Services: Coordinating and preparing changes to the Trust, Plan and other associated legal documents required by federal and state agencies to maintain the Plan in compliance. 5. PARS is not licensed to provide and does not offer tax, accounting, legal, investment or actuarial advice. In providing the services specified above, PARS will retain qualified professional service providers at its cost as it deems necessary if the service lies outside its area of expertise. 6. Any analysis provided by PARS is subject to the receipt of accurate information and assumptions as may be provided by Agency. The Agency is responsible for integrating the PARS analysis into any Agency budgetary analysis or decision - making processes. The fiscal projections in the PARS analysis are dependent upon future experience conforming to the assumptions used and the results will be altered to the extent that future experience deviates from these assumptions. It is certain that actual experience will not conform exactly to the assumptions used in the analysis. Page 6 55B -12 DRAFT EXHIBIT 1 B FEES FOR SERVICES PARS will be compensated for performance of Services, as described in Exhibit IA based upon the following schedule: Upon implementation of the Plan associated with this Agreement, the Agency agrees to pay: (A) An ongoing administration fee equal to five and one -half percent (5.50 %) of all contributions made by the Agency on behalf of participants in the subject Plan. Fees will be billed to the Trustee as contributions are made by the Agency, and it will be the responsibility of the Trustee to pay those fees from the assets of the Plan. These fees are exclusive of Trustee and investment management fees, which are based on the standard fees charged by the Trustee. (B) A fee equal to actuarial expenses, if any, charged to PARS by an outside contractor for an actuarial valuation of the Agency's Plan ( "Actuarial Valuation Fee "). (C) A fee equal to the stated IRS application fees and legal fees related to any ongoing federal and/or state required Plan compliance changes. Such fees will not be charged to the Agency without prior authorization by the Plan Administrator. Page 7 55B -13 DRAFT VVUITIr•r 1 r' DATA REQUIREMENTS PARS will provide the Services under this Agreement contingent upon receiving the following information: 1. Participant Data (provided by Agency): (A) Participant's Legal Name (B) Participant's Position (C) Participant's Address (D) Participant's Birth Date (E) Participant's Hire Date (F) Participant's Contract Salary (G) Years of Agency Service (H) Retirement Date 2. Executed Legal Documents (provided by Agency): (A) Certified Resolution (B) Adoption Agreement (C) Plan Document (D) Trustee Investment Forms 3. Completed Funding Documents (provided by Agency): (A) Authorization to Pay Benefits Form (B) Funding of PARS Supplementary Retirement Plan Form 4. Completed Enrollment Forms (timely submitted by Participant): (A) Correction Form (B) Enrollment Form (C) Beneficiary Designation Form (D) Tax Withholding Request Form (E) Letter of Resignation 5. Other information pertinent to the Services as reasonably requested by PARS. Page 8 55B -14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2011 TITLE: PUBLIC HEARING — COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FY 2011 -2012 CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 02900= ❑ As Recommended ❑ As Amended ❑ Ordinance on 15f Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Approve the proposed Fiscal Year 2011 -2012 Community Development Block Grant Program (Exhibit 1). 2. Approve the proposed contingency plan for the Fiscal Year 2011 -2012 Community Development Block Grant Program. 3. Authorize the City Manager to submit the approved program to the United States Department of Housing and Urban Development for the City's Fiscal Year 2011 -2012 allocation of Community Development Block Grant funds and execute the grant agreement with the United States Department of Housing and Urban Development (HUD). 4. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute memorandums of understanding with city departments and agreements with nonprofit agencies awarded funds as part of the approved program. DISCUSSION Since Fiscal Year 1974 -1975, Santa Ana has received Community Development Block Grant (CDBG) funds to improve low- and moderate - income neighborhoods, eliminate blight and create a more stable economic base. These funds have been used for a diverse range of programs including housing, street improvements, parks and public facilities improvements, social services, historic preservation and community services. It is important to note that, as of this date, HUD has not notified the City of the actual amount of funds it will receive for the aforementioned grant. For planning purposes, the City is estimating that the City's entitlement for Fiscal Year 2011 -2012 will be $6,800,000. An adjustment based on the final 2011 -2012 grant amount will be necessary once HUD publishes the final grant amounts. A contingency plan is included as part of Exhibit 1 for 75A -1 Public Hearing — CDBG Program FY 2011 -2012 April 18, 2011 Page 2 determining the adjustment and final allocation. The CDBG federal regulations allow no more than 15% of this entitlement to be used for social service programs and no more than 20% for administration and planning. In past years, the City has used an application process to make public service funds available to nonprofit organizations that meet one of the priorities identified in the City's Consolidated Plan (the City's five -year strategic plan that identifies housing and community needs that are required by HUD). Like communities throughout the nation, the current economic climate continues to present serious budget challenges to Santa Ana. These challenges include an increased demand for a variety of municipal services, the redirection of local revenues to the state, and an overall decline in various tax revenues. To address these challenges, the City continues to make the difficult decision to limit the amount of CDBG funds available for nonprofits for the 2011 -2012 Fiscal Year to City- managed programs. Therefore, public service proposals were not requested from the non - profit community. On April 4, 2011, the City Council held a public hearing that provided an opportunity for public input. The item was continued for further review and upon the requests of City Council, the proposed 2011 -2012 CDBG program and budget were amended to add Cabrillo Park and 4th Street & French public facility improvements. In order to accommodate the new projects, the Public Facility Improvements- Streets /Parks and the Police Department- Helicopter program were reduced. The proposed Fiscal Year 2011 -2012 CDBG program and budget,as amended, is attached (Exhibit 1). FISCAL IMPACT Approval of the recommended action will authorize the City Manager to submit the approved program to HUD and to execute a grant agreement, which will result in the City's CDBG letter of credit being augmented by an estimated $6,800,000. APPROVED AS TO FUNDS AND ACCOUNTS: � ancy T. Edwards Francisco Gutierrez U Interim Exdcutive Director, Executive Director Community Development Agency Finance & Management Services Agency NTE /FH /kg Exhibit: 1: Program Recommendations 75A -2 O N O w O. 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Z U a 0-a 20- X0 lL a. 75A -3 co M O 75A -4 REQUEST 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 CITY MANAGER -�11 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. 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. x:11 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 �;117Ma 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).) X961 j 7 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). S elly La dry-Bayle Housing tanager Community Development Agency Exhibits: 1. Resolution, City 2. Resolution, Agency 3. DDA 4. Fund Program APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez r' Executive Director U Finance and Management Services Agency x:111 w 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 ;117X, 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 I. 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 ". �96117M 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. �;1j7X;7 ADOPTED this day of , 2011. Carlos Bustamante Acting Chair APPROVED AS TO FORM: By: Joseph Straka Interim General Counsel AYES: NOES: Boardmembers: 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 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 A April 18, 2011 �:111_15 _fi_ Contents CHAPTER1 Introduction ................................................................................ ............................1 -1 CHAPTER2CEQA 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 Analyzedin 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 ................................ ...........................14 -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 Table2 -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 =f F_agl/Statement of Overriding Considerations iii -117 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 Transit Potenfial Gross Development 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 �96111'15 VA 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. 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G= . 0 0 o> m s E_ 2 o2f\°� °�£ °°t \\ -0 A®_ °°K» 3:.05 a) ©«�f ■E2§ ==7§®%8 E G m ®6-9 $ CL ° � - ° ( fr / \m_ >ms£0) 2E�5 o _- =m : =mE_ § \t Q- a) 222v)o§ ®§2 = & R § 3:.2 3 m E \ § = G � �.E 2 ° r7EFemE=R % 3o§ 2 2cƒ /�cl.E \�\ \ \\ c0 :F--6 (D 75 > ° «EE C) — ° &5« ■m- am=0\ /:2 cu .- �b�=7 —» 2. E$ m £ § _ 2: e -/ �» $f\ / ®� - 0 \q% \e ¥_ o 3 e_ E d 7 _ � k\_ @ c 2 t_ cu (D /£k27k 0S�k\�C\� /� ># = *(5ƒ\) -(D /���3 - = -7 §222 ° �� /§#� 7 \ \� * \7�7��«/� {\f km% . 2� �%2$ a2. =� 2 =&2 \�\e °±£r@%�c�� =E >moe0)ER2 co CL R = c = e 7 » a » % & § e * & \ 's G m u &: Co § £ / 2c mm 0 . . . �961 7m� k 2 0 � k 0 $ U) k cr � q 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 Faytatement 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 80A -73 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 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 Land Use Type Alternative 2 and A#emaNve 2 Proposed Transit Zoning Code (SD 84A and SD 84B) Characteristics 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 ro ,1aJty 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 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 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 8OA -77 Considerations Chapter 3 Findings Regarding Project Alternatives Table 3-2 Land Use Type Alternative 3 and Affemative 3 Proposed Transit Zoning Code (SD 84A and SD 84B) Characteristics Trans# Zoning Code (SD 84A and SD 846) ` 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. 3 -10 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 8OA_81 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 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. Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 3 -11 Considerations 8OA -82 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. 3 -12 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 8OA -83 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 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. Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 3_13 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 3 -14 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 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. Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 3 -15 Considerations 8OA -86 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 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 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 3 -16 Revised Station District Project and FOL Settlement Agreement Findings of FacVStatement of Overriding 8OA -87 Considerations 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 Considerations 8OA -88 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. 3 -18 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 8OA_89 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. Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 3 -19 Considerations 80A -90 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/Traffic ■ 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 tune. 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 Properties to Be Rehabilitated/Demolished Address APN 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 45 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 /multi -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 �;,j1�d_�j - 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 I. 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. �:��1_d_[11II 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. �;1j1�d_�j1;7 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 �:1111_d IRUI 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 �:111_15 _fi_fi_ Chapter 1 Introduction Contents CHAPTT3R1 Introduction ................................................................................ ............................1 -1 CHAPTER2CEQA 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 -1 Analyzed in the Draft EIR .............................................. ............................... 3 -2 3.4.2 Findings on Alternatives to the Proposed Transit Zoning Code 4.5 Analyzedin the Draft EIR .............................................. ............................... 3 -9 3.4.3 Findings on Alternatives that were Considered but Eliminated Findings On Other Settlement Agreement Terms ........................ ............................4 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 Table2 -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 �:111_5 _fi_V I &I 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 Transit Zoning Code Potential Net Change Potential Gross Development 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 �:111_15 _fi_VA 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. 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U C OU N O d C Q E C .@ a C m we Q O .a) m C N C L E N- a E E O O L W- 0 a U y- 0 Z,� .�? Q E N d C Q C h j` C m cn cn CL) CL CL 2 Co n a 0)) H a) � E n�> � a) O C E w Q 0 E O Q Q cn = w = O cn _ U N N CL r- •- O h (o U Q E - O a O C u) N E �' U CD `) Oi `) O N U) > Q a) W a -0 U) QNW O_''in c6 `t Q�E W a) O L N N L E a O V m O m cO w C N L 0 co co 0- a) .N '� p m c p> s E a cu 0 a) O_ O a) O E N C N O@ L m N L O) a m O C CD 'C c m a O p U 0_ .0 a m O O -c p L Q7 O a O (d U O >, X f, a) E L ,� O O 32 C w 7 w N cu .� co -°—_ E a_ CD o- >o (n is a a ° 3 m = o a) 0 a > m L O N C) a m m L E c) o >° = a_m CD m == Q E ai co U m a o -° a a) . C _ n cn v p c U o 3 CU °� Q c is aN Q a m _ s c o o m o o ° m `o io m o io o 0)m ° LL. 3 p E U a o Q a 3 E o 3 3 'in E U o 2 E w C L a) O1 C co -,5 O Ta O - C ' c U 3 0 5 -a ° E= m E nJ N o U ca in a c Q) O_ a L C COD O U -� N °o� a) a's N M .O H V 0 @ ao O �O N O N fn m U .m E U) N ca a) aci w--. E ° C. 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E v c o� E 0 E 0 m a) `o ° m d a� a� 0 0 _ 2 aci c in c0i c ag o s L N a ` w w in •E a� 2 -M — m w 2 E E m ° o m° o m m o ° p c° v a, c as a°i cu a • m 0 m a3 .c? H 0 0 .� 0 a� s 0 3 o_.S =° E m- ° D cn CO cCD m E N a Q E 0 cr> L6 v h a� M m CL c O N -c3 E -0 - =3 O �! CL cr N W c p O o 0 c U a 0 O 961' 1 I l N N c a c oa U N a m U /96111'15 MA N N N C O N N m C U UO c i O O c N E cc U LL O C LL W OD O U t0 C_ C O N y C m d (D 0 u $ °E cc to .' a�i w 2 N m w N y rn h J vJ A H U) O T U) C�mas O U) a) C= _ cu O C U p O N @ O (B C N O f6 cn 0 CD Q) O U E O O) O C c U 6 O` CU p . U N c C v U D c C U 1i S; :2 c W L -C N 3 a5 U c N cn c� U c c =3 a) c 3 cr 0 Q) O N CI cn a) N C Q L U C= a) C Q L L O N a) LL F- L .� L @ LL F- L 'O a) U) ca O C N a) O s Z U) O -p O c E V O co .O y c0 200 (D = -°c Q 3 •a a) a v, N E n3 c0a a) C E m 2 O a O H 0 U) a)° U o Q d 3 o p -0 cu c `o = a) 3 b O M o�U 'o�— > 0 c E cB � f0 c. 0 N cc G Y u to a) L•, O U ci3 3 M tj ° .22)` o o •o c a) '? LO Q til O O c a) 0-0-2 ' c .cm O o fn cLn E c13 o a) c �_ .L-. d p C — co Q O N C a3 O ca T C ch a) L C ,� 3 =3 m Q .°-) N `) w a u. E ,Lh fly. ns cd EO N o a3 (Q o a) T C v •— X- (n v r2 0 • U c6 N .L-• 'L-' 'a .L-.. N U m :s N D) a) L a) C O O C O O t C O U O C a C N a N a3 j cu a) o 'L"' a) tf 7 �--. L a 3 ai a) 3 o a .3 p v, d •p y c0 a) to -0 cn `L c 0 E co O io 3 2 = cn = 2 j v a a) 0 .0 a -a o -p c E 'o � o N ac ) E O m U 0 O L m U V O U 3 N 0 - c O_ 0 d Q C6 -p . V O U N n CJ O 7 O N O OC ` E N O a) a) N N N U C c O a O V O N C cu U o 'D C N cu C Q .O C _ cn co U U O Z2 ` p N co U O - 2 N p o 'D i p~ E O a) m -o is C U •3 N o U 2 o (6 m U c C .--� a) U m o _o -p c ° 0 y U -5-0 is m o `n Q a) o c o c a) cn m— 0 d �! j h O C 'Q (6 O O_ N p p) E tf) U) W c E O O N a 2 E O c c cn con O) U) -� Q (O U d 7 C L W F3 '—L- Ua.E2a> ac0.� fl- aU U N Q D..L. a N c a) :N -c U) o .� --r- L j a W (O N v.. L c 7 0 a) U a) �a 0 s 3- m o o N F- h U C 3 C fU o) N a) U) C cu m° c O '- � U n o --t Q h U c vi . in- CD 3 6 --S E rnm.� ax) rn�0 d :-> -C N c p_ c O m c0 C C 7 0 gc0 m. N� E c c /96111'15 MA N N N C O N N m C U UO c i O O c N E cc U LL O C LL W OD O U t0 C_ C O N y C m �0 C C �L oa U N 2. U 61 'p C 7 O C .� C� O O U "..' N U U a> C O ".' .LO �O Y O a C7 C Cl) m '00 N (6 Q -U U 00 N .O N N N -° N N -ln — N y •� .a) fa N d o `C vi m e cn a c `as ° E -o oa m 3 m c a> a T ° 0) a) c v c G a> C N .o E a> a> 'n m N co o c vii a 3 �' a> a> ° a n'm o cv 01 co �r> m a`> y U v in c° < m cn t o j a Z c a> ti a G a> ac>v o �> >.rn a� o N >, LO -w °-m�'_iC? c a> u'-a O -c2 Co< E c rn o E o m 'ti co a> Q .fl c o vi m O c o Q `> z p— o n cn o n > c> a cn i n .L.. O N O C CU N a O N cn cL a) (a m E- N L6 n U lf7 N O to j (D N O E a> 5 o i cn p— `n 2 c° a> w Z E w Q 3> c° v '� cn o- a> cn, c '� a ;> a_�i aa> n 0— 0 � c4 w c° � 3 a c" cn c Cl) o — c a`�i .o -- U n c ° m E m c° a o co Q .� 'o c ° c co`v LL rn N co N �' aai rn ca a> 3 0 o Q CD `> a> ai o -a c —° n m e c 2 n w � Q F— -('D � •D c�v —° � o o C>1 w C C 7 C N c— O E O a) E .N o c> d avoi tom-- .N c w o c O N O w °- N N cn c S 3 a> C c � o LL 3 o c c w ._ 3— U c cl, C O O O N C CU M '<n LO a) — @~ O U a a) U O N a) Q> C C O +L C C O "a a —'� a) f0 a) E w a) O N in 3 Q d O N c` X U •� O m .rn @ ca -2 -Fu in._�`r w-O L)m _ ncnQ u> Q aOw a��c rn.vL cn - a> y�j m C E cu °: O: .ID O O` L W O :5 L >, _C a> O 0 O CD- LL C (4 C L. w 3 E 'rn _ n d U 3 F- 2 n co .= o U c a m E Q m a> U c6 C U O - � •a a> N E a co E o N C H E � O fn E m c E m 0 0 co m rn U N a U L (6 C C s m m n 961' 1 I C a> O L U L C a O CU U is O v m to .a> ca Q-.� U co i 00 N N > CU c6 p U O C U ( a � C al -y � 7 O U O` L G L N Zit H _U 7 N fn � J 61 'p C 7 O C .� C� O O U "..' N U U a> C O ".' .LO �O Y O a C7 C Cl) m '00 N (6 Q -U U 00 N .O N N N -° N N -ln — N y •� .a) fa N d o `C vi m e cn a c `as ° E -o oa m 3 m c a> a T ° 0) a) c v c G a> C N .o E a> a> 'n m N co o c vii a 3 �' a> a> ° a n'm o cv 01 co �r> m a`> y U v in c° < m cn t o j a Z c a> ti a G a> ac>v o �> >.rn a� o N >, LO -w °-m�'_iC? c a> u'-a O -c2 Co< E c rn o E o m 'ti co a> Q .fl c o vi m O c o Q `> z p— o n cn o n > c> a cn i n .L.. O N O C CU N a O N cn cL a) (a m E- N L6 n U lf7 N O to j (D N O E a> 5 o i cn p— `n 2 c° a> w Z E w Q 3> c° v '� cn o- a> cn, c '� a ;> a_�i aa> n 0— 0 � c4 w c° � 3 a c" cn c Cl) o — c a`�i .o -- U n c ° m E m c° a o co Q .� 'o c ° c co`v LL rn N co N �' aai rn ca a> 3 0 o Q CD `> a> ai o -a c —° n m e c 2 n w � Q F— -('D � •D c�v —° � o o C>1 w C C 7 C N c— O E O a) E .N o c> d avoi tom-- .N c w o c O N O w °- N N cn c S 3 a> C c � o LL 3 o c c w ._ 3— U c cl, C O O O N C CU M '<n LO a) — @~ O U a a) U O N a) Q> C C O +L C C O "a a —'� a) f0 a) E w a) O N in 3 Q d O N c` X U •� O m .rn @ ca -2 -Fu in._�`r w-O L)m _ ncnQ u> Q aOw a��c rn.vL cn - a> y�j m C E cu °: O: .ID O O` L W O :5 L >, _C a> O 0 O CD- LL C (4 C L. w 3 E 'rn _ n d U 3 F- 2 n co .= o U c a m E Q m a> U c6 C U O - � •a a> N E a co E o N C H E � O fn E m c E m 0 0 co m rn U N a U L (6 C C s m m n 961' 1 I C a> O L U L C a O CU U is O v m to .a> ca Q-.� U co i 00 N N > CU c6 N C U ( a � C 7 O U O` 2 O L N > a _U 7 N If m CU O E O L rf a o C c c co a> � > .� c �t o w U O 0 C O CV N L6 a U to � a) U t U C a) m m � c o of ac> c Qm- 61 'p C 7 O C .� C� O O U "..' N U U a> C O ".' .LO �O Y O a C7 C Cl) m '00 N (6 Q -U U 00 N .O N N N -° N N -ln — N y •� .a) fa N d o `C vi m e cn a c `as ° E -o oa m 3 m c a> a T ° 0) a) c v c G a> C N .o E a> a> 'n m N co o c vii a 3 �' a> a> ° a n'm o cv 01 co �r> m a`> y U v in c° < m cn t o j a Z c a> ti a G a> ac>v o �> >.rn a� o N >, LO -w °-m�'_iC? c a> u'-a O -c2 Co< E c rn o E o m 'ti co a> Q .fl c o vi m O c o Q `> z p— o n cn o n > c> a cn i n .L.. O N O C CU N a O N cn cL a) (a m E- N L6 n U lf7 N O to j (D N O E a> 5 o i cn p— `n 2 c° a> w Z E w Q 3> c° v '� cn o- a> cn, c '� a ;> a_�i aa> n 0— 0 � c4 w c° � 3 a c" cn c Cl) o — c a`�i .o -- U n c ° m E m c° a o co Q .� 'o c ° c co`v LL rn N co N �' aai rn ca a> 3 0 o Q CD `> a> ai o -a c —° n m e c 2 n w � Q F— -('D � •D c�v —° � o o C>1 w C C 7 C N c— O E O a) E .N o c> d avoi tom-- .N c w o c O N O w °- N N cn c S 3 a> C c � o LL 3 o c c w ._ 3— U c cl, C O O O N C CU M '<n LO a) — @~ O U a a) U O N a) Q> C C O +L C C O "a a —'� a) f0 a) E w a) O N in 3 Q d O N c` X U •� O m .rn @ ca -2 -Fu in._�`r w-O L)m _ ncnQ u> Q aOw a��c rn.vL cn - a> y�j m C E cu °: O: .ID O O` L W O :5 L >, _C a> O 0 O CD- LL C (4 C L. w 3 E 'rn _ n d U 3 F- 2 n co .= o U c a m E Q m a> U c6 C U O - � •a a> N E a co E o N C H E � O fn E m c E m 0 0 co m rn U N a U L (6 C C s m m n 961' 1 I C a> O L U L C a O CU U is O v m to .a> ca Q-.� U co i 00 N N m a> L N ( a � C 7 O U O` 2 O d N > a ° � If m c� C O L C E O a> O L > .� CD O LL- O O CV L6 a CD � a) U a) 61 'p C 7 O C .� C� O O U "..' N U U a> C O ".' .LO �O Y O a C7 C Cl) m '00 N (6 Q -U U 00 N .O N N N -° N N -ln — N y •� .a) fa N d o `C vi m e cn a c `as ° E -o oa m 3 m c a> a T ° 0) a) c v c G a> C N .o E a> a> 'n m N co o c vii a 3 �' a> a> ° a n'm o cv 01 co �r> m a`> y U v in c° < m cn t o j a Z c a> ti a G a> ac>v o �> >.rn a� o N >, LO -w °-m�'_iC? c a> u'-a O -c2 Co< E c rn o E o m 'ti co a> Q .fl c o vi m O c o Q `> z p— o n cn o n > c> a cn i n .L.. O N O C CU N a O N cn cL a) (a m E- N L6 n U lf7 N O to j (D N O E a> 5 o i cn p— `n 2 c° a> w Z E w Q 3> c° v '� cn o- a> cn, c '� a ;> a_�i aa> n 0— 0 � c4 w c° � 3 a c" cn c Cl) o — c a`�i .o -- U n c ° m E m c° a o co Q .� 'o c ° c co`v LL rn N co N �' aai rn ca a> 3 0 o Q CD `> a> ai o -a c —° n m e c 2 n w � Q F— -('D � •D c�v —° � o o C>1 w C C 7 C N c— O E O a) E .N o c> d avoi tom-- .N c w o c O N O w °- N N cn c S 3 a> C c � o LL 3 o c c w ._ 3— U c cl, C O O O N C CU M '<n LO a) — @~ O U a a) U O N a) Q> C C O +L C C O "a a —'� a) f0 a) E w a) O N in 3 Q d O N c` X U •� O m .rn @ ca -2 -Fu in._�`r w-O L)m _ ncnQ u> Q aOw a��c rn.vL cn - a> y�j m C E cu °: O: .ID O O` L W O :5 L >, _C a> O 0 O CD- LL C (4 C L. w 3 E 'rn _ n d U 3 F- 2 n co .= o U c a m E Q m a> U c6 C U O - � •a a> N E a co E o N C H E � O fn E m c E m 0 0 co m rn U N a U L (6 C C s m m n 961' 1 I C a> O L U L C a O CU U is O v m to .a> ca Q-.� U co i 00 N N ao a C d U N N a t0 U 961' 1 I p N N W C O LO N N C U UO C O 45 C N cu cu L.L_ NO� OCO C w 00 0 U) O U t)p c -C N co C L6 H '$ u u 3 cc H N U) J N a) T N Co N a) >. N Co O "L-' (6 O (Q CD .- c) m .= N m n o E oa `o E U ;a o as C p C U ,0 0 co C p O °_ ns ° Q' U ° �_ C co c a C w. sf : w .� O @ N ° C •� O N N ° C � - m a) '� c - rn a) T� U C L p C ac) ° 3 a U C L (D C aci a) a m ° m Q L U rn a) a) L> o N a) C> o vNi a) �-- L d� .0 LL F' L d a) a m C O) a) N a) a) _ O C L + : C '- 3 a T ) � O a U a a cn O T N L. C U U N O p . _ _r3 E2 "" O NO a) O C Q7 _ .Q C ` i �, 2 Q C Q E LL • N Q Ll C U( a Q C— o Q l C a) N fU m N U C cn N m a3 Q) a3 C U O E @ Q N O^ L C N Lr- C C N U C a E~ (6 M O O N U O L Q Q E a3 > O O U N a3 . `! • p 0 O >i E Q .--. C) yL,. N a a) N O a f° E Lv a) a) Y f6 O O �•_- O —>r. C O- N -U U > ?. E Q >` QOLLO a3 _ L N N O N C= O- :--•O C .NO-. c � c U U a3� E° O m in o a) U _ Q2 °- m Q a 3 '� c m v° c E> a o a) o E c (6 .L� `o o p ° m a3 a C Lu Q) O 070.- a) a) . .v av o@ 2 a =o a N c o o U LL O _ID > N N L m° 00 •C C :s C E C O O N '"� a) Lam, N LL U (>p @ b aai Q c E u) o N o C T o oa a) a) is O> � U °— ° o _°c_) a o a La N� o c a ° N U °c a) id �_ U 3 c ° v aci N a) O L C E f0 _ -0 aci N — L •_m a) Cu EF C C L6 O T a) O In O (6 L O_ O O E N a) .-. -O E O- C p Q .E @ o Sr — 4" N o N L U .� (O .D c a b a c c> N ° o m L m° a) d N° 0 0 iq O o CD a) H N C C C LL_ .n > Q p- > 7 N C -° C _� O_ U d U L LO N p O- C a3 C a) 4) CD 3 Q) fB N _0 N Lai U CL U in a) �) -� a U O °- "= o (° °- N Lq U (U d N � � ' Lv .r- L m Q .° c °- a) O Q O O L.. > .c E 'o c ° ° � a) � c a`� � .> a a? v — Q a ° � U O ° 7 U E a) .L--. Lo U a3 Q O � a) Q) 0 C L • iv Z� d o U_ Q. U .O La N co-) d a .0 o 'O '- a W O --. 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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 FagBat� e ff &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 Alternative Land Use Type 2 and Proposed Attemative 2 Transit Zoning Code (SD 84) Characteristics Transit Zoning Code (SD 84) 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 Fa bat� = eitlaerriding 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 Alternative Land Use Type 3 and Proposed Altema0ve 3 Transit Zoning Code (SD 84) Characteristics Trans# Zoning Code (SD 84) 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 bat� = 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 "maxrniz[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 ng Considerations 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 Faat� =eit §overriding 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 Pro' )ect 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 = i dQyerriding Considerations 3 -17 go 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. 3 -18 Revised Station District Project and FOL Settlement Agreement Findings of Fact/Statement of Overriding 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) El 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/Statement 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 Properties to Be Rehabilitated/Demolished Address APN 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 -197 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 FaGVStat A ement 200 erriding 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 PM25, 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 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 Fa W OA 20 Overriding 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.1" r which are described more particularly in the `leap Attachment No. 5. B. Developer, City, and I8, 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 aclrnovyld; the Agency Defined Te this First Ari'idment shall now fern it set fd[#lr,in this ntoi` a to a Disposition and Development W. es,kftp Agency to acquire possession )7'located pta Ana, California ( "City "), Fhe DDA furf vides for the Developer ble housing unitis:`- Project'), the details of of Development' aW hed to the DDA as 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 ree as follows: in the DDA. All capitalized and defined terms used in ;given to them in the DDA. 2. 5c4�0` _ of DevelQ inent. The Scope of Development attached to the DDA as Attachment No. 5, by deli and replaced with the new Scope of Development, attached to this First Amendment a`s =hi1 3. Site Map. 'M" '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 DOCSOC / 1491239v3/200272 -0001 1 Exhibit 3 �;�j�AK''11967 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 Unitsgt;;the For -Sale Portion of the Site. Specifically, Phase F.S"i dflF be construciec �;, -!I lin 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 t1i` = project, which shall include the development of appramateCy Thirty -nine {39) lntal Units on the Rental PG -of the Property 110all include any Additional Properties designated for )x M42. which area ded to the Project pursuant to Section 207 hereof. Spe'q` icaIly ,ha e R -2 vvi1'1il e. constructed within the area identified on the S& 'Map as ` ; t2," "LdV "Lot A," "Lot C," "Lot D," (e) tFRental Porftist of the Pl`t3�" means tlzatportion of the Project that e sists oft} k- 1Rental Units The Rental Portion of the Project consists of sever::: 7 IQt t __identified 6filhe Site Map and shall be constructed in two separatehses (llaas_R -1 afcl'hase R -2). Develope ' Condrtt > s of Clok `= Settlement Agreement. Anew Subsection 204.2(o) dite DDA is her added y r ch shall read as follows: "(o) Vie# #dement gY Bement. Neither the Agency nor the City shalR in default of the Settlement Agreement dated as .,f April;;: - $, 2011 entered into by the City, Agency, lyelgpand certain other parties, including Friends of Laoric 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." DOCSOC/1481239v3 /200272 -0001 2 Exhibit 3 oily U 7. Number of Affordable Rental Units. Section 401.1 of the DDA is hereby deleted and replaced in its entirety and with the following: DDA "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 4.wo (2) bedroom Rental Units to Very Lo Affordable Rent; (ii) eleven Rental Units to Extremely L Affordable Rent; (iii) ninetee;,. Rental Units to Very I Affordable Rent; and rta .dt11 Rental Units to Extrerri" .J� ( Affordable Rent. w lncon % *N 1*iouseholds at an two (2) bedroom ovl? 1aoxri= :Households at an ri_` of the` fhe (3) bedroom `Income Ho490bolds at an (4) of the three ( bedroom N Income House}ia� .-,.at an (b) In Phass;,R 2,. of twenty -f 73) newly constructed �� Rental Units rieJ JIM ximately fifteen (14) rehabilitated Rental Units, 2Q per6i txf„ all unit tll be available for Extremely Low ItY(xlne H °dsholds aric =he remaining for :. . V.;et u acv^ Income H seholdss ; & Afford _ le Rent. With ., aspect tC� number o+VI bedrbams tits ilnal "distribution of Dental Uni# Very L6W-,. me Hous Ids and Extremely o;_Income =Households =I1 be subject to the approval of the k'cncv.,i eutive Dire&&" lvumtie � Locatirijdk ,. nd Qualm j Affordable For -Sale Units. Section 402.1 of the deleted i6ff laced= n4 is entiretM with the following: "Nurril&, LocatOtt:,,and Quality of Affordable For -Sale Units. RR.east ogRll) of the Housing Units developed on each of th_three (3) separate lots constituting Phase FS, the Tor- Sale,rtion of the Development, but up to a total of five for...Iits, shall be sold to Moderate Income Households, at`` :# }:prices set forth in Section 402.2 hereof, i.e., the Affo le 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. DOCSOC/ 1481239x3/200272 -0001 3 Exhibit 3 �9611hdi_��� (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 improvements1< =? purchase price for a Housin;#�' and thus not necessarily,.Jfi le �ir Affordable For -Sale Units ft ( acknowledgment modifies b% obligation to provide first quatrt as described 9. DDA Otherwise Unc conditions of the DDA shall remain in DOCSOC/1481239v3/200272 -0001 4 Exhibit 3 ledges that a 3 e1ebf aid pay for e -not incliYe3::in the of the same °' :_and model in a correspond ping in the forego ` " ;, ins the3eveloper's "ie For -Sale Unfts as expro! Y set forth herein, all terms and SL unchaigisd by this First Amendment. �96111_dN_`_ 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 BY: Maria D. Huizar Secretary APPROVED AS TO FORM: By: Lisa E. Storck Assistant General Counsel The bour CIT a De By: Its: By: Nancy DOCSOC/ 1481239v3/200272 -0001 s Exhibit 3 Director ATIQN DISTRICT, LLC, liability company DOCSOC/1481239v3/200272 -0001 EXHIBIT 1 [Insert new Scope of Development] EXHIBIT 1 -1 �9611hwii K? EXHIBIT 2 [Insert new Site Map] EXHIBIT 2 -1 DOCSOC/1481239v3/200272 -0001 �Ool j 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. x:111_ K V 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 �96117AN 1,16-1, • 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 �96117AN 1,16-1, x:111_ N VA • 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 x:111_ N VA 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, x:111. Fee Utilities/PubIic 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. 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 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. X96117 AM_ so so SITE MAP AND PROJECT PHASING ... _._ ...., 111 . lit-7717 =11111 ��11 � X11 9 ST.VFM sr. B � IM L. 1 �� 111111 1111111 - :. Station District r Phase 1 - R -1 Multifamily Phase 2 - R -2 Multifamily Phase 2 - R -2 Rehabilitation For Sale �96117AWIA N �, 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 1 $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 "). 4 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 7 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 structures) 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) 8 80A -233 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. 9 80A -234 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 10 80A -235 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. 11 80A -236 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 12 80A -237 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 13 80A -238 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. 14 80A -239 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. 15 80A -240 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. 16 80A -241 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 17 80A -242 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 18 80A -243 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. 19 80A -244 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: 0 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: Un Joseph Straka, City Attorney 20 80A -245 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: IC Carlos Bustamente Councilmember APPROVED AS TO FORM: Date: 0 Joseph Straka, City Attorney 21 80A -246 FRIENDS OF LACY: FRIENDS OF THE LACY HISTORIC NEIGHBORHOOD, an unincorporated association Date: C Jeffrey L. Dickman 22 80A -247 DEBRA MCEWEN, an individual Date: C 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 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 12TH ST M 11TH ST. ■ 4TH ST E SITE MAP WITH PARK SITE AND PROJECT PHASING II �II�I o FIC 50; F]a 1''1'11-1 111■II, 1-■ 111111111111 11111111 �� 1 Phase 1 - R -1 Multifamily Phase 2 - R -2 Multifamily Phase 2 -R -2 Rehabilitation For Sale ' J • . • Potential Park Site WX — Station District EXHIBIT "B" TRANSIT ZONING CODE PROJECT AREA 80A -252 EXHIBIT "C" LACY NEIGHBORHOOD, STATION DISTRICT AND SURROUNDINGS 80A -254 H cm 0. Ma 0 L L N Ma 4+ u a+ 0 ra f0 N w 0 0 s L 0 .Q s 0'f Z Z A v t� J 80A -255 0 d Q J 0 o a R Z, r C C 7 l6 O CO U 00 L d w R L d Di: p� d O R Q m O C O Y (Q (n C � Q to F 00 v a w Y O o a 0 c r a o t U) LL Z r_ IR EXHIBIT "D" FOL SETTLEMENT PROPERTY PLAN 80A -256 0 f m W ° at o - ° F Z W o w W wo ❑M® K pj u W (� �a o C a 6 S C w N QO Q O � W O LL d w _ Z N o �c Nm J�in Nam v�� Wm LL�N W W N��W 2r `�mv(7N Nv� Q �mym Q Q Q't 2w aNg O�EZ�o Q N v , OO ��in in wtt�o o� a wsy Qz uiaw Q Q Owz O �' B do- N Z O F Q dw Z H Z W W J F H W to 80A -257 J Q F Z W O Z O V er ►u ore 0 m� d °c'� G�a oN n L Jnn_�>dE J �n m� Glad wtSOm -- w.�_tn me � J pww QO oEE > > >E Scsc So x�_ xNEcc tcd xt > 00 WO011O� O 0 0� R'KKKU`� LL' Kcc K�pKK LL'KKO KK 0 J - -- Q22S F F O F 0 F 0 ti 0 F O F O F O F O F O F O F O do- N Z O F Q dw Z H Z W W J F H W to 80A -257 J Q F Z W O Z O V er ►u ore 0 m� d 80A -257 J Q F Z W O Z O V EXHIBIT "E" FOL SETTLEMENT PROPERTY DESCRIPTIONS 80A -258 EXHIBIT "E" FOL SETTLEMENT PROPERTY DESCRIPTIONS ADDRESS = ku, AP }N . eL. L. DE R A I 501 -501 1/2 E. 5th Street Rehab in Place 398- 332 -09 FRUITS ADD BLK 6 LOT A 1B 507 Mortimer Rehab in Place A 2 505 E. 5th Street Rehab in Place 398 - 332 -08 FRUITS AD BLK 6 LOT C 3A 505 N. Minter Street Demolish 398 - 333 -09 FRUITS ADD BLK 7 LOT C 3B 507 N. Minter Street Rehab in Place C 3C 601 -603 E. 5th Street Rehab in Place 398 - 311 -L9 LOT6FO OFLOTAND ANA EAST &10 B 4 610 -612 E. 5th Street Relocate to 511 E. 5th St. 398 - 338 -03 FRUITS ADD B K8LOT8 D-5— 615 -617 E 55th Street Rehab in Place 398- 333 -06 FRUI IS AD BLK 7 LOT a • 6A 621 E. 5th Street Rehab in Place 398- 333 -05 FRUITS ADD LK 7 LOT • 6B 508 -510 N. Porter St. Demolish B 7 620 E. 5th Street Demolish 398 - 338 -05 FRUITS AD BLK 8 LOT E 8 712 E. 5th Street Rehab in Place 398 - 337 -03 FRUITS AD BLK 9 LOT8 9 720 E. 6th Street Hold (may demolish) 398 - 334 -05 FRDITS ADD BLOCK 10 LOT 6 10 714 E. 6th Street Hold (may demolish) 398 - 334 -04 FRUITS AD BLOCK I0 LOT 7 11 710 E. 6th Street Hold (may demolish) 398- 334 -03 FRUI I S ADD LOCK 10 Lo 18 1 12 617 E. 6th Street Demolish 398- 311 -08 FFR FTS ADD IOSANTA AN -FAST LOT II WI,Y 721 RUN 1 13 613 E. 6th Street Relocate to 602 E. 6th St. 398 - 311 -0U7 `FRK°SA ADD TOS;ANTA NAEASTLOT7 BLING E I8 FT ON N 1 13A 615 A & BOE. 6th Street Demolish 1 14 609 E. 6th Street Demolish p O 398-311 -06 BLK F(ANDDLOTI SANTA ANA EAST OT] 4 15 623 N. Garfield Street Demolish 398 - 313 -04 SANTA ANA LAST BLK 65 LOIS6 &7 1 16 611 N. Minter Street Demolish 398- 311 -01 1RKIFWIYITO SANTA WLYEI ST LOT LOT 3 BLK F(AND LOT 6 BLK F WIN 100 FT NLY 2760 FI THERE 17 801 Santa Ana Bbd. Demolish 398 - 303 -04 Fbswws 1 OOFLOTs 66 LOT S 13, Ia, =& 18 707 N. Garfield Street Demolish 398- 303 -04 1SANTA N SOFT OF LOTS 66 LOTS 14, IS& 19 911 Brown Street Acquire & Demolish 398- 313 -10 FOAND ANA LAST 500FLOT TS e s 16 BUR 65 20 812E Santa Ana Blvd. Acquire &Demolish 398 - 313 -03 SAM FO &oFUSO4L BK T LL23 &A INIb5 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 Size Maximum Income 1 Person $73,250 5 Persons $113,000 2 Persons $83,700 6 Persons $121,400 Page 1 of 3 Z F 8 - ibit 261 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 80A-262 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 D OCSOC/1400673v 14/200272 -0001 Exhibit "G" 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 Representat ions ........................................ .............................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 1 400673 v 141200272 -0001 80A -266 TABLE OF CONTENTS (Continued) Page 80A -267 305.1 Cost of Construct ion .............................................. .............................32 305.2 Public Art Fee ........................................................ .............................32 305.3 Provision of Child Care Facil ities ......................... .............................32 305.4 Retail Space ........................................................... .............................32 306. Insurance Requirements ........................................................ .............................32 306.I 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 Empl oyment ....................................... .............................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 HousingCounseling .............................................. .............................43 315.5 Subordination ........................................................ .............................45 315.6 Assumpt ion ............................................................ .............................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; Rightto Cure ......................................................... .............................47 316.7 Failure of Holder to Complete Developer Improvements .................. 48 ii DOCSOC /1400673v 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 6I0. Titles and Captions ............................................................... .............................65 611. Interpretation ......................................................................... .............................65 612. No Waiver ............................................................................. .............................65 613. Modifications ........................................................................ .............................65 614. Severabil ity ..................................... ............................... ...........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 1 40D673 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. J. 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 2 D OCSOG 1400673 v 141200272 -0061 80A -271 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 DOCSOG 1400673v 14200272 -0001 80A -272 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. DOCSOC/ I 400673 14 /200272 -0001 80A -273 "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 DOCSOGI400673v 141200272 -0001 80A -274 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 totall 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). DOCSOCI1400673v 14/200272 -0001 80A -275 "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 seq. "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. 7 D O C S OO 1 400673 v 141200272 -0001 80A -276 "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. DOCSOC/ 1400673v 14/200272 -0001 80A -277 "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." DOCSOG1400673v14/200272 -0001 80A -278 "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, 10 DOCSOCJ 1 400673 v 14/200272 -0001 80A -279 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. I1 DOCSOM 400673v 141200272 -0001 80A -280 "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 12 DOCSOG 1400673v 14200272 -0001 80A -281 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: 13 DOCSOC/1400673v 14/200272 -0001 80A -282 (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 14 DOCSOC/1400673v 141200272 -0001 80A -283 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 15 DOCSOG1400673v 141200272 -0001 80A -284 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 16 DOC S O G 1400673 v 14200272 -0001 80A -285 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 17 D O C S O G 1400673 v 14 t 20027 2 -00 n l 80A-286 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. 18 DOCSOG 1400673Y 14/200272 -0001 80A -287 (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. 19 DOCS OG 1400673 v 14 /200272 -0001 (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 Iegal 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. 20 DOCSC J1400673v141200272 -0001 80A -289 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 shalt 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 DeveIoper's execution, delivery and performance of its obligations under this Agreement wilt 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. 21 DOCSOM40067304 @00272 -0001 80A -290 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 80I 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 22 DOCSOC/1400673v 14/200272 -0001 80A -291 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 23 DOC80CJ 1 400673 v 141200272 -0001 80A -292 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 24 DOCS00I 400673v 14/20D272 -0001 80A -293 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 25 DOCSOC1400673v 14/200272 -0001 80A -294 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 26 DOCSOG1400673v 14/200272 -0001 80A -295 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 27 DOCSOC1140067304!200272 -0001 80A -296 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 28 D O C S O G 1400 673 Y 141200272-0001 80A -297 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 29 DOCSOG1400673 v 141200272-0001 80A -298 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 30 DOCSDO1400673v 14/200272.0001 80A -299 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.. 31 D O C S O C1 1400673 v 14!200272 -0001 80A -300 305. 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. 32 DOCSOG 1400673v 14/200272 -0001 80A -301 306.1 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 33 DOCSOG 1400673 v 14/200272 -0001 80A -302 ($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, 34 DOCSOC/140067M41200272 -0001 80A -303 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, DeveIoper'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: 35 DOCSOM 400673 v 14/200272.0001 80A -304 (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, 36 DOCSOG 1400673Y 141200272 -0001 80A -305 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 37 DOC S OC/ 1400673 v l4 /206272 -0001 80A -306 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 39 DOC S OG 1400673 v 14/200272.0001 80A -307 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 39 DOCSOG 1400673 v 14/200272 -0001 80A -308 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 40 DOCSOG 1400673 v 141200272 -0001 80A -309 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 41 DOCSOGI 400673v 7 0200272-0001 1 80A -310 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 42 DOCSOCI 1 400673 v 141200272 -0001 80A -311 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. 43 DOCS001400673v 147200272 -0001 80A -312 (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 44 DOCSOC/ I 400673 14/200272 -0001 80A -313 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 45 DOCS OCI 1400673 v 14/200272 -0001 80A -314 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. 46 DOCSOdt 400673Y 14/200272 -0001 80A -315 316.3 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 47 DO CS OC/1400673 v 14/200272 -0001 80A -316 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 48 DOCSOG1400673v 14200272.0001 80A -317 (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 49 DOCS00 I 400673 14/200272.0001 80A -318 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 50 DOCSUG 1400677v 14/200272 -0001 80A -319 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 Iimitation, 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 PIan" which sets forth in detail the Developer's property management 51 DOCSOG 1400673v t Q200272 -0001 80A -320 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 52 DOCSOC/ 1 400673 v 141200272 -0001 80A -321 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). 53 DOCSOC/1400673A 41200272 -0001 80A -322 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. 54 D 0 CSOG 1400673 v 14200272 -0001 80A -323 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-, 55 DOCSOC/ 1400673Y 141200272 -0001 80A -324 (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. 56 DOC SOCJ 140D673v 141200272 -0001 80A -325 403. 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 shah 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) 57 D DC S 001400673v 141200272 -0001 80A -326 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 I2955.2 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 58 DOCSOU140U673v14200272 -0001 80A -327 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 59 DOCS00 I 400673 14/200272 -0001 80A -328 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 60 DOC SOC/ 1400673v 14/2DD272 -0001 80A -329 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." 61 DOCS00 1400673v141200272 -0001 80A -330 692.2 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 62 DOCSOCI 140067 3v 141200272 -0001 80A -331 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 ply. 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! I 400673 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. ATTEST: Maria D. Huizar, Clerk of the Council DO C SO G 14 00673v 1420 0272 -0001 AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic Cynthia J. Nel on Executive Director [Signature block continues on next page.] 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 }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 is 154 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 /t(aE;ir = Notary range - County authorize capacity(i and that by Orange coumy /her /l1� it signatu a on the instrument the My Comm. Eaplraa Ma 30, 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 — Tille(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 SS. On June 7, 2010 before me Claudia M. FemandezShaw, Notary Public Dale 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 IfiFfAIM11 Notary Public -California Onnpa County MvCcm%M.ExvhsjmnR5.2D14 ~ Place Notary Seal Above who proved to me on the basis of satisfacto evidence to be the person whose name �afe- subscribed to th1within instrument and acknowledged to me that �Oshe/tfitey executed the same in Qt9pe tleir authorized capacity(i i and that by t01herlttiei�-signatu e' on the instrument the perso, or the entity upon behalf of which the person(g) 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. hand and official seal. Signature or Notary Public /I _ OPTIONAL Cl Though the information below is not required bylaw, if 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 -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 Na=(a) 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(1 and 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 iP 1875128 1 certify under PENALTY OF PERJURY under Notary Public • California £ the laws of the State of California that the O. Expires p es J M Comm. - anry foregoing is true and correct. - - - -1- - 9 9 TNESSr�(7c'/ hand and official seal Place Notary Seal Above i �Y�NS✓lg /,nat 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 1'1 DOCSOCR 400673v 141200272 -0001 ATTACHMENT NO. I SITE MAP Agency Parcels ® Phase R -1 Phew R -2 ® Phase FS ATTACHMENT NO. I -1 80A -341 I Segura PmperUes AdcriVonaWmpotbes StaUon District ATTACHMENT NO.2 LEGAL DESCRIPTION Phase FS: DOC SOC/ 1 40D673v 141200272 -0001 ATTACHMENT NO. 2-1 80A -342 Address APN Legal Description 1 609 N. Garfield 398- 313 -07 S^ A^"AEAJWDW12JILKWAINMl.m'uBLK61 2 901 Brown 398- 313 -08 =W 11 K SW YW FT MM SW YMHT it 1"saAEl 3 905 Brown 398- 313 -09 TA � E im M14. 1SN16 -MN Y RELT %� 4 51l E. Fifth Street 398- 332 -07 M=, ADDBLK6LQr3 5 505 E. Fifth Street 398 - 332 -08 IMURSAD1)11LK6LOT2 6 501 E. Fifth Street 398- 332 -09 M=ADDBLK6=I (501 112 & 507 Mortimer) 7 602 -604 E. Sixth Street 398 - 333 -01 MMADDm,Kn.vrlo (511 -517 N. Minter SI) 8 621 E. Fifth Street 398- 333 -05 MoN. ADD SILK 7 LOT (508 & 510 N. Porter) 9 615 E. Fifth Street 398 - 333 -06 mum ADD BI K7 L 4 10 607 E. Fifth Street 398- 333 -08 [RUM. AnD1B.1(7I.m'2 11 601 E, Fifth Street 398 - 333 -09 DRUMS AD U HI.K 7 LM (507 & 505 N. Minter St) 12 712 E, Fifth Street 398- 337 -03 Me rR M>U O1K 911[na 13 606 E. Fifth Street 398- 338 -02 MUnS ADD D 1, K a LOT 14 610 &612 E. Fifth Street 398- 338 -03 MUm ADDn1ICKIMH 15 616 E. Fifth Street 398 - 338 -04 MUM ADD hI Kg 117T 16 620 E. Fifth Street 398- 338 -05 FRUM MD ILK a I=6 DOC SOC/ 1 40D673v 141200272 -0001 ATTACHMENT NO. 2-1 80A -342 Phase R -3- DOCSOC/1400673v 14800272 -0001 ATTACHMENT NO. 2-2 80A -343 Address APN Legal Description 1 611 N. Minter 398 - 311 -01 MUMAPnTOSANfA ANA FWLOf2 DIX 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 FDI.Y TOFT(AND MY7DnLM3 &60LKF 3 709 E. Sixth Street 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 RUTSADPTO SANTA ANA IJTTIW 12 DIX PSELY 7OFTE.Y 5017 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 TIOAROP 6 606 N. Lacy 398 - 311 -12 MUTTS NIDTOSANTA ANAPAWIM 11111 .KFNWLY38FTELY 7 6I4 &618 N. Lac Lacy 398 - 311 -13 MUTTS AIA)TOSANTA ANA FASTI.OT9 DIX F(ANDS4pf WM R L(TT 5 DIX F 8 620 N. Lac 398 - 311 -I4 FRUITS AIM TO SAMT ANA F]MCT 8 DIX FALL .E)(S4 FIT y 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 CTS 4 &5INA1: 10 622 E. Santa Ana Blvd. 398 - 311 -16 MUGS ADO TOS MTA&NA FAST LOT I DIX F SVLY SO FTELY IN FT(ANT) WLY 50 Fr ELY IOOITL(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 N)FT L OTA DLK F 12 622 N. Lacy 398- 311 -18 FRUnSADPT ()SWIA ANA I�!ZrISrt5 DIX F ELY we2 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: O OC S O G 1400673 v l4 /200272 -0001 ATTACID4ENT NO. 2-3 80A -344 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 EAST LM 12 BL 6(A Nln 1 a DI 76 3 601 N. Lacy 398- 312 -08 AC E�UGT 15 DLK76SWLY 107 n(AND SWLY 1071T [SVTA9 4 801 Brown 398- 312 -09 LM 15 DLK76 N Y 43 RAND NT-'LY 43 FrLM 168LK bNAEA 5 618 N. Garfield 398. 312 -15 SANTA ANA EAST 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 S KrA6 AE LM31BLK769DK0rLMANDMR0FLM32 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 (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 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 Ioss 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 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, 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 gcod 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 Iocal 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 I 400673 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 DOCSOC11400673 v 142OD272 -0001 [Signature block begins on follow page.] ATTACHMENT NO. 3 -9 80A -353 ATTEST: Maria D. Huizar, Clerk of the Council APPROVED AS TO FORM: Stradling Yocca Carlson & Rauth, Agency Special Counsel DOCSOCA 400673Y 14/200272 -0001 AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic Un Cynthia J. Nelson Executive Director [Signature block continues on next page.] ATTACHMENT NO. 3 -10 80A -354 DOCSOC/f 400673v1 4120027 2 -000 1 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 LE William A. Witte, President By: Griffin Realty Corporation, a California corporation, its member M Roger N. Torriero, President ATTACHMENT NO. 3 -11 80A -355 DOCSOG I 400673 14120027 2. 0001 1W4111:10 IIs1 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 ❑ Panner(s) Tidc(s) ❑ Limited ❑ General ❑ Attorney -In -Fact ❑ Truslee(s) ❑ Guardian/Conservator ❑ Other: Signer is representing: Name Of Penon(s) Or Entity(in) DOCSOG I 400673 141200272 -0001 DESCRIPTION OF ATTACHED DOCUMENT Title Or Type Of Document Number Of Pages Datc OFDocumcm Signct(s) Othcr Than Named Above 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 ❑ Partner(s) ThZe(s) ❑ Limited ❑ General ❑ Attorney -In -Fact ❑ Trustee(s) ❑ Guardian/Conservator ❑ Other: Signer is representing: Namc Of Pason(s) Or Emity(ics) DOCSOCJ 1400673 v 141200272 -0001 DESCRIPTION OF ATTACHED DOCUMENT 80A -358 Tide Or Type Of Document Number Of Pages Due Of Documemu Signer(s) Other Than Named Abow ATTACHMENT NO.4 BUDGET PHASE RS Santa Ana - Station Dlstrlcl For-Sale P6oforma APM 36, 7010 6M .��ic7f�^�rn.7 L Nee 2Z1 ecT6 sx6m�a�clmsnun:�l�.e'r_ri:^r, Tewnlvnn Damly)yo O0,n0Y BE1' m 14.66 -ea pa00f6 �r- .��ic7f�^�rn.7 sx6m�a�clmsnun:�l�.e'r_ri:^r, s ;rur -�{ 6111x1 �-�• �-, ��t��T- �=:T. ©�mc��o�� �r- �sv *- m��'7F]L"ri'�7 ©�7inrT�ll�m �G..,�"mt -�P7 i1�FPl'7L� p�_i�C7�OCJ �6�7�]Fi43 I T" t- ��i.. T1: liI `7Ei�_�4n�li�..'li•,.I�IJilf. �j}.� IQOK%PWWR6- sw.eee perelmm0e lsY 1'n•�4534�_� 2tTL ltl RemYOm 0 lyyllw.e�. e,66Am6 2e4,666 16632 1a6.66x Qlh, n do%g,fl,, Ceeh 4,16/.2/0 110.131 6703 46y6 TALCOSTOESA 7,13µ60 773.1&3 16681 Gam% OR0596MROM 1 .315.610 AT.66f T••e 1631% !2 OF 263600 - T6T1 &00% teAM0AR1 1RT 3501 2T6 1.60% Im 64400 ti00 1.10 0. TWIS.IAm/f� W,660 tun t." 6.00% DOCSOC11400673v14/200272 -0001 660,660 20,3IY 10]2 103!% ATTACHMENT NO. 4 -1 80A -359 DOCS001400673 Y 14/200272 -0001 PHASE R -1 D4VGGFOn.H mRO• C]GlYivµmD4Tp4fII,WneX Lmuaay..osXe.rem l -N eem- !E %1Mr W MWpasrlm. —I� ply tYy�u�mtauw XWIm YJMem loµµ{ ALW14110X GSQli ]um eNv ntmAepCim� n1CALADDtCDW te10 TAOr®muYILC A `i— elFpLy m.DJ 'd /6acle4 n]!AL@Ob�NALFEPJ ?P F_ colvlvDaTlmemlre Dmrm YEW . W 1�c4P�N L` 4ge�s 1�1�FUSa Imaesa/ammlr... QLCme�s sms.. m aw nn amea�. CmFama_ . coc]tm.�nal amesa.�ma oateeteemta�. �.aa Dee�y 4elr� +sow:w -.mcc t�mm- Fla♦FW xocuanol>oi- lwxanla IQtAYtYlYCmf hP� DrmXEmlm(IR �«lm fmF fa ®Imoa M— ®Im Fw Dmexiamur 1GILF- w.ec rts am IEI.LL FLVnllm�9 ml1] al ma Md.UR ma.a4- wm�,� Lql ru �el>® meorccromy 9 Y.0 A ®�/uyl trml�e onmutra.be! Lt�dgn fr ny EplYawa Itt[µ[R1@A(naR /IDfµflS1G4BA� N se. TGC 'RAC 9WT %d9L ADD D.Xr ROm o% 0 %IOD mt o lAUAOD lax l,�mo ' Rml 16L 'Idi Lm1D>a a% LeR® 31RYD Imlt ]�.® e oX o 0 ox o !N® IWM IRWI 'm'{ltV Y11 0 Ij$M lent 12V,OA amtta ]oat xnxmt W0.fN ImX 9N,OpD ;lloyt ImY >,llNn ]+xmD IOmt )O.00D ®fOtt bolt ®!➢D tOJIO lams enyi 1. tuRX mm LxRb o lox o eAAr0 IOx egop o 0 ox e 141•A!O mt naaou 0 w O !{® IM R(W 100.440 !mt ]4010 IROm lox )P.mO IJI,QC 1m11 RI¢] Y/,M oX 0 !!pU m{ 0 RWJ M 0 0 aX e m,am o% o o w a Iy].oN a mmo ]!0.000 Ifmf Wom mm oR 0 100.440 !mt ]4010 RDiI ]]It 11eD ILLIUm lOx 1411® alyw tmu otm !lame m+l m,® I,OOgom Ix ORmo I.aROA AF '1!q(W Ita]m M 0 1E93O! Af ilgam EaolptID snr w 1OF/ILDh9eo19LCnDXIMmfwce ¢ yl twmpt ¢.ph Wip (1g1ID.oS1 sOTU. oilQmim l[uaggl l lLF�EDA93 Ilymm Xp w+NV.�v IIOX eplSatle FnL 1[lfµt�WSFDDAV Te'i'EmeA�Aa 101µXmlQila4XMIYIEDbAs 1r,91481e Iml4 1laDaue t1! e ltyl],6U ATTACHMENT NO. 4-2 80A -360 DOCSOO 1400673 v 14200272 -0001 PHASE R -2 ncvRal6¢]rcunalwcros aisa pi1]ai6vin6r 4�y�Npa]pOpllY� p. ]i M -1 W 110$0 LL L•�IyM Mp-3A iMVMNPWf�l�� iatlmHipOelOpy] rnlamuenaf oDm MWO 1CIC "IGC b DekR MG1p• mlIXp p-� KWm1UN LdIi SDglm IOTA ]my1 fu�Ftn f0 DM 0 �'AqM (1Q Kim IN 0 TOT/J.NT)slilpllal] OD Op 0 Wnp[ylC®Mm ]qmD IOM na M��• Oa�lEa!] /plm IOM 0•A,® QorMmeCmp/ ma6 1. mom 1muw0iElA0Wtfi5] TmOm all TyOD rcna]a ]BHn] I,1FI0.0 IOM 1.1mpm rnlamuenaf oDm D az D b D ON 0 CCb Depwmh SDglm IOTA ]my1 V'4y3'a -aq F13nu1NmyTV sgml Op D ]ti iywe'm wD.® ImN M60p IfdgI1DOV. a Imx D Wnp[ylC®Mm ]qmD IOM na Aafadl9uva ]31DN1 I" 1.110 �J1 n (DOCmvaf"v� 0 Imfl 0 ia0tm•Ad( Lml D pN D OvYOelSaa. 11.1,1]0 Imx 310}W CeeMacem lr® ImN lr1 b>saaAep mi. Imp min f f� 101,]31 ImN M= Qm]�d+Omtgmia D Imp 0 p- RM(LR9'+O )6W Imp 36615 6m'0ryl OD3gp -NmA- 0 IOM 0 [mCm{m llpq-® 0 fOTI 0 3VGLCW6IWLTONGIp] 310 K ql iM M4M>s I<mhe 0 Cp D LLOyn(4m lg000 Imp Qa]��fv0+0 1 I iA. (hu®m]sfa 0= .oa Im mll dk q= m0 �6mlbol!'0, n ]m.0a Imp 1� =lSnl 11 ;® Op D f�lal�m4em i1JYA OM1 D IavmflMF— VlID OM1 0 pD.lm�mo.e D oK D TCOCIYa > ;mo OM D IYCiprn l]tl D ep D SOTy{'L�DImo W61] uxaa tAlam mmamm id':�!'minlvq.osa o Imp O ly]Li�O IpOm oft 0 4plpu $ROD JDII R[W iIW� %T^� ]0.0A lN4 Lp00 1a1l�Cdelr�0 I[QOL INp Im,Om A16M pSm 10M 1]Jm MmsYa!/apl0® S5m0 6114 Itq® aw].cmfd ilaDD mz im¢0 Wpga'ic slam] ]Dx xq® p0vtm /]v, ¢Om Op D n1IKOnpY4tll] _ IlOaayO at 1'Iym T3CAL pSYpDA16Yim]I] /TMN.6gWEpA9] i1;61Qy5 ]I I,C63b Sol yang ]EU.CT.NIi/�le— A(��Olhpl]Ntlle Lop f1Ap.00D TOtyal/A6S1 ®UUp1MFD FJFa91SM41 T,13031! i(�Ib M60$eLm I))1( lOIyMM!{DtL4d8 ayp i31>,1]! 1VfyGIWOiffilapn ].baW TOmIOSi Odds oll 0 '10LLL'WM161 ®QWA°1 -UeA9] 9jRlll 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 DOCS00 140067304/200272 -0001 ATTACHMENT NO. 5-2 80A -363 • 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 DOCSOO 1400673 v 141200272 -0001 ATTACHMENT NO. 5 -3 80A -364 • 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 IN WITNESS WHEREOF, the Agency has executed this Release as of the date 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 & Rauch, Agency Special Counsel EXHIBrr 6 -2 DOCSOO1400673v14 /200272 -000 t 80A -370 DOCSOGI400673v 14206272 -00DI EXHIBIT A LEGAL DESCRIPTION OF SITE EXHIBIT A TO ATTACHMENT NO. 6 80A -371 STATE OF CALIFORNIA COUNTY OF On personally appeared ss. before me, , Notary Public, (Print Name of Notary Public) 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. 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 ❑ Pariner(s) Tidc(s) ❑ Limited ❑ Cenral Attorney -In -Fact Trustee(s) Guardian/Conservator Other: Signer is representing: Name Of Penon(s) Or EnGly(ies) DOCSOC/1400673v 141200272 -0001 80A -372 OF ATTACHED DOCUMENT Title Or Type Of Document Number Of Pages Dale Of Documems Signer(s) Other Than Named Above 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 Iand 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 PIan 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. DOCSOC/1 400b73v ] 4/200272 -0001 [Signature block begins on follow page.] 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. ATTEST: Maria D. Huizar, Clerk of the Council APPROVED AS TO FORM: Stradling Yocca Carlson & Rauth, Agency Special Counsel DOCS001 400673Y 14/200272 -0001 AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic Cynthia J. Nelson Executive Director [Signature block continues on next page.] ATTACHMENT NO. 7 -6 80A -378 DOCSOG1400673v 141200272 -0001 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 M William A. Witte, President By: Griffin Realty Corporation, a California corporation, its member 0 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, (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 Iaws 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, iL 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 TWOS) 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 Emiry(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 ❑ Pariner(s) ❑ Limited ❑ General ❑ Attorney -In -Fact ❑ Truslee(s) ❑ Guardian/Conscrvator Numbcr Of Pagr ❑ Other: Signer is representing: Name Of Persw(s) Or Entity(ics) Dale Of Documents Signcr(s) Other Than Namcd Above DOCSOCI 1400673 v 1 4120027 2 -000 1 80A -382 $1,500,000 201 ATTACHMENT NO. 8A 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. S. 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 I 400673 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 1 4/200272 -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. DOCSOCI 1 40G673 141200272 -0001 BORROWER: ATTACHMENT NO. 8A -6 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- 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); DOCSOO 1400673v 14/200272 -0001 ATTACHMENT NO. 8B -4 80A -392 (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. DOCS001400673 v 141200272 -0001 ATTACHMENT NO. 8B -5 80A -393 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. ATTACHMENT NO. 8B -6 DOCSOG 1400673 v 14200272 -0001 80A -394 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. DOCSOC/I400677v 14/200292 -0001 BORROWER: ATTACHMENT NO. 8B -7 80A -395 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, DOCS001400673v 141200272.0001 ATTACHMENT NO. 9 -1 80A -396 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 Trustor 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. DOCSOG 1400673 v 141200272 -0001 ATTACHMENT NO. 9 -2 80A -397 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. DO CSOG1400673v 141200272.00DI ATTACHMENT NO. 9 -3 80A -398 ARTICLE IV EVENTS OF DEFAULT AND REMEDIES Section 4.1 Events of Default Defined. The occurrence of any failure of the Trustor 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, DOCSOM 400673 v 141200272 -0001 ATTACIIMENI' NO. 9-4 80A -399 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 thereafter,_ 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 Trustor 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 Trustor 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 DOCSOC 1400673v 14/100272.0001 ATTACHMENT NO. 9-5 80A -400 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 ATTACHMENT NO. 9-6 DOCSOC/1400673v 14/200272.0001 80A -401 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 D OC S 001400673 v 141200272 -0001 ATTACHMENT NO. 9 -7 80A -402 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 Iaws 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 ATTACHMENT NO. 9 -8 DOCSOG 1400673 v 14/200272 -0001 80A -403 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 Iease. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above written. DOC SOC/ L400673v 14!200272.0003 TRUSTOR: By:. Its: ATTACHMENT NO. 9 -9 80A -404 EXHIBIT A LEGAL DESCRIPTION OF PHASE R-- OF PROJECT EXHIBIT A TO ATTACHMENT NO.9 HOC S OG 1 400673 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 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 Tifle(s) Tide Or Type Of Doeument ❑ Partner(s) ❑ Limited ❑ General ❑ Altorney -In -Fact ❑ Trustee(s) ❑ Guardian/Conservator Number OFPages ❑ Other: Signer is representing: Name Of Person(s) Or Entity(tcs) Date ornocumenus Signur(s) Ocher Than Named Above DOC SOC11400673 vl4/200272 -0001 80A -406 ATTACIIMENT NO. 10 ATTACHMENT 10 RESIDUAL RECEIPTS CALCULATIONS Previous Year Current Year Budget Budget Actuaf Difference Operatina Income Rent Payments' Interest Earnings 2 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 ' 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 -000 i 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 seq. 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 con_s_truct_ed 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 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. I. 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 ' I 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 ($ — ll, 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 F oocsoa 14 00673v 141200272-0001 orm of Homebuyer Loan Agreement 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 SOd1400G73 04 1200272 -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 trustor, 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 DOCSOG 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 1 400673 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 "D" 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. D O C S O 01400673 v 141200272-0001 ATTACHMENT NO. 11-9 Form of Homebuyer Loan Agreement 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/1400673v 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 141200272-0001 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 OG 1 400673 v 1 4/200272 -OOD I 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/ 1400673v14200272 -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 F nocsocI 1400673 Y 141200272-0001 orm of Homebuyer Loan Agreement 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 0 ATTEST: Maria D. Huizar, Clerk of the Council APPROVED AS TO FORM: Stradling Yocca Carlson & Rauth, Agency Special Counsel Cynthia J. Nelson Executive Director 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. 11 Legal Description of Property DOCSOCI 1400673v 14@00272 -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 L_ oan 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 DOCS00 1 400673x14/200272.0001 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. S. 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 DOCS00 1 400673 v14 /200272 -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 DOCSOG I 400673 14/200272-0001 Promissory Note 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 DOCSOG 1400677v 141200272 -0001 Promissory Note 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 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 property 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 Slum 38 187 Alpi. 3 130-31 Lake 437 110 ph 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 C.ILTTrat 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 Tulare 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 lnperial 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 EXH11331T 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 Trustor, 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. l I To Deed of Trust With Assignment of Rents Non - Recordable Attachment DOCSOG 1 400673 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 for cancellation before reconve ante will be made. DEED OF TRUST with power of sale TRUSTEE EXHIBIT C -1 TO ATTACHMENT NO. 11 D OCS OG 1400673v 14200272 -000 I To Request for Full Conveyance 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 transferees) 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 Iien, 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 Ioan; (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 Trustor 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 Trustor 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 Trustor 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 Trustor 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 Trustor 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 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 C_OMMUNITY 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 1400577 v I4 /200272 -0001 DOCSOCJ Affordable Housing Resale Restriction 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 DG 1 400673 v 1 4!200272 -000 I 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. EXHIBIT D -5 TO ATTACHMENT NO. 11 DOCSOC/1406673v 14/200272 -00D ] Affordable Housing Resale Restriction 80A -454 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 EXHIBIT D -6 TO ATTACHMENT NO. I 1 0 ocs oG 1400 673 v t 41200272-000 t Affordable Housing Resale Restriction 80A -455 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 I2955 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 EXHIBIT D -7 TO ATTACHMENT NO. 11 DOCSOGI 400673 v 14200272 -0001 Affordable Housing Resale Restriction 80A -456 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 Iaws. 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 uocsoai 400e73 v 14/200272-0001 Affordable Housing Resale Restriction 80A -457 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. EXHIBIT D -9 TO ATTACHMENT NO. 11 Affordable Housing Resale Restriction DOCSOG 1400673 v 14/200272 -0001 80A -458 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 EXHIBIT D -10 TO ATTACHMENT NO. 11 Affordable Housing Resale Restriction DOCSOO I 400673v 141200272 -0001 80A -459 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 greater 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). EXHIBIT D -11 TO ATTACHMENT NO. 11 Affordable Housing Resale Restriction DOCSOG 1400673Y W200272 A00t 80A -460 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 EXHIBIT D -12 TO ATTACHMENT NO. I 1 Affordable Housing Resale Restriction DOCSOC/1400673v 14/200272 -0001 80A -461 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 EXHIBIT D -13 TO ATTACHMENT NO. 11 Affordable Housing Resale Restriction DOCSOGI400673v 14!100272 -oDOI 80A -462 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 DOCSOG 1400673v 141200272 -0001 Affordable Housing Resale Restriction 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 DOCSOGI400673v 14/200272 -0001 Affordable Housing Resale Restriction 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 ATTEST: Maria D. Huizar, Clerk of the Council APPROVED AS TO FORM: Stradling Yocca Carlson & Rauth, Agency Special Counsel Cynthia S. Nelson Executive Director EXHIBIT D -17 TO ATTACHMENT NO. 11 Affordable Housing Resale Restriction DOCSOG 1400673 v 14200272 -0001 80A -466 ATTACHMENT NO.1 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 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" _ . 20_, i_n_B_o_o_k — ._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 DOCSOG7400673v 14I200272.000 l Legal Description 80A -471 ATTACHMENT NO.4 TO AFFORDABLE HOUSING RESALE RESTRICTION REIMBURSEMENT AGREEMENT This REIMBURSEMENT AGREEMENT, dated as of -- 2^ 'Z 0 (`Reimbursement Agreement "), is hereby entered into by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SA_ NTA 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 DOCSOC/ 1400673 v I4r200272 -Ono I Reimbursement Agreement 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 DOCSOG14o0G73v 14!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 14/2110272 -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 DOCSOG1400673v14l200272 -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 DOCSOGI400673v141200272 -000 I Reimbursement Agreement 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. 11 To Reimbursement Agreement DOCSOGI400673v141200272 -0001 Affordable Housing Resale Restriction 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 DOCSOG 1 400673 v 141200272 -0001 Deed of Trust With Assignment of Rents 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 Siena 38 187 Alpine 3 130.31 fake 437 110 Plums 166 1307 Siski3vu 506 762 Aned.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 Sanaenita 300 405 Senislaw 1970 56 Colus. 323 391 Morin 1849 122 S. Bernardino 6213 763 Suter 655 585 Canna Case 4694 1 Mariposa % 453 S. Fmneise. A -B04 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 YCni m 2607 237 HusMeldl WI 83 Mammy 357 239 Sane Clara 6626 667 Y010 769 16 Imperial 1189 701 Napa 704 742 Save Ca¢ 1638 607 Yuba 399 693 Inyo 165 672 Nevada 363 94 SSassa goo 633 K. 3756 690 Orange 7182 IS 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 OCJ14011673v14l200272 -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 DOCSOd1400573v 14!200272 -0001 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 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 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 I 400673 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 /BIT B -4 TO ATTACHMENT NO. 11 To Reimbursement Agreement Deed of Trust Non - Recordable Attachment DOCS00I 400673v 14/200272 -0001 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 -1 TO ATTACHMENT NO. 11 To Affordable Homebuyer Loan Agreement Program Disclosure Statement DOCSOC11400673v14/200272 -0001 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 oocsocI t 400673v t 4J200272-0001 Program Disclosure Statement 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 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. I2- 1 D OCS OC/ 1400673 v 14/200272 -0001 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 1 400673 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 Iaw 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 I 400673 141200272 -0001 80A -492 [Signature block begins on follow page.] ATTACHMENT NO. 12 -5 DOCSOG l 400673v 14/200272 -000! 80A -493 ATTEST: Maria D. Huizar, Clerk of the Council APPROVED AS TO FORM: Stradling Yocca Carlson & Rauth, Agency Special Counsel DOCSOO 1400673v 141200272 -0001 HOMEBUYER: By: Printed Name: By: Printed Name: AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic Cynthia J. Nelson Executive Director ATTACHMENT NO. 12 -6 80A -494 LONV I1 ;_ LEGAL DESCRIMON [to be inserted] EXHIBIT A TO ATTACHMENT NO. 12 OOCS OC/ 1 406673 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