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Item 31 - Density Bonus Agreement No. 2023-02: Residential Development (322 N Harbor Blvd.)
Planning and Building Agency www.anta-ana.org/planning-and-building Item # 31 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report November 21, 2023 Topic: Density Bonus Agreement No. 2023-02: Residential Development (322 N Harbor Blvd.) AGENDA TITLE Density Bonus Agreement No. 2023-02 to Facilitate the Construction of a Rental Residential Development Consisting of 22 Apartment Units, with Two Units Proposed as Affordable to Very Low Income Households RECOMMENDED ACTION 1. Adopt a resolution approving Density Bonus No. 2023-02 as conditioned. RESOLUTION NO. 2023-XXX entitled A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING DENSITY BONUS AGREEMENT NO. 2023-02 AS CONDITIONED FOR A NEW RENTAL RESIDENTIAL DEVELOPMENT WITH TWENTY-TWO UNITS FOR THE PROPERTY LOCATED AT 322 NORTH HARBOR BOULEVARD (APN: 198-051-17) (includes determination that no additional environmental review will be required in accordance with the California Environmental Quality Act as a Notice of Exemption, Environmental Review No. 2022-12 will be filed for this project) 2. Authorize the City Manager to execute a Density Bonus Agreement with P&P Bros Corp., for a 55-year term, for a rental residential development consisting of 22 apartment units, with two units proposed as affordable to very low income households at 322 N. Harbor Boulevard, subject to non -substantive changes approved by the City Manager and City Attorney (Agreement No. 2023-XXX). GOVERNMENT CODE §84308 APPLIES: Yes EXECUTIVE SUMMARY The Jager Company, Ltd. (applicant), on behalf of P&P Bros Corp. (property owner), is requesting approval of Density Bonus Agreement (DBA) No. 2023-02 to allow the construction of a rental residential development consisting of twenty-two (22) apartment units, with two units proposed as affordable to very low income households earning less than 50% of the area median income (AMI), on a 0.34-acre site located at 322 North Harbor Boulevard. As proposed, the project will utilize waivers from development Density Bonus Agreement No. 2023-02: Residential Development (322 N Harbor Blvd.) November 21, 2023 Page 2 standards and/or development concessions through the density bonus agreement pursuant to California Government Code Sections 65915 through 65918 and Santa Ana Municipal Code (SAMC) Section 41-1600 through 41-1607. Moreover, the project requires approval by the Planning Commission and City Council for a density bonus to allow up to 64.71 dwelling units per acre (du/ac). The request satisfies the purpose and intent of the Harbor Mixed Use Corridor Specific Plan (SP2) to provide additional affordable housing stock to an underserved segment of the region's population. As a result, staff recommends approval of the DBA. Planning Commission Action On September 25, 2023, the Planning Commission held a public hearing for the project and unanimously voted to approve Site Plan Review (SPR) No. 2023-02 as conditioned, and to recommend that the City Council approve Density Bonus Agreement No. 2023- 02 with conditions. Following this vote, the item requires City Council approval of the density bonus agreement. DISCUSSION Table 1: Prolect and Location Information Item Information Project Address and Council Ward 322 N. Harbor Blvd. — Ward 1 Nearest Intersection North Harbor Boulevard and West Fifth Street General Plan Designation Urban Neigh borhood-Medi u m High UN-50 Zoning Designation Corridor (CDR) district within the Harbor Mixed Use Corridor Specific Plan SP2 Surrounding Land Uses North Commercial East Vacant South Commercial West Multi -Family Residential Property Size 0.34-acres 14,824 square feet Existing Site Development The site is currently developed with a 1,495 square -foot single st ry commercial building. Use Permissions Multi -Family Residential (permitted under Corridor district within SP2 Zoning Code Sections Affected Uses Article XVI.I (Density Bonus); CDR, Table 3-2. Permitted Uses Development Standards CDR, Tables 3-3 through 3-9. Prolect Description The project includes the construction of a new four-story residential building with flats consisting of 22 apartment units, 3,377 square feet of open space, 22 parking spaces, and five bicycle spaces. The residential development will include 18 one -bedroom units, four two -bedroom units, a fitness room, and a community room/leasing office. Each of the 22 units will contain full kitchens, bedrooms, bathrooms, open/common (living) areas, and private decks. Out of the total units in the development, two units are proposed to be affordable to very low income households earning less than 50% of the area median Density Bonus Agreement No. 2023-02: Residential Development (322 N Harbor Blvd.) November 21, 2023 Page 3 income (AMI), which is currently set at $71,750, adjusted for a four -person household size, as published by California Department of Housing and Community Development (HCD). The project features a contemporary architectural style similar to many multiple -family or mixed -use residential communities under construction in the region and is complementary to the emerging architectural style in the Specific Plan area. The overall design, massing, features, and materials of the new construction will be compatible with, but differentiated from, the existing neighborhood. The contemporary architectural style would include synthetic exterior board siding, stucco finishes, vinyl frame windows, metal railings for proposed decks, wood framed awnings, split -face CMU walls, and high - quality architectural detailing. Moreover, the structure is designed to fully screen all mechanical equipment within the structure and parapet walls. Overall, the project will include a design and solid construction materials that will ensure that the project ages well for the duration of the building's lifetime. Density Bonus The California Density Bonus (Government Code § 65915 et seq.) law allows developers proposing five or more residential units to seek increases in base density for providing on - site housing units in exchange for providing affordable units on site. To help incentivize constructing on -site affordable units, the law allows developers to seek a density bonus that allows a project to exceed local density restrictions, as specified by state law, and up to three incentives/concessions and an unlimited number of waivers that facilitate production of units, which are essentially variances from development standards that would help the project be built without significant burden and without detriment to public health. The first version of the Density Bonus Law was adopted in 1979 and has since been amended at various times. In early 2017, the law was amended to restrict the ability of local jurisdictions to require studies to "justify" the density bonus and requested incentives/waivers and places the onus on local jurisdictions to prove that the incentives/concessions or waivers are not financially warranted. Pursuant to the California Density Bonus law, a project's affordability level is determined by dividing the number of proposed affordable units by the allowable "base" density (i.e., 50 du/ac). Moreover, the State density bonus law states that units added by a density bonus are excluded from the calculations. As outlined by Table 2 below, the base density for the 0.34-acre site at 50 du/ac is 17 units. Out of the total units in the development, two units are proposed to be affordable to very low income. Therefore, the project would provide eleven -percent (11 %) of the base units for very low income households. As such, State density bonus law allows the developer to request a maximum density bonus of 35%. This would allow a project with a total of 23 units, but the applicant is proposing to develop 22 units on the site. Due to the project's 11 % affordability rate, under Government Code Section 65915, the developer can seek two density bonus concessions and unlimited waivers. Density Bonus Agreement No. 2023-02: Residential Development (322 N Harbor Blvd.) November 21, 2023 Page 4 Table 2: Density Bonus Calculation Affordable Unit —11% 2 units)* Density Bonus Calculation Units Allowed Base Density - Stacked Dwelling Building type 0.34 acres x 50 du/ac 17 Units** most "intense" type allowed in CDR 35-Percent State Density Bonus 17 units x 0.35 +6 Units** Total Potential Units 23 Units Proposed Units 22 Units *Affordable unit percentage is calculated excluding units added by a density bonus. **AB 2501 states that any density calculations resulting units shall be rounded up to the next whole number. Applies to: Number of affordable units required to be eligible for the density bonus; Base density i.e. the number of affordable units in the base project); and Eligible bonus units. The purpose of the State's Density Bonus Law is to encourage the development and availability of affordable housing by requiring the inclusion of affordable housing units within new developments. Pursuant to California Government Code Sections 65915 (d)(1) and 65915 (e)(1), a local jurisdiction is limited in its ability to deny requested concessions and waivers and is preempted from denying the increased density required by the Density Bonus Law. Pursuant to Government Code § 65915 (d)(1), a requested concession or incentive shall be granted unless the City makes written findings, based on substantial evidence of any of the following: (1) the concession or incentive does not result in identifiable and actual cost reductions to provide the proposed affordable housing, (2) the concession or incentive would have a specific, adverse impact on public health and safety, or on any real property listed on the California Register of Historical Resources, and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the project unaffordable to low-income and moderate -income households, or (3) the concession or incentive would be contrary to state or federal law. The Density Bonus Law also constrains the ability to deny requested waivers. Subject to exceptions for projects that receive a waiver from controls on maximum density, Government Code Section 65915 (e)(1) provides that the City cannot apply any development standard that would physically preclude the construction of a development entitled to a density bonus at the increased density or with the concessions or incentives, unless the City makes findings that the waiver would have a specific, adverse impact on public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. Although the City has analyzed the project and has identified several areas of concern, the conditions of approval proposed for the project are intended to address any of the project's potential impacts. Table 3 outlines the incentives/concessions and waivers requested by the applicant. Density Bonus Agreement No. 2023-02: Residential Development (322 N Harbor Blvd.) November 21, 2023 Page 5 Table 3: Requested Incentives/Concessions SP2 Standard Requirement Provided Open Space — Common Open Space - 15% of lot Common Open Space - 5% of lot Minimum Common (2,224 square feet) (800 square feet) Open Space (Stacked Dwelling SP-2, Table 3 Onsite Open Space Requires Concession (1 of 2), Cal. building type) Requirements Gov't Code Sec. 65915 d 1 2 B Building Frontage Requires building to provide a Proposed design does not provide a frontage consistent with the SP2. Type and Floor Frontage Type identified. Requires Concession (2 of 2), Cal. Height SP-2, Table 3-4. Frontage Floor Gov't Code Sec. 65915 (d)(1)(2)(B) Height Minimums and Districts • Lot width required for Stacked • Existing lot width is 100 feet Lot Size/Width Dwellings is between 125 feet and (Stacked Dwelling building type) 200 feet. SP2, Table 3-3. Building Type and Requires Waiver, Cal. Gov't Code Form Sec. 65915 (e)(1) • 800 square feet of open space • Minimum 2/3 of open space is provided that is open to sky, required to be open to the sky deficient 682 square feet; does not Onsite Open Space (1,482 square feet) meet definition of courtyard or (Stacked Dwelling Type) • Designed as courtyard of forecourt. forecourt • Open space that is open to the sky SP-2, Table 3-9. Onsite Open Space is design as a deck Requirements Requires Waiver, Cal. Gov't Code Sec. 65915 (e)(1) Onsite Parking In addition, the site is parked in compliance with California Government Code Section 65915 (p)(2)(A) and provides 22 total surface parking spaces or one space per unit. Per the California Density Bonus Law, a jurisdiction cannot impose a vehicular parking ratio that exceeds 0.5 spaces per unit, inclusive of handicapped and guest parking, when the development includes a minimum of 11 % very low income units, is located within one-half mile of a major transit stop, and when there is unobstructed access to the major transit stop from the development. At one space per unit, the proposed development exceeded the minimum required parking ratio by 0.5 space per unit. Analysis of the Issues Density Bonus Agreement Pursuant to Section 41-1607 of the SAMC, because the applicant requested "deviations" (incentives/concessions and waivers), it was subject to review and approval by the Planning Commission. The Planning Commission approved the application with the following findings: 1. The proposed development will materially assist in accomplishing the goal of providing affordable housing opportunities in economically balanced communities throughout the city. 2. The development will not be inconsistent with the purpose of the underlying zone or applicable designation in the general plan land use element. Density Bonus Agreement No. 2023-02: Residential Development (322 N Harbor Blvd.) November 21, 2023 Page 6 3. The deviation is necessary to make it economically feasible for the applicant to utilize a density bonus authorized for the development pursuant to section 41- 1603. Table 4: Analvsis of the Requested Incentives/Concessions (2) and Waivers (2) Standard Analysis Minimum Common Open Table 3-9 (Onsite Open Space Requirements) in the Harbor Mixed -Use Space Requirement Transit Corridor Plan (SP2) requires a minimum of 15% of the lot size to be provided as common open space or plaza space. As proposed, the project provides 5 percent common open space or 800 square feet in the form of a common open deck on the second floor. Strict adherence to this common open space requirement would result in a reduction in the number of units that can be provided in the overall project, thus reducing the applicant's ability to achieving the full 35-percent density bonus to which the applicant is entitled under State Housing Law and affecting the feasibility to construct the project. In order to provide the required common open space and maintain the current proposed unit count, the developer would be required to construct additional floor levels, which would exceed the maximum allowable height as part of the Harbor Mixed Use Transit Corridor Plan (SP-2), and would further increase development costs making the project economically infeasible. To help alleviate the common open space deficiency, the project proposes a 1,477-square-foot community room, a separate fitness room, and an average of 50 square feet of private open space per unit (1,100 square feet total), through use of private balconies/decks for each unit. Building Frontage Type Table 3-4 (Frontage Floor Height Minimums and Districts) of the SP2 indicate and Floor Height that arcade, gallery, shop front, forecourt, stop, and front yard/porch are the six allowed frontage types. As proposed, the project does not identify a frontage type that is consistent with SP2. Maintaining the required frontage type and minimum floor heights would result in a complete site and architectural redesign, involving more of the site area dedicated to the frontages design. In order to maintain the current proposed unit count, the developer would be required to redesign the site and elevation design, further increasing development costs and potentially leading to a loss of residential units, and a loss of further open space. Additionally, adherence to the frontage and floor height minimum requirements would be economically infeasible, as it would require additional cost to provide the materials required for the allowed frontage types. Lot Size/Width (Stacked Table 3-3 (Building Type and Form) of the SP2 required Stacked Dwellings Dwelling building type) to have the minimum lot size dimensions of 130 feet deep and 125-200 feet wide. As proposed, the project is located in a lot with the lot size dimensions of 148.25 feet deep and 100 feet wide. The proposed development is located on an existing lot surrounded by existing commercial and residential development. Specifically, the project is abutting an apartment complex that was first constructed in 1986 to the west and commercial buildings that were constructed in 1962 to the north and south. In order to comply with lot width standards, the developer would be required to purchase a lot to the north or south and demolish the existing Density Bonus Agreement No. 2023-02: Residential Development (322 N Harbor Blvd.) November 21, 2023 Page 7 development on either site. This would result in increasing costs and would make the project infeasible. Moreover, the development site and adjacent properties all have smaller than average lot widths, compared lots along north Harbor Boulevard. These lots range in lot depth and width, but most exceed 200 feet in lot width. In comparison, the site would have a lot width and depth of 148.25 feet deep and 100 feet wide, with a deviation of 25 feet for the minimum required lot width. Although the site has a deviation of 25 feet in the lot width, the applicant's stacked dwelling building design still accomplishes the intention of the SP2 by providing a compatible design and balanced composition of massing on the project site, with appropriate interior floor area and individual unit sizes. Onsite Open Space Pursuant to the Open Space Standards in SP2, the total onsite open space (Stacked Dwelling open to the sky must be two-thirds and designed as a courtyard or forecourt. building type) Based on the lot size for the proposed project, the total onsite open space open to the sky should be 1,482 square feet and designed as a courtyard or forecourt. As proposed, the project will have an 800 square -foot deck. As proposed, the project provides 800 square feet of open space that is designed as a deck open to the sky. The deck will be furnished, landscaped, and connected to the interior 1,477-square-foot community room. The proposed configuration would provide a contiguous 2,277 square feet of open space. Strict adherence to the two-thirds requirement would lead to the elimination of two or more units, which would affect the feasibility to construct the project. In order to maintain the current proposed unit count, the developer would be required to construct additional floor levels or required to provide underground parking, which would further increase development costs and make the project financially infeasible. Moreover, due to the site's limited size, the project proposed podium level parking, and the residential units stacked above the podium parking. Creating a courtyard or forecourt, would result in the project reducing the number of units by two or more in order to adhere to the open space standards. When analyzed cumulatively, the requested concessions and waivers could be avoided if the project were designed on a different site or using a different site plan. If the project were designed on a larger site with a multi -level parking and/or subterranean parking structure, or if the applicant used different building materials to construct a taller project on a larger site, additional area on site would become available to provide the open space requirements and the allowed building frontage type. However, these changes would increase development costs, resulting in the housing project becoming financially infeasible due to the significantly increased financial implications of an alternative construction type compared to the relatively smaller scale of the project. In addition, these changes would reduce the number of units that could be constructed on the site and therefore eliminate the affordable housing units that would result from the project. In addition, the changes would increase development costs and reduce the financial feasibility of redeveloping the site, resulting in the affordable housing project becoming financially infeasible due to the significantly increased financial implications. Lastly, the proposed deviations are necessary to make the project economically feasible for the Density Bonus Agreement No. 2023-02: Residential Development (322 N Harbor Blvd.) November 21, 2023 Page 8 applicant to utilize a density bonus authorized for the development pursuant to Section 41- 1603 of the SAMC. Affordable Housing Opportunity and Creation Ordinance (AHOCO) The proposed development is subject to the requirements of the City's Affordable Housing Opportunity and Creation Ordinance (AHOCO), which requires rental unit developments to provide a minimum number of affordable units, depending on the proposed affordability level (i.e., low income, very low income, extremely low income, or a combination). In this case, the developer is proposing to provide very low income units. Pursuant to the AHOCO, the applicant is required to provide ten percent (10%) very low income onsite affordable units. Therefore, two very low income units would be required to be provided onsite to be rented for occupancy, or held vacant and available for immediate occupancy, by very low income tenants. The developer is proposing to satisfy the AHOCO by providing two onsite rental units for rent to very low income tenants. These units will be dispersed throughout the community and will each contain one bedroom and will be approximately 633 square feet in size (gross area), with a 50-square-foot deck. The developer's Inclusionary Housing Plan has been reviewed and approved by the City's Housing Division, which determined the unit type to be restricted as affordable (i.e., one -bedroom) based on the breakdown of total unit types proposed (e.g., 18 one -bedroom units proposed). Public Notification and Community Outreach Project notifications were posted, published, and mailed in accordance with City and State regulations. In addition, staff contacted the provided contacts for the Riverview West and Santa Anita Neighborhood Association to ensure they were aware of the project and public hearing. At the time this report was printed, no issues of concern were raised regarding the proposed development. ENVIRONMENTAL IMPACT Pursuant to the requirements of the California Environmental Quality Act (CEQA), an Environmental Impact Report (EIR) was prepared and certified in 2014 in order to address the potential environmental impacts associated with the Harbor Mixed Use Corridor Specific Plan. A mitigation monitoring and reporting program (MMRP), findings of fact, and a statement of overriding consideration were adopted with the 2014 EIR. As proposed, the development is not anticipated to have additional environmental impacts not addressed in the 2014 EIR. Therefore, no additional environmental review will be required. Based on this analysis, a Notice of Exemption, Environmental Review No. 2022-12 will be filed for this project. However, all applicable mitigation measures in the original EIR and associated MMRP will be enforced. FISCAL IMPACT There is no fiscal impact associated with this action. Density Bonus Agreement No. 2023-02: Residential Development (322 N Harbor Blvd.) November 21, 2023 Page 9 EXHIBIT(S) 1. Resolution — Density Bonus Agreement 2. Draft Density Bonus Agreement 3. September 25, 2023 — Planning Commission Staff Report and Exhibits Submitted By: Minh Thai, Executive Director of Planning and Building Agency Approved By: Steven A. Mendoza, Acting City Manager RESOLUTION NO. 2023-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING DENSITY BONUS AGREEMENT NO. 2023-02 AS CONDITIONED FOR A NEW RENTAL RESIDENTIAL DEVELOPMENT WITH TWENTY-TWO UNITS FOR THE PROPERTY LOCATED AT 322 NORTH HARBOR BOULEVARD (APN: 198-051-17) 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 Jager Company, Ltd. (Applicant), on behalf of P&P Bros Corp. (Property Owner), is requesting approval of Density Bonus Agreement (DBA) No. 2023-02 to allow the construction of a rental residential development, consisting of twenty-two apartment units with two units proposed as affordable to very low income households earning less than 50 percent of the area median income (AMI) for the property located at 322 N. Harbor Boulevard. B. The Harbor Mixed Use Transit Corridor Specific Plan was adopted in 2014 to lay the foundation for a more livable and sustainable corridor by creating zoning to allow for new housing and mixed -use development opportunities, providing development flexibility to meet market demands, using a multimodal approach to circulation, and creating a stronger identity for the area. The regulating plan, which establishes land uses and development standards, allows a variety of housing and commercial projects, including affordable residential communities, live/work units, service and retail, and professional offices. C. The California Density Bonus law allows developers to seek increases in base density for providing on -site housing units in exchange for providing affordable units on site. To incentivize constructing on -site affordable units, the law allows developers to seek a density bonus that allows a project to exceed local density restrictions, as specified by state law, as well as incentives/concessions or waivers that would help the project be built without significant burden and without detriment to public health. D. The Applicant's request has been thoroughly evaluated by the City's Development Review Committee (DRC) through Development Project No. 2022-03. Through this review, the DRC has considered the subject site, proposed development, and the Applicant's requests for a density bonus, and Resolution No. 2023-XXX Page 1 of 12 requested incentives/concessions and waivers pursuant to the State's Density Bonus Law. E. Section 41-1607 of the Santa Ana Municipal Code (SAMC) requires an application for a density bonus agreement containing deviations (incentives/concessions and/or waivers) to be approved by the Planning Commission. F. On September 25, 2023, the Planning Commission of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral and unanimously voted to approve Site Plan Review (SPR) No. 2023-02 as conditioned, and recommended that the City Council approve Density Bonus Agreement No. 2023-02 as conditioned. G. On November 21, 2023, the City Council of the City of Santa Ana held a duly noticed public meeting and at that time considered all testimony, written and oral. H. The City Council determines that the following findings, which must be established in order to grant this Density Bonus Agreement application pursuant to SAMC Section 41-1607, have been established for Density Bonus Agreement No. 2023-02 to allow construction of the proposed project: 1. That the proposed development will materially assist in accomplishing the goal of providing affordable housing opportunities in economically balanced communities throughout the city. The proposed development will provide twenty-two residential rental units, including two units for very low income households, contributing toward the City's rental housing stock to serve the needs of diverse and underserved populations. The area in which the project is proposed, the Harbor Mixed Use Transit Corridor, currently contains a mix of uses, including single-family residential, medium and medium -high density apartments, townhomes, and neighborhood- serving commercial. The construction of this project will contribute toward an economically balanced community by providing housing for different demographic and income levels in an area rich with employment opportunities, commercial development, and market -rate housing. 2. That the development will not be inconsistent with the purpose of the underlying zone or applicable designation in the general plan land use element. Resolution No. 2023-XXX Page 2 of 12 The project site is in an area already identified in both the City's Zoning Code (the Harbor Mixed Use Transit Corridor) and General Plan (the Land Use and Housing elements) for new residential communities. Moreover, the City's General Plan land use designation for the project site is Urban Neighborhood - Medium High (UN-50), which allows for the development of semi -urban villages that are well connected to schools, parks, and shopping centers. These areas are accessible by multiple modes of transportation, have lively and pedestrian -friendly streetscapes, and are designed to foster community interaction. This designation allows a mix of uses, including medium and medium -high density apartments, townhomes, garden- or motor -court homes, and neighborhood- serving commercial. Mixed -use projects are allowed in both horizontal configurations, with commercial and residential uses side -by - side, and vertical, with commercial uses on the ground floor and residential above. Lastly, the proposed density of 64.71 dwelling units per acre (du/ac) is within the limits established by the California Density Bonus Law for an eleven -percent affordability rate for two very -low income units. 3. That the deviation is necessary to make it economically feasible for the Applicant to utilize a density bonus authorized for the development pursuant to section 41-1603. The proposed project requires two deviations through incentives/concessions: (1) minimum common open space and (2) building frontage type/floor height; as well as two deviations through a waiver; (1) lot size/width; and (2) onsite open space (i.e., open to the sky, open space design, and interior open space). The deviations are described as follows: Minimum Common Open Space Requirement Table 3-9 (Onsite Open Space Requirements) in the Harbor Mixed -Use Transit Corridor Plan (SP2) requires a minimum of 15 percent of the lot size to be provided as common open space or plaza space. As proposed, the project provides 5 percent common open space or 800 square feet in the form of a common open deck on the second floor. Strict adherence to this common open space requirement would result in a reduction in the number of units that can be provided in the overall project, thus not achieving the full 35-percent density bonus to which the Applicant is entitled and affecting the feasibility to construct Resolution No. 2023-XXX Page 3 of 12 the project. In order to provide the required common open space and maintain the current proposed unit count, the developer would be required to construct additional floor levels, which would exceed the maximum allowable height as part of the Harbor Mixed Use Transit Corridor Plan (SP-2), and would further increase development costs making the project economically infeasible. To help alleviate the common open space deficiency, the project proposes a 1,477-square- foot community room, a separate fitness room, and an average of 50 square feet of private open space per unit (1,100 square feet total), through use of private balconies/decks for each unit. Building Frontage Type and Floor Height Requirement (Incentive/Concession) Table 3-4 (Frontage Floor Height Minimums and Districts) of the SP2 indicate that arcade, gallery, shop front, forecourt, stop, and front yard/porch are the six allowed frontage types. As proposed, the project does not identify a frontage type that is consistent with SP2. Maintaining the required frontage type and minimum floor heights would result in a complete site and architectural redesign, involving more of the site area dedicated to the frontages design. In order to maintain the current proposed unit count, the developer would be required to redesign the site and elevation design, further increasing development costs and potentially leading to a loss of residential units, and a loss of further open space. Additionally, adherence to the frontage and floor height minimum requirements would be economically infeasible, as it would require additional cost to provide the materials required for the allowed frontage types. Lot Size/Width (Stacked Dwelling building type) (Waiver) Table 3-3 (Building Type and Form) of the SP2 required Stacked Dwellings to have the minimum lot size dimensions of 130 feet deep and 125-200 feet wide. As proposed, the project is located in a lot with the lot size dimensions of 148.25 feet deep and 100 feet wide. The proposed development is located on an existing lot surrounded by existing commercial and residential development. Specifically, the project is abutting an apartment complex that was first constructed in 1986 to the west and commercial buildings that were constructed in 1962 Resolution No. 2023-XXX Page 4 of 12 to the north and south. In order to comply with lot width standards, the developer would be required to purchase a lot to the north or south and demolish the existing development on either site. This would result in increasing costs and would make the project infeasible. Moreover, the development site and adjacent properties all have smaller than average lot widths, compared lots along north Harbor Boulevard. These lots range in lot depth and width, but most exceed 200 feet in lot width. In comparison, the site would have a lot width and depth of 148.25 feet deep and 100 feet wide, with a deviation of 25 feet for the minimum required lot width. Although the site has a deviation of 25 feet in the lot width, the Applicant's stacked dwelling building design still accomplishes the intention of the SP2 by providing a compatible design and balanced composition of massing on the project site, with appropriate interior floor area and individual unit sizes. Onsite Open Space (Stacked Dwelling building type) (Waiver) Pursuant to the Open Space Standards in SP2, the total onsite open space open to the sky must be two-thirds and designed as a courtyard or forecourt. Based on the lot size for the proposed project, the total onsite open space open to the sky should be 1,482 square feet and designed as a courtyard or forecourt. As proposed, the project will have an 800 square - foot deck. As proposed, the project provides 800 square feet of open space that is designed as a deck open to the sky. The deck will be furnished, landscaped, and connected to the interior 1,477-square-foot community room. The proposed configuration would provide a contiguous 2,277 square feet of open space. Strict adherence to the two-thirds requirement would lead to the elimination of two or more units, which would affect the feasibility to construct the project. In order to maintain the current proposed unit count, the developer would be required to construct additional floor levels or required to provide underground parking, which would further increase development costs and make the project financially infeasible. Moreover, due to the site's limited size, the project proposed podium level parking, and the residential units stacked above the podium parking. Creating a courtyard or forecourt, would result in the project reducing the number of units by two or more in order to adhere to the open space standards Section 2. In accordance with the California Environmental Quality Act (CEQA) and the CEQA Guidelines, an Environmental Impact Report (EIR) was prepared and Resolution No. 2023-XXX Page 5 of 12 certified in 2014 in order to address the potential environmental impacts associated with the Harbor Mixed Use Plan. A mitigation monitoring and reporting program (MMRP), findings of fact, and a statement of overriding consideration were adopted with the 2014 EIR. As proposed, the development is not anticipated to have additional environmental impacts not addressed in the 2014 EIR. Therefore, no additional environmental review will be required. Based on this analysis, a Notice of Exemption, Environmental Review No. 2022-12 will be filed for this project. However, all applicable mitigation measures in the original EIR and associated MMRP will be enforced. Section 3. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, referendum, and other proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. Section 4. The City Council of the City of Santa Ana, after conducting the public hearing, hereby approves Density Bonus Agreement No. 2023-02 as conditioned in Exhibit A attached hereto and incorporated as though fully set forth herein. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Planning Commission Action dated September 25, 2023, and exhibits attached thereto; the Request for City Council Action dated November 21, 2023, and exhibits attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. [Signatures on the following page] Resolution No. 2023-XXX Page 6 of 12 ADOPTED this 21St day of November 2023, by the following vote: Valerie Amezcua Mayor APPROVED AS TO FORM: Sonia R. Carvalho City Attorney IS Jose Montoya Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Resolution No. 2023-XXX Page 7 of 12 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, , City Clerk, do hereby attest to and certify the attached Resolution No. 2023-XX to be the original resolution adopted by the City Council of the City of Santa Ana on , 2023. Date: City Clerk City of Santa Ana Resolution No. 2023-XXX Page 8 of 12 EXHIBIT A Conditions for Approval for Density Bonus Agreement Application No. 2023-02 Density Bonus Agreement Application No. 2023-02 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The Applicant must comply with each and every condition listed below prior to exercising the rights conferred by the Density Bonus Agreement. The Applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation/termination of the Density Bonus Agreement. 1. All proposed site improvements must conform to the Development Project (DP) approval of DP No. 2022-03. 2. Any amendment to the DP No. 2022-03, including modifications to approved materials, finishes, architecture, site plan, landscaping, unit count, mix, and square footages must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or if the Development Project Review must be amended. 3. All mechanical equipment shall be screened from view from public and courtyard areas. 4. Prior to issuance of building permits, the Applicant shall submit a construction schedule and staging plan to the Planning Division for review and approval. The plan shall include construction hours, staging areas, parking and site security/screening during project construction. 5. Prior to issuance of building permits, the Applicant shall provide written notification to the residential community located to the west of the site. This notification shall include comprehensive information about the nature of the proposed activities, anticipated timelines, and contact information for inquiries. The notification shall be delivered via certified mail. Additionally, a designated representative shall be available to address any concerns or inquiries raised by the residential community during this notification period. 6. Prior to issuance of building permits, the Applicant shall submit to the Planning Division and have approved a Parking Management Plan (PMP). The PMP shall Resolution No. 2023-XXX Page 9 of 12 provide for measures to address any parking shortages that may result from the project, with terms including but not limited to: a. Requiring onsite parking permits (such as stickers or hang -tags) for any parking in the onsite parking spaces for both residents and guests; b. Policies for maximum time vehicles may be parked in the surface parking spaces, including any guest parking; and c. Policies for towing unauthorized vehicles; vehicles parked in unauthorized locations, such as fire lanes; vehicles parking in surface guest parking without a sticker, hang -tag, or other identifiers; and vehicles parked longer than any maximum guest parking timeframes allowed. 7. Two weeks prior to the commencement of construction, notification must be provided to property owners within 500 feet of the project site disclosing the construction schedule, including the various types of activities that would be occurring throughout the duration of the construction period. 8. Prior to installation of landscaping, the Applicant shall submit representative photos and specifications of all trees to be installed on the project site for review and approval by the Planning Division. Specifications shall include, at a minimum, the species, box size (24 inches minimum), brown trunk height (10-foot minimum), and name and location of the supplier. 9. After project occupancy, landscaping and hardscape materials must be maintained as shown on the approved landscape plans. 10. Prior to final occupancy, a Property Maintenance Agreement must be recorded against the property. The agreement will be subject to review and applicability by the Planning and Building Agency, the Community Development Agency, the Public Works Agency, and the City Attorney to ensure that the property and all improvements located thereupon are properly maintained, Applicant (and the owner of the property upon which the authorized use and/or authorized improvements are located if different from the Applicant) shall execute a maintenance agreement with the City of Santa Ana which shall be recorded against the property and which shall be in a form reasonably satisfactory to the City Attorney. The maintenance agreement shall contain covenants, conditions and restrictions relating to the following: a. Compliance with operational conditions applicable during any period(s) of construction or major repair (e.g., proper screening and securing of the construction site; implementation of proper erosion control, dust control Resolution No. 2023-XXX Page 10 of 12 and noise mitigation measure; adherence to approved project phasing etc.); b. Compliance with ongoing operational conditions, requirements and restrictions, as applicable (including but not limited to hours of operation, security requirements, the proper storage and disposal of trash and debris, enforcement of the parking management plan, and/or restrictions on certain uses); c. Ongoing compliance with approved design and construction parameters, signage parameters and restrictions as well as landscape designs, as applicable; d. Ongoing maintenance, repair and upkeep of the property and all improvements located thereupon (including but not limited to controls on the proliferation of trash and debris about the property; the proper and timely removal of graffiti; the timely maintenance, repair and upkeep of damaged, vandalized and/or weathered buildings, structures and/or improvements; the timely maintenance, repair and upkeep of exterior paint, parking striping, lighting and irrigation fixtures, walls and fencing, publicly accessible bathrooms and bathroom fixtures, landscaping and related landscape improvements and the like, as applicable); e. If Applicant and the owner of the property are different (e.g., if the Applicant is a tenant or licensee of the property or any portion thereof), both the Applicant and the owner of the property shall be signatories to the maintenance agreement and both shall be jointly and severally liable for compliance with its terms; f. The maintenance agreement shall further provide that any party responsible for complying with its terms shall not assign its ownership interest in the property or any interest in any lease, sublease, license or sublicense, unless the prospective assignee agrees in writing to assume all of the duties and obligations and responsibilities set forth under the maintenance agreement; g. The maintenance agreement shall contain provisions relating to the enforcement of its conditions by the City and shall also contain provisions authorizing the City to recover costs and expenses which the City may incur arising out of any enforcement and/or remediation efforts which the City may undertake in order to cure any deficiency in maintenance, repair or upkeep or to enforce any restrictions or conditions upon the use of the property. The maintenance agreement shall further provide that any Resolution No. 2023-XXX Page 11 of 12 unreimbursed costs and/or expenses incurred by the City to cure a deficiency in maintenance or to enforce use restrictions shall become a lien upon the property in an amount equivalent to the actual costs and/or expense incurred by the City; and h. The execution and recordation of the maintenance agreement shall be a condition precedent to the Certificate of occupancy. Resolution No. 2023-XXX Page 12 of 12 RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council Free Recording pursuant to Government Code 27383 DENSITY BONUS HOUSING AGREEMENT (322 N. Harbor Boulevard, Santa Ana, California; APN: 198-051-17) This DENSITY BONUS HOUSING AGREEMENT ("Agreement"), made and entered into this day of , 2023 ("Effective Date"), by and between the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"), and P & P Bros Corp., a California Corporation ("Developer"). City and Developer are sometimes referred to collectively as the "Parties" and individually as a "Party." RECITALS A. Developer is the owner of certain property located within the City of Santa Ana, County of Orange, State of California, commonly known as 322 N. Harbor Boulevard, Santa Ana, California, 92703, and legally described as set forth in Exhibit A attached hereto and incorporated herein by this reference as if set forth in full ("Property"). B. Developer is proposing to construct a residential development consisting of no more than twenty-two (22) residential rental units on the Property, as more particularly set forth in Density Bonus Application No. 2022-3 and Development Site Plan Review No. 2022-2 ("Project"). Without the density bonus, Developer would only be permitted to building seventeen (17) units on the Property. C. Santa Ana Municipal Code sections 41-1600, et seq. ("City Density Bonus for Affordable Housing"), and California Government Code sections 65915, et seq. ("State Density Bonus Law"), set forth a process to provide increased residential densities and/or incentives, concessions, or waivers to property owners who guarantee that a portion of their residential development will be available to low income, very low income, or senior (also known as "qualified") households. These regulations are intended to materially assist the housing industry in providing adequate and affordable housing for all economic segments of the community and to provide a balance of housing opportunities for very low income, low income and senior households throughout the city. D. The project is proposing a total of twenty-two (22) residential units, including two (2) units for very -low income households. Pursuant to California Government Code sections 1 65915(p)(2)(A), the Project will provide twenty-two (22) total onsite parking spaces or 1 space per one -bedroom and two -bedroom units. No parking concession is requested or provided. E. For the purpose of implementing this State Density Bonus Law onsite parking standard incentive, Developer has agreed to restrict eleven percent (I I %) of the units, in the Project to very low income households, which will result in two (2) Affordable Units, as defined. F. The Project complies with the affordable housing requirements set forth in the State Density Bonus Law and City Density Bonus for Affordable Housing. For purposes of this Agreement, the Project shall be the "housing development" as defined in the State Density Bonus Law. G. In light of the purpose of the State Density Bonus Law and City Density Bonus for Affordable Housing, and the express provisions of Government Code Sections 65915 (d)(1)(2)(B), and 65915(e)(1), the City has determined to approve the application with two (2) concessions and two (2) waivers. H. This Agreement, and the exhibits attached hereto and incorporated herein by reference, are intended to set forth the terms and conditions for the implementation of the Project's requirement to provide affordable housing units in exchange for receiving the density bonus incentive set forth herein. NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein by this reference, and of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. DEFINITIONS AND EXHIBITS 1.1 Definitions. In addition to the terms that may be defined elsewhere in this Agreement, the following terms when used in this Agreement shall be defined as follows: 1.1.1 "Adjusted for family size appropriate to the unit" shall have the meaning set forth by Health and Safety Code Section 50052.5(h). 1.1.2 "Affordable Rent" means the maximum Monthly Rent that may be charged to and paid by an Eligible Household for the Affordable Units, as required by the terms of this Agreement, and which shall not exceed one -twelfth (1/12) of the product of thirty percent (30%) times fifty percent (50%) times the Median Income for Orange County, as defined in Section 1.1.16. The Affordable Rent shall be adjusted to reflect a reasonable utilities allowance for utilities paid by the household using the Santa Ana Housing Authority Multi -Family Housing Utility Allowance Schedule, and shall be updated no less than annually. 1.1.3 "Affordable Rent Schedule" means a rent schedule established as of the date of issuance of an occupancy permit (exclusive of tenant utility payments or security deposits) for the required number/percentage of the total number of units in the Project which are to be 2 rented or available for rent to Very Low Income Tenants. Said Affordable Rent Schedule shall be established at the time of the issuance of the occupancy permit ("Initial Rent Schedule") and shall be created in accordance with the Orange County, California Primary Metropolitan Statistical Area ("PMSA") as published by the California Department of Housing and Community Development ("HCD"), adjusted for family size, and shall be updated no less than annually. 1.1.4 "Affordable Units" means two (2) units, which shall be comprised of two (2) one -bedroom units for Very Low Income Tenants. Any change to the number or distribution of Affordable Units is subject to City Manager approval. 1.1.5 "Agreement" means this Density Bonus Housing Agreement. 1.1.6 "City" means the City of Santa Ana, California 1.1.7 "City Council" means the City Council of the City of Santa Ana. 1.1.8 "City Attorney" means the City Attorney for the City of Santa Ana. 1.1.9 "City Manager" means the City Manager for the City of Santa Ana. 1.1.10 "City's Planning Commission" means the Planning Commission for the City of Santa Ana. 1.1.11 "Density Bonus Housing Agreement Term" means the period during which this Agreement shall be in full force and effect, as provided for in Section 6.1 below. 1.1.12 "Developer" means P & P Bros Corp, a California Corporation, and its permitted successors and assigns to all or any part of the Property. "Developer" may also be referred to as "Owner" interchangeably throughout the Agreement. 1.1.13 "Effective Date" means the date the City Council of City approves this Agreement and from then on this Agreement shall be in full force and effect. 1.1.14 "Eligible Household" means a Household whose income does not exceed the qualifying limit for a "Very Low Income Tenant" as defined herein. 1.1.15 "Household" means all persons residing in a Unit. 1.1.16 "Median Income" means the Orange County, California area median income, adjusted for family size appropriate to the unit, pursuant to California Health and Safety Code § 50052.5(h), as periodically published by HCD. 1.1.17 "Monthly Rent" means the total of monthly payments for (a) use and occupancy of each Affordable Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Developer which are required of all tenants, other than security deposits, application fees or credit check fees, (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 or cable service, to the extent applicable and charged to a Household, 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 Developer. In the event that certain utility charges are paid by the landlord rather than the tenant, no utility allowance shall be deducted from the rent for that type of utility charge. 1.1.18 "Project" means that certain residential development as more particularly described in Recital B and Section 2 of this Agreement. 1.1.19 "Property" means that certain real property more particularly described in the legal description in Exhibit A and improvements thereon. 1.1.20 "State Density Bonus Law" means Government Code sections 65915, et seq., as they exist on the Effective Date. 1.1.21 "Unit" means a residential dwelling unit within the Project to be constructed by the Developer pursuant to this Agreement. 1.1.22 "Unrestricted Units" means the Units within the Project to be constructed by Developer to a Household without restriction. 1.1.23 "Very Low Income Tenant" means a Household whose income does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. 1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: 1.2.1 Exhibit A — Legal Description of the Property 1.2.2 Exhibit B — Tenant Verification 1.2.3 Exhibit C — Annual Tenant Recertification 1.2.4 Exhibit D — Annual Rental Housing Compliance Report 1.2.5 Exhibit E — Notice of Affordability Restrictions on Transfer of Property 2. DEVELOPMENT OF THE PROPERTY 2.1 Project. Developer shall develop, operate, and maintain, or cause the development operation and maintenance of, the Property as a twenty-two (22) Unit residential development, with two 2 Affordable Units for Very Low Income Tenants. 2 2.2 Density Bonus. The base density for the Property is seventeen (17) dwelling units. By agreeing to provide two (2) Affordable Units, Developer understands and agrees that the State Density Bonus Law would allow a maximum density bonus of thirty-five percent (35%), which would equate to six additional units. Pursuant to this Agreement, Developer proposes and agrees to a Project that includes only five (5) additional Units ("Density Bonus Units"). Accordingly, the Project shall have twenty-two 22) Units, including two 2 Affordable Units, to be rented, occupied, operated, and maintained pursuant to the terms and conditions of this Agreement. Developer shall not construct or develop, or otherwise claim a right to construct or develop, any additional Units on the Property. 2.3 Development Incentives and Waivers. Developer petitioned for concessions, incentives, and waivers, and has been granted the following, as part of the approval of Density Bonus Application (DBA) No. 2023-02 for the Project: 2.3.1 Concessions. In accordance with Government Code Section 65915 (d)(1)(2)(B), Developer is granted the following concessions: (a) Relief from the 15-percent minimum common open space requirements as set forth in Table 3-9 (Onsite Open Space Requirements) as part of the Harbor Mixed -Use Transit Corridor Specific Plan (SP-2). (b) Relief from the frontage design types within the Corridor land use district, as set forth in Table 3-4 (Frontage Floor Height Minimums and Districts) as part of the Harbor Mixed -Use Transit Corridor Specific Plan (SP-2). 2.3.2. Waivers. In accordance with Government Code Section 65915(e)(1), Developer is granted the following waivers: (a) A waiver of the minimum lot width requirement of between 125 feet and 200 feet for Stacked Dwellings, as set forth in Table 3-3 (Building Type and Form) as part of the Harbor Mixed -Use Transit Corridor Specific Plan (SP- 2), provided that the lot width is a minimum of 100 feet. (b) A waiver of the requirement for two-thirds of the common open space area to be open to the sky and placed at the rear or side yard, or in the front as a forecourt, as part of the Harbor Mixed -Use Transit Corridor Specific Plan (SP-2), provided that at least five -percent (5%) of the lot is open to the sky. 2.3.3. Parking Requirements. The Project's onsite parking shall comply with Government Code section 65915(p)(2)(A). No additional parking concession is requested or provided. The Project will provide twenty-two (22) total onsite parking spaces or one (1) space per one -bedroom and two -bedroom units. 2.4 No Further Concessions or Incentives. Developer acknowledges and agrees that the incentives, concessions, and waivers set forth in section 2.3 above fully satisfy any duty City may have under the Santa Ana Municipal Code, the Density Bonus Law, or any other law or 5 regulation to provide any development incentive or to waive any building, zoning, or other requirement in return for providing Affordable Units. By this Agreement, Developer releases any and all claims Developer may have against City in any way relating to or arising from City's obligation to waive requirements of or provide development incentives pursuant to any state, federal, or local law, rule, or regulation applicable to the Project. 2.5 Unrestricted Units. The Project, for purposes of this Agreement, may have no more than twenty (20) Unrestricted Units, which shall be comprised of sixteen (16) one -bedroom units and four (4) two -bedroom units. 2.6 Affordable Units. The Project, for purposes of this Agreement, shall have no less than two 2 Units, which shall be comprised of two (2) one -bedroom units designated as Affordable Units pursuant to the terms and conditions of this Agreement. The Affordable Units shall be consistent with all City approvals, comparable in bedroom distribution and amenities to the Unrestricted Units, and shall be located throughout the Project as required under Santa Ana Municipal Code section 41-1602(c)(5). 2.7 Minimum Development Standards for Affordable Units. The Affordable Units shall be constructed with the same exterior appearance and interior features, fixtures, and amenities, and shall use the same type and quality of materials as provided for any Unrestricted Units. 2.8 Permits and Processing Compliance with Laws. Developer, at its sole cost and expense, shall secure or cause to be secured any and all permits that may be required by City or any other federal, state, or local governmental entity having or claiming jurisdiction over the Property or Project. Upon securing any and all permits, Developer shall carry out and perform the development, operation, and maintenance of the Project in conformity with all applicable federal, state, and local laws and regulations, and all conditions of approval issued by the City Council and City's Planning Commission for the Project. Any changes to the Project shall be reviewed by the City to determine compliance with this Agreement. If any changes to the Project shall materially alter the ability of Developer to comply with any terms of this Agreement in City's sole determination, then City shall have the option to declare this Agreement null and void in its sole discretion. 2.9 Relocation Prior to Development of Project. If relocation is required prior to the completion of development of the Project, Developer shall have the sole and exclusive responsibility for providing relocation assistance and paying all relocation costs as may be required to comply with applicable federal and state laws and regulations. In addition to any other indemnity provided by Developer under this Agreement, Developer shall indemnify, defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent), and hold harmless City and all of its officials, officers, employees, representatives, volunteers and agents from any and all alleged or actual claims, causes of action, liabilities, and damages from any third party for relocation assistance, benefits and costs prior to the completion of the development of the Project. 2 2.10 Local Sourcing Plan. Developer agrees to make a good faith effort to encourage contractors and suppliers to hire and procure locally, to the extent that it is cost effective and does not delay the overall project development schedule. 2.11 Mechanic's Liens; Indemnification. Developer shall take all actions reasonably necessary to remove any future mechanic's liens or other similar liens (including design professional liens) against the Property or Project, or any part thereof, by reason of work, labor, services, or materials supplied or claimed to have been supplied to Developer or anyone holding the Property or Project, or any part thereof, through or under Developer. Prior to the recording of this Agreement (or memorandum thereof) pursuant to Section 4.1 below, Developer shall provide evidence from the Title Company of any new recordings against the Property or Project. City hereby reserves all rights to post notices of non -responsibility and any other notices as may be appropriate upon a filing of a mechanic's lien. In addition to any other indemnity provided by Developer under this Agreement, Developer shall indemnify, defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent), and hold harmless City and all of its officials, officers, employees, representatives, volunteers and agents from any and all alleged or actual claims, causes of action, liabilities, and damages from any third party by reason of a mechanic's lien or work, labor, services, or materials supplied or claimed to have been supplied to Developer or anyone holding the Property or Project, or any part thereof, through or under Developer. 3. AFFORDABILITY 3.1 Total Affordability Term. Each Affordable Unit shall be restricted to use and occupancy by an Eligible Household for a total period of no less than fifty-five (55) years ("Total Affordability Term"). The Total Affordability Term for an Affordable Unit shall commence on the date a certificate of occupancy is issued for the initial Affordable Unit. 3.2 Memorializing Commencement of Total Affordability. Developer shall keep detailed records of the commencement date of the Total Affordability Term for each Affordable Unit. City shall have the right to review and verify said records to ensure that the commencement date specified by Developer for an Affordable Unit coincides with the date that the initial Affordable Unit received all permits from City required for occupancy of the Unit. In the event that a conflict exists between the date specified by Developer for the commencement of the Total Affordability Term for an Affordable Unit and the date specified by City's issuance of all required permits for occupancy of the Unit, the date specified by City's issuance of all required permits for occupancy of the Unit shall control. 3.3 Levels of Affordability. 3.3.1 Affordable Rent for Very Low Income Tenants. Developer covenants that no less than twos Affordable Units in the Project shall at all times during the Total Affordability Term be rented to, or held vacant and available for immediate occupancy by Eligible Households, at an Affordable Rent. 7 4. OWNERSHIP AND OPERATION OF THE PROJECT BY DEVELOPER 4.1 Payment of Density Bonus Setup Fee. A Density Bonus Setup Fee in the amount of Four Thousand Six Hundred Seventy Five Dollars and Seventy Cents ($4,675.70) will be charged to the Developer and must be paid prior to execution of this Agreement. 4.2 Recording of Documents. No later than issuance of building permits for the Project, Developer and the City shall record or cause to be recorded in the Official Records for Orange County, California, an executed original of this Agreement. City shall cooperate with Developer in promptly executing in recordable form this Agreement. The date of recording of the Agreement shall be the Effective Date of the Agreement. Upon the date of recording, the terms and conditions of this Agreement shall be binding upon and run with the Property and the Project for the Total Affordability Term. It is the express intent and agreement between the Parties that this Agreement shall remain binding and enforceable against the Property, the Project, and the Units to ensure compliance with the State Density Bonus Law and City Density Bonus Law, and to ensure the continued supply of Affordable Units in the Project, except as expressly set forth in this Agreement. 4.3 Rental of Units. Upon the completion of construction of the Project and receipt by Developer of all required permits for the occupancy of the Units, Developer shall rent or cause to be rented each Affordable Unit for the Total Affordability Term for such Affordable Unit in accordance with the terms and conditions set forth in this Agreement, which provide among other terms and conditions for the rental of each Affordable Unit at an Affordable Rent to an Eligible Household for the Total Affordability Term. 4.4 Location of Affordable Units. During the Density Bonus Housing Agreement Term, the Affordable Units shall be dispersed throughout the Project in accordance with the terms and conditions set forth in this Agreement. The Affordable Units shall be permitted to float among all twenty-two (22) apartment units in the Project, provided that the Affordable Units shall be comparable in amenities to the Unrestricted Units and reasonably dispersed throughout the Project. The location of the first two Affordable Units to be occupied will be subject to the City's approved Inclusionary Housing Plan, and identified in the Annual Compliance Report submitted to the City pursuant to Section 4.11.2. 4.5 Occupancy Levels. Subject to state or federal laws and regulations, the number of persons permitted to occupy each Affordable Unit shall not exceed two persons per bedroom, plus one person. In the event that a household residing in an Affordable Unit exceeds the permitted number of persons, then that household shall be placed on a waiting list for the appropriate -sized unit and be eligible for transfer when an appropriate -sized unit becomes available. The household will be placed on the waiting list for up to one -hundred and eighty (180) days. If an appropriate - sized unit does not become available during the 180 days, the Owner will have grounds to terminate that household's lease. If the household refuses to transfer to an appropriate -sized unit then the Developer will also have grounds to terminate that household's lease. 4.5.1 Written Notification. If an Eligible Household, during the term of its tenancy, adds members that exceed the maximum occupancy allowed under this section, Developer shall provide written notification informing the household that: it is over - occupancy; has been placed on a waiting list for up to one -hundred and eighty (180) days; the expiration date of the waiting list; and the terms for terminating the lease. A written status update will be provided to the household at one -hundred and twenty (120) days, ninety (90) days, sixty (60) days and thirty (30) days if applicable. 4.6 Use of the Property. All uses conducted on the Property, including, without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall conform to all applicable provisions of the Santa Ana Municipal Code and other applicable federal, state, and local laws, rules, and regulations. The Project shall at all times during the term of this Agreement be used as an apartment complex and none of the Affordable Units in the Project shall at any time be utilized on a transient basis, nor shall the Property or any portion thereof ever be used as a hotel, motel, dormitory, fraternity or sorority house, rooming house, hospital, nursing home, sanitarium or rest home, or be converted to condominium ownership. All of the community facilities and any social programs provided to the Project's residents shall be available on an equal, nondiscriminatory basis to residents of all Units at the Project. 4.7 Maintenance. Owner shall, at all times during the term of this Agreement, cause the Property and the Project to be maintained in a decent, safe and sanitary manner, regardless of cause of the disrepair. Owner shall be fully and solely responsible for costs of maintenance, repair, addition and improvements. City, and any of its employees, agents, contractors or designees shall have the right to enter upon the Property at reasonable times and in a reasonable manner to inspect the Project. 4.8 Marketing and Resident Selection Plan. Each Affordable Unit shall be leased to Eligible Households selected by the Developer who meet all of the requirements provided herein. Prior to Certificate of Occupancy, Developer shall prepare and obtain City's approval, which approval shall not be unreasonably withheld, of a marketing program and resident selection plan for the leasing of the Affordable Units at the Project ("Marketing Program"). The City shall approve or deny the Marketing Program within ten (10) business days of submittal by the Developer. In the event Marketing Program is neither approved nor denied within said time period, the Marketing Program shall automatically be considered approved. The leasing of the Affordable Units shall thereafter be marketed in accordance with the Marketing Program as the same may be amended from time to time with City's prior written approval, which approval shall not unreasonably be withheld. Upon request, Developer shall provide City with periodic reports with respect to the leasing of the Housing Units. 4.8.1 The Marketing Program shall include, but is not limited to, marketing and community outreach activities, proposed tenant selection criteria, occupancy standards, income requirements, timeline and details for outreach and marketing, data collection, record keeping and monitoring, procedures for complaints, and compliance assessment. Components of the resident selection plan shall include, but are not limited to, the application process, interview procedure, apartment offer and assignment, rejected applications, and wait list management. All requirements set forth herein shall be incorporated in the Marketing Program. 0 4.9 Rental Lease Agreement. Developer shall prepare and obtain City's approval, which approval shall not be unreasonably withheld, of a rental lease agreement ("Lease Agreement"). All Lease Agreements must 1) identify the names and ages of all members of the household who will occupy the Affordable Unit; and 2) state that the Household's right to occupy the Affordable Unit is subject to compliance with the Median Income requirements, adjusted for family size appropriate to the unit, as periodically published by HCD. All Lease Agreements must be consistent with the terms contained in this Density Bonus Agreement. 4.9.1 Prohibited Lease Terms. The Lease Agreement may not contain any of the following provisions: (a) Agreement to be Sued. Agreement by the tenant to be sued, to admit to guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Treatment of Property. Agreement by tenant that the owner may take, hold, or sell personal property of household members without notice to tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing unit after the tenant has moved out of the unit. The Developer may dispose of this personal property in accordance with State law; (c) Excusing Developer of Responsibility. Agreement by the tenant not to hold the Developer of the Developer's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Waiver of Notice. Agreement of the tenant that the Developer may institute a lawsuit without notice to the tenant; (e) Waiver of Legal Proceedings. Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Waiver of a Jury Trial. Agreement by the tenant to waive any rights to a trial by jury; (g) Waiver of Right to Appeal Court Decision. Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Tenant Chargeable with Cost of Legal Action Regardless of Outcome. Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. 4.10 Selection of Tenants. 4.10.1 Developer shall be responsible for the selection of tenants for the Affordable Units in compliance with lawful and reasonable criteria and the requirements of this Agreement. 4.10.2 Subject to applicable laws and regulations governing nondiscrimination and preferences in housing occupancy, the Developer shall give preference in leasing the Affordable Units to Eligible Households that live and/or work in the City of Santa Ana or who have an active 10 Housing Choice Voucher issued by the Housing Authority of the City of Santa Ana or any other Public Housing Authority. 4.10.3 All applicants will be screened and "lotterized." A waiting list will be created from a lottery generated from the initial pool of rental applications. The waiting list will track applicant name and contact information, lottery number (or designated number after the initial lottery), household income, household size, status of application, and any other information deemed necessary. The waiting list will be maintained as an electronic file and available for audit by the City of Santa Ana in accordance with resident selection procedures as set forth herein. 4.10.4 Prior to the rental or lease of an Affordable Unit to a tenant(s), Developer shall require the tenant(s) to execute a written lease and to complete a Tenant Income Verification Form (in substantially the form attached hereto as Exhibit B) certifying that the tenant(s) occupying the Affordable Unit is/are an Eligible Household and otherwise meet(s) the eligibility requirements established for the Affordable Unit. Developer shall verify the income of the tenant(s) as set forth herein. 4.11 Income Verification and Certification. Developer agrees to make a good faith effort to verify that the income and asset statement provided by an applicant in an income certification is accurate by taking, at a minimum, at least one of the following steps as a part of the verification process: (1) obtain three months consecutive pay stubs for the most recent pay period, (2) obtain an income tax return for the most recent tax year, (3) obtain an income verification form from the applicant's current employer, (4) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies, or (5) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. 4.11.1 Gross Household Income. Gross household income means all income from whatever source from all Adult Household members, which is anticipated to be received during the 12-month period following the date of the determination of Gross Household Income. The applicable sources of income are defined in California Code of Regulations Title 25 Housing and Community Development Section 6914. 4.11.2 Annual Recertification. Developer agrees to recertify household eligibility annually. Notification of Annual Tenant Recertification shall be sent to the household in substantially the form attached hereto as Exhibit C. An Annual Rental Housing Compliance Report ("Annual Compliance Report") shall be sent to the City in substantially the form attached hereto as Exhibit D. The Annual Compliance Report shall be due to the City within 30 days of the anniversary of the commencement of the Total Affordability Term, which is the date that each building receives all required occupancy permits from the City. 4.11.3 Continued Income Qualification and Vacated Affordable Units. If the annual recertification demonstrates that a previously eligible tenant's gross household 11 income exceeds the Median Income for the Affordable Unit, the pertinent actions from the following list must be taken: (a) The Developer may offer to rent the unit to the previously, but no longer, Eligible Household as an Unrestricted Unit without any limitations on rental rates. In that case, the Developer must then make available for rent to an Eligible Household another unit within the Project that meets the size and location requirements for Affordable Units under this Density Bonus Agreement. If there are no vacant units meeting those requirements, then the next available unit within the Project which does meet those requirements must be rented to an Eligible Household. (b) If the no longer Eligible Household either moves to another Unrestricted Unit within the Project or leaves the Project altogether, then the vacated Affordable Unit or, at Developer's election any other Unrestricted Unit within the Project which meets the size and location requirements for Affordable Units under this Density Bonus Agreement and has the same number of bedrooms as the vacated unit shall be rented as an Affordable Unit to an Eligible Household. 4.12 Monitoring and Recordkeeping. Throughout the Term of this Agreement, Developer shall annually complete and submit to City the Annual Compliance Report. Owner agrees to pay a reasonable fee, as set by City resolution, for the purpose of paying the actual costs associated with the City's obligation to monitor Owner's compliance with the affordability restrictions contained in this Agreement related to the Affordable Units, not to exceed monitoring costs for up to two (2) Affordable Units. Representatives of City shall be entitled to enter the Property if necessary after review of above documentation, upon at least forty-eight (48) hour notice, to monitor compliance with this Agreement, and shall be entitled to inspect the records of the Project relating to the Affordable Units and to conduct an independent audit or inspection of such records at a location within the City that is reasonably acceptable to the City. Developer agrees to cooperate with City in making the Property and the records of the Project relating to the Affordable Units available for such inspection or audit. Developer agrees to maintain each record of the Project for no less than five (5) years after creation of each such record. Subject to tenants' rights under State and Municipal law, the Developer shall allow the City to conduct annual inspections of each of the Affordable Units on the Property after the date of construction completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the City while conducting such inspections within ten (10) Business Days of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. 4.13 Notice of Affordability Restrictions on Transfer of Property. In the event the Developer wishes to sell or transfer the Project during the Total Affordability Term, the City and the Developer shall execute and deposit into escrow, or record against the Property, a Notice of Affordability Restrictions on Transfer of the Property as contained herein (Exhibit E). The sale or transfer of the Property, shall not be effective unless and until the City and the transferee execute the documents necessary to transfer the Density Bonus Agreement obligations from the Developer to the transferee. 12 4.14 Onsite Parking Management Plan. Developer shall provide onsite parking for residents and visitors of the Project and actively monitor the parking demand of the Project site. Developer shall continually monitor and take the following measures to manage the parking demand of the Project site to mitigate the use of offsite parking spaces on private or public properties and/or right-of-way. a. Requiring onsite parking permits (such as stickers or hang -tags) for any parking in the onsite parking spaces for both residents and guests; b. Policies for maximum time vehicles may be parked in the surface parking spaces, including any guest parking; and c. Policies for towing unauthorized vehicles, vehicles parked in unauthorized locations (such as fire lanes), vehicles parking in surface guest parking without a sticker, hang -tag, or other identifiers, and vehicles parked longer than any maximum guest parking timeframes allowed. Prior to issuance of the Certificate of Occupancy, Developer shall submit and obtain approval from the Planning and Building Agency ("PBA") a Parking Management Plan (the "PMP"), including those measures above. The approved PMP shall be adhered to and be enforced by the Project at all times. 4.15 Alternative Transportation and Energy Source, Resource Conservation, and LEED Certification. While not a condition of the project's Density Bonus, in recognition of the City's desire to optimize the energy efficiency of the project, Developer agrees to consult with the project design team, a CABEC certified 2019 Certified Energy Analyst, a LEED AP Homes (low-rise and mid -rise), LEED AP BD+C (high rise), National Green Building Standard (NGBS) Green Verifier, or GreenPoint Rater (one person may meet both of these latter qualifications) early in the project design process to evaluate a building energy model analysis and identify and consider energy efficiency or generation measures. Prior to the meeting, the energy analyst shall complete an initial energy model based on either current T24 standards or, if the project is eligible, the California Utility Allowance Calculator using best available information on the project. To the extent financially feasible for the project, Developer agrees to incorporate and optimize energy efficient building materials, methods, and amenities. 4.16 Emergency Evacuation Plan. Developer shall submit and obtain approval of an Emergency Evacuation Plan (the EEP) from City Police and Fire Protection agencies prior to issuance of a Certificate of Occupancy. Up-to-date 24-hour emergency contact information for the on -site personnel shall be provided to the City on an ongoing basis and the approved EEP shall be kept onsite and also be submitted to the following City Agencies: a. Police Department b. Fire Department c. Planning and Building Agency d. Community Development Agency 13 4.17 Crime Free Housing. Developer shall work with City staff to formalize a crime free housing policy, procedure, and design plan (the "CFH Plan"), which includes the following provisions: a. Requiring parking areas and common interior areas (lobbies, elevators, etc.) to contain security cameras; b. Requiring routine unit inspections; c. Ensuring lobby/other entrance doors are secured and accessed via remote controls, fobs, etc.; and d. Have policies in place to ensure that common use areas such as hallways and trash enclosures are maintained in good condition and repair (e.g., well -lit, kept clean, etc.) Developer shall submit and obtain approval from the PBA the CFH Plan meeting the requirements of this Subsection 4.18 prior to issuance of the Certificate of Occupancy. The approved CFH Plan shall be implemented and administered by Developer or a designated property manager. 4.18 [Intentionally Omitted] 5. [INTENTIONALLY RESERVED] 6. TERM OF THIS AGREEMENT 6.1 Term. The term of this Agreement ("Density Bonus Agreement Term") shall commence on the Effective Date and shall continue until the expiration of the Total Affordability Term. 7. DEFAULT AND TERMINATION; INDEMNIFICATION 7.1 Default. Failure or delay by any 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 specifying the default (or such other period specifically provided herein), constitutes a default under this Agreement; provided, however, 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 within an additional sixty (60) days following the conclusion of such thirty (30) day period (for a total of ninety (90) days). Except as required to protect against further damages, the injured Party may not institute proceedings against the Party in default until the time for cure has expired. 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 above, should the Developer elect to not proceed with the Project prior to commencement of construction, the Developer shall submit written notice of such termination ("Termination Letter") to the City, which Developer, for itself, its successors and assigns, states that it waives, forfeits, and relinquishes any and all benefits under this Agreement. Upon City's 14 receipt of the Termination Letter, the Parties agree to terminate this Agreement, except that the obligations of Section 4.1 and 7.3 shall survive termination. Developer shall, at its sole cost and expense, prepare and record a Termination of Agreement, which City shall review and approve, in the exercise of reasonable discretion. Such termination shall not be considered a default by any Party, but it shall result in a termination of the Agreement as provided for herein. 7.2 Rights and Remedies Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. Notwithstanding anything to the contrary contained in this Agreement, in no event shall either Party be liable for speculative, consequential, punitive, or other indirect damages arising from a breach of this Agreement, and each Party waives any right to collect speculative, consequential, punitive or other indirect damages against the other Party which arise from a breach of this Agreement. 7.3 Indemnification. In addition to any other indemnity specifically provided in this Agreement, Developer agrees to defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent) indemnify and hold harmless City and its respective officers, officials, agents, employees, representatives, and volunteers (collectively, "Indemnitees") from and against any loss, liability, claim, or judgment arising from any act or omission of Developer in connection with its obligations under this Agreement, except to the extent caused by the active negligence or willful misconduct of Indemnitees.. ASSIGNMENT; COVENANTS RUN WITH THE LAND 8.1 Assignment by Developer. 8.1.1 Prohibited Transfers or Assignments. Developer shall not sell, transfer, or assign the Property or Project in whole or in part, or transfer or assign Developer's rights and obligations in this Agreement, in whole or in part, unless the sale, transfer, or assignment complies with this Section 8 ("Permitted Transfer"). If Developer seeks a Permitted Transfer, Developer shall request City's written consent, and City shall respond within fourteen (14) days with a written approval or denial. The City's determination shall not be unreasonable or arbitrary. If City approves such a request, then prior to any such sale, transfer or assignment, Developer shall pay City's reasonable fees as compensation for the City's review of the request. City's failure to respond to the request within fourteen (14) days shall be deemed an approval. 8.1.2 Sale of Property. Owner agrees and declares that the Property and the Project shall be held, conveyed, mortgaged, encumbered, leased, rented, used, occupied, operated, sold, and approved subject to all obligations set forth or incorporated in this Agreement, all of which are for the purpose of enhancing and protecting the value and attractiveness of the Property and the Project. All of the obligations set forth or incorporated in this Agreement shall constitute covenants which run with the land and shall be binding on Owner and its successors and assigns, and all parties having or acquiring any right, title or interest in, or to any part of the Property or Project. Owner further understands and agrees that the Density Bonus permit approvals received 15 for this Project have been made on the condition that Owner and all subsequent owners, or other successors and assigns of the Property and/or Project lease and rent the Affordable Units in accordance with the terms and conditions stipulated in Sections 4, 5 and 6 of this Agreement for a term of 55 consecutive years commencing upon the date that the Project is first occupied. 8.1.3 Subsequent Assignment. As used in this Agreement, the term "Developer" shall be deemed to include any such transferee or assignee after the date such sale, transfer, or assignment occurs in compliance with this Agreement. 8.1.4 Unpermitted Assignments Void. Any sale, transfer, or assignment made in violation of this Agreement shall be null and void, and City shall have the right to pursue any right or remedy at law or in equity to enforce the provisions of the restriction against unpermitted sales, transfers, or assignments. 8.2 Covenants Run with the Land. The Property shall be held, sold, conveyed, hypothecated, encumbered, used, occupied and improved subject to the covenants, conditions, and restrictions set forth herein. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth in this Agreement shall run with the Property and shall be binding upon Developer and all persons having any right, title or interest in the Property, or any part thereof, their heirs, and successive owners and assigns, shall inure to the benefit of City and its successors and assigns, and may be enforced by City and its successors and assigns. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding for the benefit and in favor of City and its successors and assigns, and the parties hereto expressly agree that this Agreement and the covenants herein shall run in favor of City. City is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own right 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 Agreement and the covenants running with the land have been provided. Developer hereby declares its understanding and intent that the burden of the covenants set forth herein touch and concern the land and that the Developer's interest in the Property is rendered less valuable thereby. Developer hereby further declares its understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Property by the citizens of City and by furthering the health, safety, and welfare of the residents of City. 9. MISCELLANEOUS 9.1 Entire Agreement. This Agreement and all of its exhibits and attachments set forth and contain the entire understanding and agreement of the parties with respect to the Density Bonus Agreement, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 16 9.2 Amendment. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance approved by the City Council, or through the City Manager as detailed herein, and signed on behalf of each party. The City Manager shall have the authority to make approvals, issue interpretations, execute documents, waive provisions, and/or enter into amendments of this Agreement on behalf of City that further the intent of this Agreement. Any requested alteration, change or modification of the Agreement by Developer shall require the payment of fees or deposit by Developer to City, as applicable, for the City's review of the request. Each alteration, change, or modification to this Agreement shall be recorded against the Property in the Official Records of Orange County, California. 9.3 Notices. 9.3.1 Delivery. As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) two (2) days after deposit in the United States mail in a sealed envelope, first class mail and postage prepaid, and addressed to the recipient named below; or (iv) one (1) day after deposit with a known and reliable next -day document delivery service (such as Federal Express), charges prepaid and delivery scheduled next -day to the recipient named below, provided that the sending party receives a confirmation of delivery from the delivery service provider; or (v) the first business day following the date of transmittal of any facsimile, provided confirmation of successful transmittal is retained by the sending Party. All notices shall be addressed as follows: If to City: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Manager With a copy to: Office of the City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 If to Developer: P & P Bros Corp 18685 Main Street, Ste. 101-385 Huntington Beach, California 92648 Attn: Thao Lisa Vu 9.3.2 Change of Address. Either Party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or 17 representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change. 9.4 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 9.5 Interpretation and Governing Law. This Agreement and any dispute hereunder shall be governed and interpreted in accordance with the laws of the State of California without regard to conflict of law principles. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 9.6 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 9.7 Singular and Plural. As used herein, the singular of any word includes the plural, and vice versa, as context so dictates. Masculine, feminine, and neuter forms of any word include the other as context so dictates. 9.8 Joint and Several Obligations. If at any time during the term of this Agreement the Property and/or Project is owned, in whole or in part, by more than one Developer, all obligations of such Developer under this Agreement shall be joint and several, and the default of any such Developer shall be the default of all such Developers. 9.9 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 9.10 Computation of Days. Unless otherwise specified in this Agreement or any Exhibit attached hereto, use of the term "days" shall mean calendar days. For purposes of this Agreement and all Exhibits attached hereto, "business days" shall mean every day of the week except Saturdays, Sundays, official State holidays as recognized in Government Code Section 19853(a) or successor statute, and any days in which Santa Ana City Hall is closed for business. 9.11 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. 9.12 Non -Discrimination. In performing its obligations under this Agreement, Developer shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other related OR activities. Developer affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 9.13 Third Party Beneficiaries. No person or entity, other than City and Developer shall have any right of action based upon any provision of this Agreement. 9.14 Force Majeure. Neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the Party's control (including the Party's employment force), court actions (such as restraining orders or injunctions), or other causes beyond the Party's control, including delays by any governmental entity (although the City may not benefit from this provision for a delay that results from City's failure to perform its obligations under this Agreement), or an insurance company of either party. If any such events shall occur, the term of this Agreement and the time for performance by either Party of any of its obligations hereunder may be extended by the written agreement of the Parties for the period of time that such events prevented such performance. 9.15 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 9.16 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all permitted successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof, and (c) is binding upon each Party and each successor in interest approved pursuant to this Agreement during ownership of the Property or any portion thereof. 9.17 Counterparts. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. 9.18 Jurisdiction and Venue. Any action at law or in equity under this Agreement or brought by a Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, and the Parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. 9.19 Project as a Private Undertaking. It is specifically understood and agreed by and between the Parties hereto that the development of the Project is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this 19 Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property and the Developer of such property. 9.20 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. City hereby authorizes City Manager to take such other actions and negotiate and execute any additional agreements as may be necessary or proper to fulfill the City's obligations under this Agreement. The City Manager may delegate her or his powers and duties under this Agreement to an authorized management level employee of the City. 9.21 Estoppel Certificate. Within ten (10) business days following a written request by any of the Parties, the other Party shall execute and deliver to the requesting Party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding Party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification, except as may be represented by the requesting Party, and that there are no uncured defaults in the performance of the requesting Party, except as may be represented by the requesting Party. 9.22 No Subordination. City's approval of the necessary land use entitlements that authorize Developer to develop, operate, and maintain the Project was based upon Developer's obligation to provide the Affordable Units pursuant to the State Density Bonus Law, City Density Bonus for Affordable Housing, and the terms and conditions of this Agreement. For the Term of the Density Bonus Housing Agreement, this Agreement shall have priority over any and all mortgages, deeds of trust, and other similar forms of secured financing recorded against the Property or any portion thereof. Developer expressly understands and acknowledges that state law requires preservation of affordability covenants in connection with the approval of this density bonus project. 9.23 Attorneys' Fees and Costs. If either Party to this Agreement commences an action against the other Party to this Agreement arising out of or in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs of investigation, and costs of suit from the losing Party. 9.24 Authority to Execute. The person or persons executing this Agreement on behalf of each Party warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants 20 and represents that he or she/they has/have the authority to bind the Party to the performance of its obligations hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Density Bonus Housing Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Jennifer L. Hall City Clerk APPROVED AS TO FORM Sonia R. Carvalho City Attorney By. Jose Montoya Assistant City Attorney City Manager RECOMMENDED FOR APPROVAL: Michael Garcia Executive Director Community Development Agency 21 CITY OF SANTA ANA Kristine Ridge P & P BROS CORP, A CALIFORNIA CORPORATION Thao Lisa Vu Ind Ix"pre tints that Ile 01. she/1 hcy has/hnvc 'lie Inithority to hint! the I'Ilny !o the performance of its ��hligati+rns hrlrundrr. IN WITNESS WILE FOF, the pa1'tieS hereto have Caused this Density 13onuS !lousing Agiv nlent to be executed on the date set forth at the beginning of this Agreement. ATTIrST: Jennifer L. Hall City Clerk APPROVED AS TO FORM Sonia R. Carvalho City Attorney By: Jose Montoya Assistant City Attorney City Manager RECOMMENDED FOR APPROVAL: Michael Garcia Executive Director Community Development Agency 21 CITY OF SANTA ANA Kristine Ridge P & P BROS CORP, A CALIFORNIA CORPORATION 41,xi-k� Th o Lisa Vu EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA ANA, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THE NORTH 100 FEET OF THE SOUTH 300 FEET OF THE EAST HALF OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 10 WEST, SAN BERNARDINO BASE AND MERIDIAN. EXCEPTING THEREFROM THE WEST 132 FEET. ALSO EXCEPT THEREFROM ALL OIL, GAS, MINERALS AND HYDROCARBONS, BELOW A DEPTH OF 500 FEET, WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESERVED IN INSTRUMENTS OF RECORD. APN: 198-051-17 22 INCOME VERIFICATION FORM Inclusionary Unit Address: Head of Household (Print Name): Current Address (if different from above): Telephone Number: Home: Email address: Date of Birth: Work: Social Security # or TIN: Household Composition Cell: List All Household Members Living in the Inclusionary Unit Dependent Social Security # Name Sex Age (Y/N) or Taxpayer ID # List additional household members on a separate sheet of paper. Income Verification Form Page 1 Santa Ana, California EXHIBIT "B" INCOME VERIFICATION FORM Monthly Gross Income * List All Sources of Income of All Household Members Living in the Inclusionary Unit Part 1: Earned Income Other Head of Household Household Members Total 1. Gross wages, before payroll deductions and $ $ $ including overtime pay, commissions, fees, tips and bonuses. 2. Net income from self employment, independent $ $ $ contractor work or a business. 3. Social security and any payments from annuities, $ $ $ insurance policies, pension/retirement funds, disability or death benefits received periodically. 4. Payment in lieu of earnings, such as $ $ $ unemployment, disability compensation, worker's compensation and severance pay. 5. Public assistance, welfare payments $ $ $ 6. Alimony, child support, other periodic allowances $ $ $ 7. Regular pay, special pay and allowances of $ $ $ members of the Armed Forces 8. Other $ $ $ Subtotal: Monthly Earned Income $ Total Monthly Earned Income x 12 = $ Total Annual Household Gross Earned Income Income Verification Form Page 2 Santa Ana, California EXHIBIT "B" INCOME VERIFICATION FORM Monthly Gross Income * List All Sources of Income of All Household Members Living in the Inclusionary Unit Part 2: Investment Income Total Other Adult Household Head of Household Investment Household Members Income 1. Interest paid on Bank and Savings accounts $ $ $ 2. Dividends and other payments from stocks and $ $ $ bonds 3. Income from real property (i.e. rental property) $ $ $ 4. Other (describe) $ $ $ Subtotal: Monthly Investment Income: $ Total Monthly Investment Income x 12 = $ Total Annual Household Investment Income *Note: The following items are not considered income: casual or sporadic gifts; amounts specifically for or in reimbursement of medical expenses; lump sum payments such as inheritances, insurance payments, capital gains and settlement for personal or property losses; educational scholarships paid directly to the student or educational institution; special pay to a serviceman head of family away from home and under hostile fire; relocation payments under federal, state or local law; foster child care payments; value of coupon allotments for purpose of food under Food Stamp Act of 1964 which is in excess of amount actually charged the eligible household; payments received pursuant to participation in the following programs: VISTA, Service Learning Programs, and Special Volunteer Programs, SCORE, ACE, Retired Senior Volunteer Program, Foster Grandparent Program, Older American Community Services Program, and National Volunteer Program to Assist Small Business Experience. Income Verification Form Page 3 Santa Ana. California EXHIBIT "B" INCOME VERIFICATION FORM Assets ** List the Current Value of All Assets of All Household Members Living in the Inclusionary Unit If the Asset generates income, that income must be specified In Part 2 above Head of Household Other Adult Household Members Total Value of Value Value Assets 1. Bank and Savings accounts $ $ $ 2. Stocks and bonds $ $ $ 3. Real property (i.e. rental property) $ $ $ 4. Other (describe) $ $ $ Total Asset Value $ **Note: Necessary items, such as furniture and automobiles, used for personal use are excluded from household assets. Collections of items for hobby, investment or business purposes must be included in household assets. If the total value of household assets exceeds $5,000, the calculation of the household's annual income shall include the greater of the actual amount of income, if any, derived from all of the household assets; or 10% of the total value of the assets. Income Verification Form Page 4 Santa Ana, California EXHIBIT "B" INCOME VERIFICATION FORM If the total asset value exceeds $5,000, perform the calculations in the following table. If the total asset value is less than $5,000, the amount of investment income to be included in annual household income is $0. Calculation of Investment Income to be Included in Annual Household Income 1. Total Annual Household Investment Income $ 2. Total Asset Value $ x 10% $ The Greater of #1 or #2 = Investment Income to be Included in Annual Household Income $ Calculation of the Household's Total Annual Income Total Annual Household Gross Earned Income 1 $ Total Investment Income to be Included in Annual Household Income Total Household Income 1 $ Documentation Attach True Copies of the Relevant Documents Listed Below Paycheck stubs from three most recent pay periods Employment verification Three years Income tax returns for Title Holders Social security verification Alimony/child support verification Other (Describe) Bank/Savings account verification Self-employment verification Unemployment verification Welfare verification Disability income verification Income Verification Form Page 5 Santa Ana. California AFFIDAVIT This Affidavit is made with the knowledge that it will be relied upon by and the City of Santa Ana to determine maximum income for eligibility to purchase the Inclusionary Unit listed above. (1/we) warrant that all information set forth in this document is true, correct and complete and based upon information (1/we) deem reliable and based upon such investigation as (1/we) deemed necessary. (lMe) acknowledge that (1/we) have been advised that the making of any misrepresentation or misstatement in this affidavit will constitute a material breach of (my/our) purchase agreement and will additionally enable the seller to terminate the purchase contract and sell the Inclusionary Unit to another party. (lMe) do hereby swear under penalty of perjury that the foregoing statements are true and correct and that this affidavit has been executed as of the date specified below by each adult member of the household which intends to occupy an Inclusionary Unit located at Signature Printed Name Executed at Signature Printed Name ,Santa Ana, California. Date Santa Ana, California Date Executed at , Santa Ana, California Affidavit Page 6 Santa Ana, California ATTACHMENT C -- 2 ANNUAL TENANT INCOME VERIFICATION FORM Hummistravve vroceoures Manual April 27, 2023 Rental Residential Development TENANT INCOME VERIFICATION FORM 2021 AFFORDABLE HOUSING OPPORTUNITY AND CREATION ORDINANCE CITY OF SANTA ANA Table 1: Annual Household Gross Earned Income 1 List All Sources of Earned Income for all Adult Household Members Living in the Inclusionary Unit Other Adult Head of Household Household Members Total 1. Gross amount, before payroll deductions of $--$- $ wages, salaries, overtime pay, commissions, fees, tips and bonuses 2. Net income from business $ $ $ 3. Social security, annuities, insurance policies, $ $ $ pension/retirement funds, disability or death benefits received periodically 4. Payment in lieu of earnings, such as $ $ $ unemployment, disability compensation, worker's compensation and severance pay 5. Public assistance, welfare payments $ $ $ 6. Alimony, child support, other periodic $ $ $ allowances 7. Regular pay, special pay and allowances of $ $ $ members of the Armed Forces 8. Other $ $ $ Subtotal: Monthly Earned Income $ Total Monthly Earned Income x 12 = $ Total Annual Household Gross Earned Income 1 The following items are not considered income: casual or sporadic gifts; amounts specifically for or in reimbursement of medical expenses; lump sum payments such as inheritances, insurance payments, capital gains and settlement for personal or property losses; educational scholarships paid directly to the student or educational institution; special pay to a serviceman head of family away from home and under hostile fire; relocation payments under federal, state or local law; foster child care payments; value of coupon allotments for purpose of food under Food Stamp Act of 1964 which is in excess of amount actually charged the eligible household; payments received pursuant to participation in the following programs: VISTA, Service Learning Programs, and Special Volunteer Programs, SCORE, ACE, Retired Senior Volunteer Program, Foster Grandparent Program, Older American Community Services Program, and National Volunteer Program to Assist Small Business Experience. Administrative Procedures Manual Rental Residential Development Page 1 April 27, 2023 Table 2A., Household Assets 2 List the Value of All Assets Owned by all Adult Household Members Living in the Inclusionary Unit Other Adult Head of Household Return @ 10% Household Members Total of Total I. Bank & savings accounts $ $ $ $ 2. Stocks and bonds $ $ $ $ 3. Real property $ $ $ $ 4. Other $ $ $ $ Table 2B: Income Earned Annually from Household Assets List the Actual Annual Return on All Assets Owned by all Adult Household Members Living in the Inclusionary Unit Other Adult Head of Household Household Members Total 1. Bank and savings accounts $ $ $ 2. Stocks and bonds $ $ $ 3. Real property $ $ $ 4. Other $ $ $ The return on Household assets to be included in the Gross Income calculation is set at the greater of the two amounts shown on the following page: z Necessary items, such as furniture and automobiles, used for personal use are excluded from household assets. Collections of items for hobby, investment or business purposes must be included in household assets. Under California Government Code Section 6914, if the total value of household assets exceeds $5,000, the calculation of the household's annual income shall include the greater of the actual amount of income, if any, derived from all of the household assets; or 10% of the total value of the assets. Tenant Income Verification Form Page 2 Administrative Procedures Manual: Rental Housing Development April 27, 2023 Table 2C Annual Asset Income to be Added to Annual Household Gross Earned Income 10%Annual Return Actual Return Return to be Applied 1. Bank and savings accounts $ $ $ 2. Stocks and bonds $ $ $ 3. Real property $ $ $ 4. Other $ $ $ Total Annual Return to be Added to Annual Household Gross Earned Income $ The total Gross Household Income is equal to the sum of the following: Table 3: Calculation of the Household's Total Annual Gross Income Annual Household Gross Earned Income (Table 1) $ Annual Asset income (Table 2C) $ Total Annual Household Gross Income $ Income Documentation Attach True Copies of the Relevant. Documents Listed Below Paycheck stubs from two most recent pay periods Employment verification Income tax return Social security verification Alimony/child support verification Other (Describe) Bank/Savings account verification Self-employment verification Unemployment verification Welfare verification Disability income verification Tenant Income Verification Form Page 3 Administrative Procedures Manual: Rental Housing Development April 27, 2023 AFFIDAVIT This Affidavit is made with the knowledge that it will be relied upon by the City of Santa Ana, our landlord and the owner of our apartment building, to determine maximum income for eligibility. (1/we) warrant that all information set forth in this document is true, correct and complete and based upon information (1/we) deem reliable and based upon such investigation as (1/we) deemed necessary. (I/We) acknowledge that (1/we) have been advised that the making of any misrepresentation or misstatement in this affidavit will constitute a material breach of (my/our) rental agreement with the property owner to rent the unit and will additionally enable the property owner to initiate and pursue all applicable legal and equitable remedies with respect to the unit and to me/us, (I/We) do hereby swear under penalty of perjury that the foregoing statements are true and correct and that this affidavit has been executed as of the date specified below by each adult member of the household which intends to occupy an Inclusionary Unit located at Ana, California. Signature Printed Name Executed at Date Santa Ana, California Signature Date Printed Name Executed at , Santa Ana, California ,Santa Tenant Income Verification Form Page 1 Administrative Procedures Manual: Rental Housing Development April 27, 2023 ATTACHMENT C - 3 NO INCOME CERTIFICATION Aaministrative vrocedures Manual April 27, 2023 Rental Residential Development NO INCOME CERTIFICATION FOR HOUSEHOLD MEMBER (NAME) certify that as of (DATE), I am not receiving any type of income including, but not limited to, wages and salaries, overtime pay, commissions, fees, tips, bonuses, or any other compensation for personal services, net income from the operation of a business or profession, dividends or interest, net income from any kind of real or personal property, Social Security, annuities, retirement funds, pensions, death or disability benefits, unemployment or disability compensation, workers compensation, severance pay, welfare or other public assistance, alimony, or child support. By this Certification, I declare under penalty of perjury that all of the foregoing information is true and correct. Misrepresentation or misstatement may be a violation of law that could result in a fine, criminal penalty or a default on the Inclusionary Housing Regulatory Agreement made in conjunction with the rental of this Inclusionary Unit. Signature Print Name Date Administrative Procedures Manual Page 1 Rental Residential Development April 27, 2023 Exhibit D ANNUAL RENTAL RESIDENTIAL DEVELOPMENT COMPLIANCE REPORT 2021 AFFORDABLE HOUSING OPPORTUNITY AND CREATION ORDINANCE CITY OF SANTA ANA Project Name: Project Address: Total Number of Units in the Project: Compliance Report Completed By: Phone Number: Date: Reporting Period: Number of Very Low Income Units: Unit # Household Name Household Size Household Income Number of Bedrooms Calculation of Net Monthly Rent Date First Occupied Date of Last Income Recertification Gross Rent Minus: Net Rent Other Utility Mandatory Allowance Payments Administrative Procedures Manual: Page 1 Rental Residential Development 8/22/2023 Administrative Procedures Manual: Page 2 Rental Residential Development 8/22/2023 FXHTRIT F NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY NOTICE IS HEREBY GIVEN that the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, has entered into a Density Bonus Agreement with P & P Bros Corp., a California Corporation ("Property Owner"). The Density Bonus Agreement imposes income and affordability covenants on a twenty two (22) unit affordable housing development project ("Project") located at 322 N. Harbor Boulevard, Santa Ana, Orange County, Assessor's Parcel Number 198051-17, and further described in the legal description provided in Exhibit A to the Density Bonus Agreement. The Density Bonus Agreement was recorded as Document/Instrument Number [TO BE INSERTED], and shall remain in effect until fifty five (55) years from the date a certificate of occupancy is issued for all units in the Project. Among other things, the Density Bonus Agreement requires as follows: (a) two (2) one -bedroom units (the "Affordable Units") shall be restricted for occupancy to a household that qualifies as a "Very -Low Income Tenant," which is defined to mean a household whose income does not exceed fifty (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, and (b) the rent for the Affordable Unit shall not exceed one -twelfth (1/12) of the product of thirty percent (30%) times fifty percent (50%) times the Median Income for Orange County, as adjusted to reflect a reasonable utilities allowance. In the event the Property Owner wishes to sell or transfer the Project during the Affordability Period, the City and the Property Owner shall execute and deposit into escrow this Notice of Affordability Covenants on Transfer of the Property. The sale or transfer of the Property shall not be effective unless and until the City and transferee execute the documents necessary to transfer the Density Bonus Agreement obligations from the Property Owner to the transferee. This Notice of Affordability Covenants on Transfer of the Property in no way modifies the provisions of the Density Bonus Agreement. In the event of any conflict between this Notice of Affordability Covenants on Transfer of the Property and the Density Bonus Agreement, the terms of the Density Bonus Agreement shall prevail. IN WITNESS WHEREOF, the Parties hereto have duly executed this Notice of Affordability Restrictions on Transfer of Property as of the dates set forth below. [Signatures on Following Pages] SIGNATURE PAGE TO NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY CITY: CITY OF SANTA ANA A California Charter City and Municipal Corporation Name: Kristine Ridge Its: City Manager Date: APPROVED AS TO LEGAL FORM: Uzz SIGNATURE PAGE TO NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY PROPERTY OWNER: P & P Bros Corp A California Corporation Name: Thao Lisa Vu Its: Date: 2. SITE PLAN REVIEW NO. 2023-02 AND DENSITY BONUS AGREEMENT NO. 2023-02 FOR THE PROPERTY LOCATED AT 322 NORTH HARBOR BOULEVARD LOCATED IN THE CORRIDOR (CDR) LAND USE DISTRICT WITHIN THE HARBOR MIXED USE TRANSIT CORRIDOR SPECIFIC PLAN (SP2) Project Applicant: The Jager Company, Ltd. (Applicant) on behalf of P&P Bros Corp. (Property Owner) Proposed Project: Applicant is requesting approval of Site Plan Review (SPR) No. 2023- 02 and Density Bonus Agreement (DBA) No. 2023-02 to allow the construction of a rental residential development consisting of twenty-two apartment units, with two units proposed as affordable to very low-income household earning less than 50-percent of the area median income (AMI). Environmental Impact: Pursuant to the California Environmental Quality Act (CEQA) and the CEQA Guidelines, the project is exempt from further review. Categorical Exemption ER No. 2022-12 will be filed for this project. Recommended Action: • Adopt a resolution approving Site Plan Review No. 2023-02 and Density Bonus Agreement (DBA) No. 2023-02 as conditioned. Planning and Building Agency Item # 2 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Planning Commission Staff Report September 25, 2023 Topic: Residential Development at Site Plan Review No. 2023-02 and Density Bonus Agreement No. 2023-02 (322 N. Harbor Blvd.) RECOMMENDED ACTION 1. Adopt a resolution approving Site Plan Review No. 2023-02 as conditioned. 2. Adopt a resolution approving Density Bonus Agreement No. 2023-02 as conditioned. EXECUTIVE SUMMARY The Jager Company, Ltd. (applicant), on behalf of P&P Bros Corp. (property owner), is requesting approval of site plan review (SPR) No. 2023-02 and density bonus agreement (DBA) No. 2023-02 to allow the construction of a rental residential development consisting of twenty-two apartment units, with two units proposed as affordable to very low-income households earning less than 50-percent of the area median income (AMI), on a 0.34-acre site located at 322 North Harbor Boulevard. As proposed, the project requires review and approval of an SPR as the development would be over three stories in height. In addition, the project will utilize waivers from development standards and/or development concessions through the density bonus agreement pursuant to California Government Code sections 65915 through 65918 and Santa Ana Municipal Code (SAMC) Section 41-1600 through 41- 1607. Moreover, the project requires approval by the Planning Commission and City Council for a density bonus to allow up to 64.71 dwelling units per acre (du/ac). The request satisfies the purpose and intent of the Harbor Mixed Use Corridor Specific Plan (SP2) to provide additional affordable housing stock to an underserved segment of the region's population. As a result, staff recommends approval of the SPR and DBA. DISCUSSION Table 1: Project and Location Information Item Information Project Address and Council Ward 322 N. Harbor Blvd. — Ward 1 Nearest Intersection North Harbor Boulevard and West Fifth Street General Plan Designation Urban Neighborhood -Medium High UN-50 9/25/2023 Planning Commission 2-1 SPR No. 2023-02 and DBA No. 2023-02 (322 N Harbor Blvd.) September 25, 2023 Page 2 Zoning Designation Corridor (CDR) district within the Harbor Mixed Use Corridor Specific Plan SP2 Surrounding Land Uses North Commercial East Vacant South Commercial West Multi -Family Residential Property Size 0.34-acres 14,824 square feet Existing Site Development The site is currently developed with a 1,495 square -foot single st ry commercial building. Use Permissions Multi -Family Residential (permitted under Corridor district within SP2 Uses Article XVI.I (Density Bonus); CDR, Zoning Code Sections Affected Table 3-2. Permitted Uses Development CDR, Tables 3-3 through 3-9. Standards Project Description The project includes the construction of a new four-story residential building with flats consisting of twenty-two apartment units, 3,377 square feet of open space, twenty-two parking spaces, and five bicycle spaces. The residential development will include eighteen one -bedroom units, four two -bedroom units, a fitness room, and a community room/leasing office. Each of the twenty-two units will contain full kitchens, bedrooms, bathrooms, and open/common (living) areas, and private decks. Of the total units in the development, two units are proposed to be affordable to very low-income households earning less than 50-percent of the area median income (AMI), which is currently set at $71,750, adjusted for a four -person household size, as published by California Department of Housing and Community Development (HCD). The project features a contemporary architectural style similar to many multiple -family or mixed -use residential communities under construction in the region and is complementary to the emerging architectural style in the Specific Plan area. The overall design, massing, features, and materials of the new construction will be compatible with, but differentiated from the existing neighborhood. The contemporary architectural style would include synthetic exterior board siding, stucco finishes, vinyl frame windows, metal railings for proposed decks, wood framed awnings, split -face CMU walls, and high -quality architectural detailing. Moreover, the structure is designed to fully screen all mechanical equipment within the structure and parapet walls. Overall, the project will include a design and solid construction materials that will ensure that the project ages well for the duration of the building's lifetime. Density Bonus The California Density Bonus law allows developers proposing five or more residential units to seek increases in base density for providing on -site housing units in exchange for providing affordable units on site. To help make constructing on -site affordable units 9/25/2023 Planning Commission 2-2 SPR No. 2023-02 and DBA No. 2023-02 (322 N Harbor Blvd.) September 25, 2023 Page 3 feasible, the law allows developers to seek up to three incentives/concessions and an unlimited number of waivers that facilitate production of units, which are essentially variances from development standards that would help the project be built without significant burden and without detriment to public health. The first version of the Density Bonus Law was adopted in 1979 and has since been amended at various times. In early 2017, the law was amended to restrict the ability of local jurisdictions to require studies to "justify" the density bonus and requested incentives/waivers and places the onus on local jurisdictions to prove that the incentives/concessions or waivers are not financially warranted. Pursuant to the California Density Bonus law, a project's affordability level is determined by dividing the number of proposed affordable units by the allowable "base" density (i.e., 50 du/ac). Moreover, the State density bonus law states that units added by a density bonus are excluded from the calculations. As outlined by Table 2 below, the base density for the 0.34-acre site at 50 du/ac is 17 units. Of the total units in the development, two units are proposed to be affordable to very low-income. Therefore, the project would have an eleven - percent affordability rate. As such, State density bonus law allows the developer to request a maximum density bonus of 35-percent. Due to the project's eleven -percent affordability rate, the developer can seek two density bonus concessions and unlimited waivers that assist with production of the units onsite, pursuant to Section 65915 et al. of the California Government Code (Density Bonuses and Other Incentives). In addition, California Assembly Bill No. 2345, approved September 28, 2020, revised the State Density Bonus Law originally adopted in 1979 to provide additional benefits for projects that include qualifying affordable housing. Pursuant to Section 65915 et al. of the California Government Code, the developer is requesting a 35-percent density bonus. As such, the maximum unit yield for the 0.34-acre site using the most "intense" building type allowed in CDR and the State density bonus is twenty-three units, as outlined in Table 2. However, the applicant is proposing to develop twenty-two units on the site. Table 2: Density Bonus Calculation Affordable Unit —11% 2 units)* Density Bonus Calculation Units Allowed Base Density - Stacked Dwelling Building type 0.34 acres x 50 du/ac 17 Units** most "intense" type allowed in CDR 35-Percent State Density Bonus 17 units x 0.35 +6 Units** Total Units Allowed 23 Units Total Units Proposed 22 Units *Affordable unit percentage is calculated excluding units added by a density bonus. **AB 2501 states that any density calculations resulting units shall be rounded up to the next whole number. Applies to: Number of affordable units required to be eligible for the density bonus; Base density i.e. the number of affordable units in the base project); and Eligible bonus units. The purpose of the State's Density Bonus Law is to encourage the development and availability of affordable housing by requiring the inclusion of affordable housing units within new developments. Pursuant to California Government Code sections 65915 (d)(1) and 65915 (e)(1), a local jurisdiction is limited in its ability to deny requested concessions and 9/25/2023 Planning Commission 2-3 SPR No. 2023-02 and DBA No. 2023-02 (322 N Harbor Blvd.) September 25, 2023 Page 4 waivers and is preempted from denying the Density Bonus Agreement application. Although the City has analyzed the project and has identified several areas of concern, the conditions of approval proposed for the project are intended to address any of the project's potential impacts. Table 3 outlines the incentives/concessions and waivers requested by the applicant. Table 3: Requested Incentives/Concessions SP2 Standard Requirement Provided Open Space — Common Open Space - 15% of lot Common Open Space - 5% of lot Minimum Common (2,224 square feet) (800 square feet) Open Space (Stacked Dwelling SP-2, Table 3-9. Onsite Open Space Requires Concession (1 of 2), Cal. building type) Requirements Gov't Code Sec. 65915 d 1 2 B Building Frontage Requires building to provide a Proposed design does not provide a Type and Floor Frontage Type identified. frontage consistent with the SP2. Requires Concession (2 of 2), Cal. Height SP-2, Table 3-4. Frontage Floor Gov't Code Sec. 65915 (d)(1)(2)(B) Height Minimums and Districts • Lot width required for Stacked . Existing lot width is 100 feet Lot Size/Width Dwellings is between 125 feet and (Stacked Dwelling building type) 200 feet. SP2, Table 3-3. Building Type and Requires Waiver, Cal. Gov't Code Form Sec. 65915 (e)(1) • 800 square feet of open space • Minimum 2/3 of open space is provided that is open to sky, required to be open to the sky deficient 682 square feet; does not Onsite Open Space (1,482 square feet) meet definition of courtyard or (Stacked Dwelling Type) Designed as courtyard of forecourt. forecourt • Open space that is open to the sky SP-2, Table 3-9. Onsite Open Space is design as a deck Requirements Requires Waiver, Cal. Gov't Code Sec. 65915 e 1 Onsite Parking In addition, the site is parked in compliance with California Government Code 65915 (p)(2)(A) and provides twenty-two total surface parking spaces or one space per unit. Per the California Density Bonus Law, a jurisdiction cannot impose a vehicular parking ratio that exceeds 0.5 spaces per unit, inclusive of handicapped and guest parking, when the development includes a minimum of eleven -percent very low-income units, is located within one-half mile of a major transit stop, and when there is unobstructed access to the major transit stop from the development. At one space per unit, the proposed development exceeded the minimum required parking ratio by 0.5 space per unit. Analysis of the Issues Density Bonus Agreement 9/25/2023 Planning Commission 2-4 SPR No. 2023-02 and DBA No. 2023-02 (322 N Harbor Blvd.) September 25, 2023 Page 5 Pursuant to Section 41-1607 of the SAMC, an application for a density bonus agreement is required to be approved by the Planning Commission for any project containing "deviations" (incentives/concessions and/or waivers). The Planning Commission's review of the density bonus agreement is based on the following findings: The proposed development will materially assist in accomplishing the goal of providing affordable housing opportunities in economically balanced communities throughout the city. 2. The development will not be inconsistent with the purpose of the underlying zone or applicable designation in the general plan land use element. 3. The deviation is necessary to make it economically feasible for the applicant to utilize a density bonus authorized for the development pursuant to section 41- 1603. Table 4: Analysis of the Requested Incentives/Concessions (2) and Waivers (2) Standard Analysis Minimum Common Open Table 3-9 (Onsite Open Space Requirements) in the Harbor Mixed -Use Space Requirement Transit Corridor Plan (SP2) requires a minimum of 15% of the lot size to be provided as common open space or plaza space. As proposed, the project provides 5 percent common open space or 800 square feet in the form of a common open deck on the second floor. Strict adherence to this common open space requirement would result in a reduction in the number of units that can be provided in the overall project, thus reducing the applicant's ability to achieving the full 35-percent density bonus to which the applicant is entitled under State Housing Law and affecting the feasibility to construct the project. In order to provide the required common open space and maintain the current proposed unit count, the developer would be required to construct additional floor levels, which would exceed the maximum allowable height as part of the Harbor Mixed Use Transit Corridor Plan (SP-2), and would further increase development costs making the project economically infeasible. To help alleviate the common open space deficiency, the project proposes a 1,477-square-foot community room, a separate fitness room, and an average of 50 square feet of private open space per unit (1,100 square feet total), through use of private balconies/decks for each unit. 9/25/2023 Planning Commission 2-5 SPR No. 2023-02 and DBA No. 2023-02 (322 N Harbor Blvd.) September 25, 2023 Page 6 Building Frontage Type and Floor Height Table 3-4 (Frontage Floor Height Minimums and Districts) of the SP2 indicate that arcade, gallery, shop front, forecourt, stop, and front yard/porch are the six allowed frontage types. As proposed, the project does not identify a frontage type that is consistent with SP2. Maintaining the required frontage type and minimum floor heights would result in a complete site and architectural redesign, involving more of the site area dedicated to the frontages design. In order to maintain the current proposed unit count, the developer would be required to redesign the site and elevation design, further increasing development costs and potentially leading to a loss of residential units, and a loss of further open space. Additionally, adherence to the frontage and floor height minimum requirements would be economically infeasible, as it would require additional cost to provide the materials required for the allowed frontage types. Lot Size/Width (Stacked Table 3-3 (Building Type and Form) of the SP2 required Stacked Dwellings Dwelling building type) to have the minimum lot size dimensions of 130 feet deep and 125-200 feet wide. As proposed, the project is located in a lot with the lot size dimensions of 148.25 feet deep and 100 feet wide. The proposed development is located on an existing lot surrounded by existing commercial and residential development. Specifically, the project is abutting an apartment complex that was first constructed in 1986 to the west and commercial buildings that were constructed in 1962 to the north and south. In order to comply with lot width standards, the developer would be required to purchase a lot to the north or south and demolish the existing development on either site. This would result in increasing costs and would make the project infeasible. Moreover, the development site and adjacent properties all have smaller than average lot widths, compared lots along north Harbor Boulevard. These lots range in lot depth and width, but most exceed 200 feet in lot width. In comparison, the site would have a lot width and depth of 148.25 feet deep and 100 feet wide, with a deviation of 25 feet for the minimum required lot width. Although the site has a deviation of 25 feet in the lot width, the applicant's stacked dwelling building design still accomplishes the intention of the SP2 by providing a compatible design and balanced composition of massing on the project site, with appropriate interior floor area and individual unit sizes. Onsite Open Space Pursuant to the Open Space Standards in SP2, the total onsite open space (Stacked Dwelling open to the sky must be two-thirds and designed as a courtyard or forecourt. building type) Based on the lot size for the proposed project, the total onsite open space open to the sky should be 1,482 square feet and designed as a courtyard or forecourt. As proposed, the project will have an 800 square -foot deck. As proposed, the project provides 800 square feet of open space that is designed as a deck open to the sky. The deck will be furnished, landscaped, and connected to the interior 1,477-square-foot community room. The proposed configuration would provide a contiguous 2,277 square feet of open space. Strict adherence to the two-thirds requirement would lead to the elimination of two or more units, which would affect the feasibility to construct the project. In order to maintain the current proposed unit count, the developer would be required to construct additional floor levels or required to rovide underground parking, which would further increase development 9/25/2023 Planning Commission 2-6 SPR No. 2023-02 and DBA No. 2023-02 (322 N Harbor Blvd.) September 25, 2023 Page 7 costs and make the project financially infeasible. Moreover, due to the site's limited size, the project proposed podium level parking, and the residential units stacked above the podium parking. Creating a courtyard or forecourt, would result in the project reducing the number of units by two or more in order to adhere to the open space standards. When analyzed cumulatively, the requested concessions and waivers could be avoided if the project were designed on a different site or using a different site plan. If the project were designed on a larger site with a multi -level parking and/or subterranean parking structure, or if the applicant used different building materials to construct a taller project on a larger site, additional area on site would become available to provide the open space requirements and the allowed building frontage type. However, these changes would increase development costs, resulting in the housing project becoming financially infeasible due to the significantly increased financial implications of an alternative construction type compared to the relatively smaller scale of the project. In addition, these changes would reduce the number of units that could be constructed on the site and therefore eliminate the affordable housing units that would result from the project. In addition, the changes would increase development costs and reduce the financial feasibility of redeveloping the site, resulting in the affordable housing project becoming financially infeasible due to the significantly increased financial implications. Lastly, the proposed deviations are necessary to make the project economically feasible for the applicant to utilize a density bonus authorized for the development pursuant to Section 41- 1603 of the SAMC. Site Plan Review Pursuant to Chapter 3 (Land Use Plan and Development Standards) of the SP2, any structure that exceeds three (3) stories in height is subject to discretionary review and approval of a site plan review (SPR) by the Planning Commission, for compliance with the SP2. Planning staff has reviewed the project for compliance with the SP2 and all applicable development standards and City design guidelines. As proposed, the development would meet all required SP2 development standards and City design guidelines, with exception of the requested concessions and waivers identified as part of the density bonus agreement analysis (i.e., minimum common open space, building frontage and floor height, lot width, and onsite open space requirements). The proposed development will incorporate residential units that are in close proximity to the corridor, which will increase street presence and create new activity throughout the day. It would also add further visibility along the street, contributing to an improved sense of community and safety. As a result, the proposed project will bring a safer and more vibrant atmosphere for corridor users. Moreover, the proposed project will be compatible with adjacent development and achieve the design and development principles outlined in SP2. As previously mentioned, the project features a contemporary architectural style similar to many multiple -family or mixed -use residential communities under construction in the 9/25/2023 Planning Commission 2-7 SPR No. 2023-02 and DBA No. 2023-02 (322 N Harbor Blvd.) September 25, 2023 Page 8 Specific Plan area and the region. The overall design, massing, features, and materials of the new construction will be compatible with, but differentiated from the existing neighborhood. Furthermore, the City's Development Review Committee (DRC) has reviewed the project and finds that it is in compliance with the majority of development standards contained within SP2, with the exception of the noted request for concessions/incentives and waivers to allow deviation from the code requirements aforementioned. General Plan Consistency The proposed project is located in the Urban Neighborhood -Medium High (UN-50) land use designation of the General Plan, which allows for development of semi -urban villages that are well connected to schools, parks, and shopping centers. Additionally, projects in the UN- 50 are in areas that are accessible by multiple modes of transportation, have lively and pedestrian -friendly streetscapes and are designed to foster community interaction. The land use designation allows a mix of uses, including medium and medium -high density apartments, townhomes, garden- or motor -court homes, and neighborhood- serving commercial. Moreover, approval of the SPR will be consistent with the goals and policies of the General Plan. Specifically, goals 1, 3, and 4 of the Land Use Element. Goal 1 of the Land Use Element (LU) encourage responsible growth by providing a land use plan that improves the quality of life and respects the existing community. Policy 1.1 of the LU asks that new projects foster compatibility between land uses to enhance livability and promote healthy life styles. Policy 1.2 and 1.5 of the LU encourage innovative development policies to expand homeownership opportunities at all income levels and quality infill residential development that provide a diversity of housing type for all income levels and age groups. Policy 1.8 of the LU encourages development tradeoff to ensure that new development project provide a net community benefit. Goal 3 of the LU encourages the preservation and improvement of the character and integrity of the existing neighborhoods and districts. Policy 3.1 of the LU supports new development that provides a net community benefit and contributes to the neighborhood character and identity. Goal 4 supports a sustainable Santa Ana through improvements to the built environment. Policy 4.1 of the LU encourages the promotion of complete neighborhoods by encouraging a mix of complementary uses, community services, and people places within a walkable area. Lastly, Policy 4.6 supports diverse and innovative housing types that improve living conditions and promote a healthy environment. Approval of the requested entitlements would contribute towards the City's rental housing stock to serve the needs of diverse and underserved populations. Moreover, the construction of this project will contribute toward an economically balanced community by providing housing for different demographic and income levels in an area rich with employment opportunities, commercial development, and market -rate housing. Lastly, approval of the requested entitlements would promote residential development, 9/25/2023 Planning Commission 2-8 SPR No. 2023-02 and DBA No. 2023-02 (322 N Harbor Blvd.) September 25, 2023 Page 9 enhanced/healthy life styles, and would contribute to the net community benefit by improving the corridor along Harbor Boulevard. Affordable Housing Opportunity and Creation Ordinance (AHOCO) The proposed development is subject to the requirements of the City's Affordable Housing Opportunity and Creation Ordinance (AHOCO), which requires rental unit developments to provide a minimum number of affordable units, depending on the proposed affordability level (i.e., low-income, very low-income, extremely low-income, or a combination). In this case, the developer is proposing to provide very low-income units. Pursuant to the AHOCO, the applicant is required to provide ten percent (10%) very low-income onsite affordable units. Therefore, two very low-income units would be required to be provided onsite to be rented for occupancy, or held vacant and available for immediate occupancy, by very low-income tenants. The developer is proposing to satisfy the AHOCO by providing two onsite rental units for rent to very low-income tenants. These units will be dispersed throughout the community and will each contain one bedroom and will be approximately 633 square feet in size (gross area), with a 50-square-foot deck. The developer's Inclusionary Housing Plan has been reviewed and approved by the City's Housing Division, which determined the unit type to be restricted as affordable (i.e., one -bedroom) based on the breakdown of total unit types proposed (e.g., 18 one -bedroom units proposed). Public Notification and Community Outreach Project notifications were posted, published, and mailed in accordance with City and State regulations. Copies of the public notice, including a 1,000-foot notification radius map, and the site posting are provided in Exhibit 12. In addition, staff contacted the provided contacts for the Riverview West and Santa Anita Neighborhood Associatione to ensure they were aware of the project and public hearing. At the time this report was printed, no issues of concern were raised regarding the proposed development. ENVIRONMENTAL IMPACT Pursuant to the requirements of the California Environmental Quality Act (CEQA), an Environmental Impact Report (EIR) was prepared and certified in 2014 in orderto address the potential environmental impacts associated with the Harbor Mixed Use Corridor Specific Plan. A mitigation monitoring and reporting program (MMRP), findings of fact, and a statement of overriding consideration were adopted with the 2014 EIR. As proposed, the development is not anticipated to have additional environmental impacts not addressed in the 2014 EIR. Therefore, no additional environmental review will be required. Based on this analysis, a Notice of Exemption, Environmental Review No. 2022- 12 will be filed for this project. However, all applicable mitigation measures in the original 9/25/2023 Planning Commission 2-9 SPR No. 2023-02 and DBA No September 25, 2023 Page 10 2023-02 (322 N Harbor Blvd.) EIR and associated MMRP will be enforced. The 2014 Harbor Mixed Use Plan EIR and MMRP have been provided as Exhibit 11 for reference. EXHIBIT(S) 1. Resolution Approving SPR No. 2023-02 as conditioned 2. Resolution Approving DBA No. 2023-02 as conditioned 3. Vicinity Zoning and Aerial View 4. Site Photos 5. Site Plan 6. Unit Floor Plans 7. Building Elevations 8. Conceptual Rendering 9. Preliminary Landscape Plans 10. Draft Density Bonus Agreement 11. 2014 Harbor Mixed Use Plan EIR 12. Copy of Public Notice Submitted By: Fernanda Arias, Assistant Planner I Approved By: Minh Thai, Executive Director, Planning and Building Agency 9/25/2023 Planning Commission 2-10 RESOLUTION NO. 2023-XXX A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING SITE PLAN REVIEW NO. 2023-02 AS CONDITIONED FOR A NEW RENTAL RESIDENTIAL DEVELOPMENT WITH TWENTY TWO UNITS, EXCEEDING THREES STORIES IN HEIGHT FOR THE PROPERTY LOCATED AT 322 NORTH HARBOR BOULEVARD (APN: 198-051-17) BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. The Jager Company, Ltd. (Applicant), on behalf of P&P Bros Corp. (Property Owner), is requesting approval of Site Plan Review (SPR) No. 2023-02 and concurrent Density Bonus Agreement (DBA) No. 2023-02 to allow the construction of a rental residential development, consisting of twenty-two apartment units with two units proposed as affordable to very - low income households earning less than 50 percent of the area median income (AMI) for the property located at 322 N. Harbor Boulevard. B. The zoning designation for the subject property is Corridor (CDR) district in the Harbor Mixed Use Transit Corridor Plan (SP2). C. The Harbor Mixed Use Transit Corridor Specific Plan was adopted in 2014 to lay the foundation for a more livable and sustainable corridor by creating zoning to allow for new housing and mixed -use development opportunities, providing development flexibility to meet market demands, using a multimodal approach to circulation, and creating a stronger identity for the area. The regulating plan, which establishes land uses and development standards, allows a variety of housing and commercial projects, including affordable residential communities, live/work units, service and retail, and professional offices. D. Pursuant to Table 3-2 (Permitted Uses) and Section 7-1 of the Harbor Mixed Use Transit Corridor Plan, discretionary review and approval of a Site Plan Review (SPR) request is required by the Planning Commission for all development projects where the proposed structures are over three (3) stories in height. E. The proposed project includes the construction of a new four-story residential building with flats/apartments consisting of twenty-two apartment Resolution No. 2023-XXX 9/25/2023 Page 1 of 10 Planning Commission 2 —11 units, 3,377 square feet of open space, twenty-two parking spaces, and five bicycle spaces. F. The proposed residential building would exceed the three stories in height. As such, the development project is subject to discretionary review and approval of an SPR application by the Planning Commission. G. The Applicant's request has been thoroughly evaluated by the City's Development Review Committee (DRC) through Development Project No. 2022-03. Through this review, the DRC has considered the subject site, proposed development, and the Applicant's requests for the site plan review approval. H. On September 25, 2023, the Planning Commission of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral. The Planning Commission determines that based on the following review, the project has been determined to be in compliance with all applicable provisions and development standards outlines within the CDR district in the Harbor Mixed Use Transit Corridor Plan: 1. That the proposed development plan is consistent with and will further the objectives outlined in Chapter 1 (Guiding Principles) of the Harbor Mixed Use Transit Corridor Plan. The proposed development will incorporate residential units that are in close proximity to the corridor, which will increase street presence and create new activity throughout the day. It would also add further visibility along the street, contributing to an improved sense of community and safety. As a result, the proposed project will bring a safer and more vibrant atmosphere for corridor users. 2. That the proposed development plan is consistent with the development standards specified in Chapter 3 (Land Use Plan and Development Standards) of the Harbor Mixed Use Transit Corridor Plan. The Pursuant to Chapter 3 (Land Use Plan and Development Standards) of the SP2, any structure that exceeds three (3) stories in height is subject to discretionary review and approval of a site plan review (SPR) by the Planning Commission, for compliance with the SP2. Planning staff has reviewed the project for compliance with the SP2 and all applicable development standards and City design guidelines. As proposed, the development would meet all required SP2 development standards and City design guidelines, with 9/25/2023 Planning Commission 2 — 12 Resolution No. 2023-XXX Page 2 of 10 exception of the requested concessions and waivers identified as part of DBA No. 2023-02 application, which has been concurrently filed with the subject SPR application. The requested concessions include a reduced common open space and a building frontage type for the stacked dwelling building type. Additionally, DBA No. 2023-02 is requesting waivers for the project to have reduced onsite open space that is open to the sky, reduced lot width, and a deviation from the courtyard or forecourt open space design requirement. To address the open space requirements, the project proposes connecting an 800- square-foot deck to a 1,100-square-foot community room, creating a contiguous 1,900 square feet of open space. 3. That the proposed development plan is designed to be compatible with adjacent development in terms of similarity of scale, height, and site configuration and otherwise achieves the objectives and development principles specified in Chapter 3 (Land Use Plan and Development Standards) and Chapter 6 (Design Guidelines) of the Harbor Mixed Use Transit Corridor Plan. The proposed project aligns with the adjacent development, adhering to the design and development principles specified in the Harbor Mixed Use Transit Corridor. The project exceeds three stories in height, which is allowed in the Corridor (CRD) land use district subject to review and approval of the SPR. Additionally, the project is situated to the east of an existing multi -family residential complex of similar height and scale. Moreover, the project is designed to meet the stacked building type listed in Chapter 3. Lastly, per the DBA No. 2023-02 application, the proposed project seeks concessions/incentives enabling a 5 percent common open space provision and a building frontage type that deviates from the Harbor Mixed Use Transit Corridor plan requirements. Additionally, under DBA No. 2023-02, the project requests waivers for reduced lot width, reduced on -site open space that retains an open -sky characteristic, and a deviation from the courtyard or forecourt open space design prerequisite. 4. That the proposed land uses, site design, and operation considerations in the proposed development plan have been planned in a manner that will result in a compatible and harmonious operation as specified in Chapter 4 (Mobility Plan) of the Harbor Mixed Use Transit Corridor Plan. The Development Review Committee (DRC) assessed the proposed project under Development Review Project (DP No. 2022-03). Consequently, the project was tailored to include 9/25/2023 Planning Commission 2 — 13 Resolution No. 2023-XXX Page 3 of 10 bicycle parking, maintain compatibility with the adjacent multi- family neighborhood and commercial development, seamlessly integrate with the existing corridor operations, and allocate a twelve -foot dedication. This dedication serves the purpose of advancing SP2 objectives, aiming to enhance pedestrian and bicycle amenities and connections. Furthermore, the proposed project resides within a half -mile radius of a bus rapid transit stop. Section 2. In accordance with the California Environmental Quality Act (CEQA) and the CEQA Guidelines, an Environmental Impact Report (EIR) was prepared and certified in 2014 in order to address the potential environmental impacts associated with the Harbor Mixed Use Plan. A mitigation monitoring and reporting program (MMRP), findings of fact, and a statement of overriding consideration were adopted with the 2014 EIR. As proposed, the development is not anticipated to have additional environmental impacts not addressed in the 2014 EIR. Therefore, no additional environmental review will be required. Based on this analysis, a Notice of Exemption, Environmental Review No. 2022-12 will be filed for this project. However, all applicable mitigation measures in the original EIR and associated MMRP will be enforced. Section 3. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, referendum, and other proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. Section 4. The Planning Commission of the City of Santa Ana, after conducting the public hearing, hereby approves Site Plan Review No. 2023-02 as conditioned in Exhibit A attached hereto and incorporated as though fully set forth herein. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Planning Commission Action dated September 25, 2023, and exhibits 9/25/2023 Planning Commission 2 — 14 Resolution No. 2023-XXX Page 4 of 10 attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. ADOPTED this 25t" day of September 2023, by the following vote: AYES: Commissioners: NOES: Commissioners: ABSENT: Commissioners: ABSTENTIONS: Commissioners: Bao Pham Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney Jose Montoya Assistant City Attorney 9/25/2023 Planning Commission 2 — 15 Resolution No. 2023-XXX Page 5 of 10 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Nuvia Ocampo, Recording Secretary, do hereby attest to and certify the attached Resolution No. 2023-XXX to be the original resolution adopted by the Planning Commission of the City of Santa Ana on September 25, 2023. Date: Recording Secretary City of Santa Ana 9/25/2023 Planning Commission 2 — 16 Resolution No. 2023-XXX Page 6 of 10 EXHIBIT A Conditions for Approval for Site Plan Review No. 2023-02 Site Plan Review No. 2023-02 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The Applicant must comply with each and every condition listed below prior to exercising the rights conferred by the Density Bonus Agreement. The Applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation/termination of the Density Bonus Agreement. 1. All proposed site improvements must conform to the Development Project (DP) approval of DP No. 2022-03. 2. Any amendment to the DP No. 2022-03, including modifications to approved materials, finishes, architecture, site plan, landscaping, unit count, mix, and square footages must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or if the Development Project Review must be amended. 3. All mechanical equipment shall be screened from view from public and courtyard areas. 4. Prior to issuance of building permits, the Applicant shall submit a construction schedule and staging plan to the Planning Division for review and approval. The plan shall include construction hours, staging areas, parking and site security/screening during project construction. 5. Prior to issuance of building permits, the Applicant shall provide written notification to the residential community located to the west of the site. This notification shall include comprehensive information about the nature of the proposed activities, anticipated timelines, and contact information for inquiries. The notification shall be delivered via certified mail. Additionally, a designated representative shall be available to address any concerns or inquiries raised by the residential community during this notification period. 6. Prior to issuance of building permits, the Applicant shall submit to the Planning Division and have approved a Parking Management Plan (PMP). The PMP shall provide for measures to address any parking shortages that may result from the project, with terms including but not limited to: Resolution No. 2023-XXX 9/25/2023 Page 9 of 10 Planning Commission 2 — 17 a. Requiring onsite parking permits (such as stickers or hang -tags) for any parking in the onsite parking spaces for both residents and guests; b. Policies for maximum time vehicles maybe parked in the surface parking spaces, including any guest parking; and c. Policies for towing unauthorized vehicles; vehicles parked in unauthorized locations, such as fire lanes; vehicles parking in surface guest parking without a sticker, hang -tag, or other identifiers; and vehicles parked longer than any maximum guest parking timeframes allowed. 7. Two weeks prior to the commencement of construction, notification must be provided to property owners within 500 feet of the project site disclosing the construction schedule, including the various types of activities that would be occurring throughout the duration of the construction period. 8. Prior to installation of landscaping, the Applicant shall submit representative photos and specifications of all trees to be installed on the project site for review and approval by the Planning Division. Specifications shall include, at a minimum, the species, box size (24 inches minimum), brown trunk height (10-foot minimum), and name and location of the supplier. 9. After project occupancy, landscaping and hardscape materials must be maintained as shown on the approved landscape plans. 10. Prior to final occupancy, a Property Maintenance Agreement must be recorded against the property. The agreement will be subject to review and applicability by the Planning and Building Agency, the Community Development Agency, the Public Works Agency, and the City Attorney to ensure that the property and all improvements located thereupon are properly maintained, Applicant (and the owner of the property upon which the authorized use and/or authorized improvements are located if different from the Applicant) shall execute a maintenance agreement with the City of Santa Ana which shall be recorded against the property and which shall be in a form reasonably satisfactory to the City Attorney. The maintenance agreement shall contain covenants, conditions and restrictions relating to the following: a. Compliance with operational conditions applicable during any period(s) of construction or major repair (e.g., proper screening and securing of the construction site; implementation of proper erosion control, dust control and noise mitigation measure; adherence to approved project phasing etc.); 9/25/2023 Planning Commission 2 — 18 Resolution No. 2023-XXX Page 10 of 10 b. Compliance with ongoing operational conditions, requirements and restrictions, as applicable (including but not limited to hours of operation, security requirements, the proper storage and disposal of trash and debris, enforcement of the parking management plan, and/or restrictions on certain uses); c. Ongoing compliance with approved design and construction parameters, signage parameters and restrictions as well as landscape designs, as applicable; d. Ongoing maintenance, repair and upkeep of the property and all improvements located thereupon (including but not limited to controls on the proliferation of trash and debris about the property; the proper and timely removal of graffiti; the timely maintenance, repair and upkeep of damaged, vandalized and/or weathered buildings, structures and/or improvements; the timely maintenance, repair and upkeep of exterior paint, parking striping, lighting and irrigation fixtures, walls and fencing, publicly accessible bathrooms and bathroom fixtures, landscaping and related landscape improvements and the like, as applicable); e. If Applicant and the owner of the property are different (e.g., if the Applicant is a tenant or licensee of the property or any portion thereof), both the Applicant and the owner of the property shall be signatories to the maintenance agreement and both shall be jointly and severally liable for compliance with its terms; f. The maintenance agreement shall further provide that any party responsible for complying with its terms shall not assign its ownership interest in the property or any interest in any lease, sublease, license or sublicense, unless the prospective assignee agrees in writing to assume all of the duties and obligations and responsibilities set forth under the maintenance agreement; g. The maintenance agreement shall contain provisions relating to the enforcement of its conditions by the City and shall also contain provisions authorizing the City to recover costs and expenses which the City may incur arising out of any enforcement and/or remediation efforts which the City may undertake in order to cure any deficiency in maintenance, repair or upkeep or to enforce any restrictions or conditions upon the use of the property. The maintenance agreement shall further provide that any unreimbursed costs and/or expenses incurred by the City to cure a deficiency in maintenance or to enforce use restrictions shall become a 9/25/2023 Planning Commission 2 — 9 Resolution No. 2023-XXX Page 11 of 10 lien upon the property in an amount equivalent to the actual costs and/or expense incurred by the City; and h. The execution and recordation of the maintenance agreement shall be a condition precedent to the Certificate of occupancy. 9/25/2023 Planning Commission 2 — 20 Resolution No. 2023-XXX Page 12 of 10 RESOLUTION NO. 2023-XXX A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING DENSITY BONUS AGREEMENT NO. 2023-02 AS CONDITIONED FOR A NEW RENTAL RESIDENTIAL DEVELOPMENT WITH TWENTY TWO UNITS FOR THE PROPERTY LOCATED AT 322 NORTH HARBOR BOULEVARD (APN: 198-051-17) BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. The Jager Company, Ltd. (Applicant), on behalf of P&P Bros Corp. (Property Owner), is requesting approval of Density Bonus Agreement (DBA) No. 2023-02 and concurrent Site Plan Review (SPR) No. 2023-02 to allow the construction of a rental residential development, consisting of twenty-two apartment units with two units proposed as affordable to very low-income households earning less than 50 percent of the area median income (AMI) for the property located at 322 N. Harbor Boulevard. B. The Harbor Mixed Use Transit Corridor Specific Plan was adopted in 2014 to lay the foundation for a more livable and sustainable corridor by creating zoning to allow for new housing and mixed -use development opportunities, providing development flexibility to meet market demands, using a multimodal approach to circulation, and creating a stronger identity for the area. The regulating plan, which establishes land uses and development standards, allows a variety of housing and commercial projects, including affordable residential communities, live/work units, service and retail, and professional offices. C. The California Density Bonus law allows developers to seek increases in base density for providing on -site housing units in exchange for providing affordable units on site. To help make constructing on -site affordable units feasible, the law allows developers to seek incentives/concessions or waivers that would help the project be built without significant burden and without detriment to public health. D. The Applicant's request has been thoroughly evaluated by the City's Development Review Committee (DRC) through Development Project No. 2022-03. Through this review, the DRC has considered the subject site, proposed development, and the Applicant's requests for incentives/concessions and waivers pursuant to the State's Density Bonus Law. 9/25/2023 Planning Commission 2 — 21 Resolution No. 2023-XXX Page 1 of 12 E. Section 41-1607 of the Santa Ana Municipal Code (SAMC) requires an application for a density bonus agreement containing deviations (incentives/concessions and/or waivers) to be approved by the Planning Commission. F. On September 25, 2023, the Planning Commission of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral. G. The Planning Commission determines that the following findings, which must be established in order to grant this Density Bonus Agreement application pursuant to SAMC Section 41-1607, have been established for Density Bonus Agreement No. 2023-02 to allow construction of the proposed project: 1. That the proposed development will materially assist in accomplishing the goal of providing affordable housing opportunities in economically balanced communities throughout the city. The proposed development will provide twenty-two residential rental units, including two units for very low-income households, contributing toward the City's rental housing stock to serve the needs of diverse and underserved populations. The area in which the project is proposed, the Harbor Mixed Use Transit Corridor, currently contains a mix of uses, including single-family residential, medium and medium -high density apartments, townhomes, and neighborhood- serving commercial. The construction of this project will contribute toward an economically balanced community by providing housing for different demographic and income levels in an area rich with employment opportunities, commercial development, and market -rate housing. 2. That the development will not be inconsistent with the purpose of the underlying zone or applicable designation in the general plan land use element. The project site is in an area already identified in both the City's Zoning Code (the Harbor Mixed Use Transit Corridor) and General Plan (the Land Use and Housing elements) for new residential communities. Moreover, the City's General Plan land use designation for the project site is Urban Neighborhood - Medium High (UN-50), which allows for the development of semi -urban villages that are well connected to schools, parks, and shopping centers. These areas are accessible by multiple 9/25/2023 Planning Commission 2 — 22 Resolution No. 2023-XXX Page 2 of 12 modes of transportation, have lively and pedestrian -friendly streetscapes, and are designed to foster community interaction. This designation allows a mix of uses, including medium and medium -high density apartments, townhomes, garden- or motor -court homes, and neighborhood- serving commercial. Mixed -use projects are allowed in both horizontal configurations, with commercial and residential uses side -by - side, and vertical, with commercial uses on the ground floor and residential above. Lastly, the proposed density of 64.71 dwelling units per acre (du/ac) is allowed by the density bonus provisions in the California Density Bonus Law for a eleven - percent affordability rate for two very -low income units (35- percent State Density Bonus). 3. That the deviation is necessary to make it economically feasible for the Applicant to utilize a density bonus authorized for the development pursuant to section 41-1603. The proposed project requires two deviations through incentives/concessions: (1) minimum common open space and (2) building frontage type/floor height; as well as two deviations through a waiver; (1) lot size/width; and (2) onsite open space (i.e., open to the sky, open space design, and interior open space). The deviations are described as follows: Minimum Common Open Space Requirement Table 3-9 (Onsite Open Space Requirements) in the Harbor Mixed -Use Transit Corridor Plan (SP2) requires a minimum of 15 percent of the lot size to be provided as common open space or plaza space. As proposed, the project provides 5 percent common open space or 800 square feet in the form of a common open deck on the second floor. Strict adherence to this common open space requirement would result in a reduction in the number of units that can be provided in the overall project, thus not achieving the full 35-percent density bonus to which the Applicant is entitled and affecting the feasibility to construct the project. In order to provide the required common open space and maintain the current proposed unit count, the developer would be required to construct additional floor levels, which would exceed the maximum allowable height as part of the Harbor Mixed Use Transit Corridor Plan (SP-2), and would further increase development costs making the project economically infeasible. To help alleviate the common 9/25/2023 Planning Commission 2 — 23 Resolution No. 2023-XXX Page 3 of 12 open space deficiency, the project proposes a 1,477-square- foot community room, a separate fitness room, and an average of 50 square feet of private open space per unit (1,100 square feet total), through use of private balconies/decks for each unit. Building Frontage Type and Floor Height Requirement (Incentive/Concession) Table 3-4 (Frontage Floor Height Minimums and Districts) of the SP2 indicate that arcade, gallery, shop front, forecourt, stop, and front yard/porch are the six allowed frontage types. As proposed, the project does not identify a frontage type that is consistent with SP2. Maintaining the required frontage type and minimum floor heights would result in a complete site and architectural redesign, involving more of the site area dedicated to the frontages design. In order to maintain the current proposed unit count, the developer would be required to redesign the site and elevation design, further increasing development costs and potentially leading to a loss of residential units, and a loss of further open space. Additionally, adherence to the frontage and floor height minimum requirements would be economically infeasible, as it would require additional cost to provide the materials required for the allowed frontage types. Lot Size/Width (Stacked Dwelling building type) (Waiver) Table 3-3 (Building Type and Form) of the SP2 required Stacked Dwellings to have the minimum lot size dimensions of 130 feet deep and 125-200 feet wide. As proposed, the project is located in a lot with the lot size dimensions of 148.25 feet deep and 100 feet wide. The proposed development is located on an existing lot surrounded by existing commercial and residential development. Specifically, the project is abutting an apartment complex that was first constructed in 1986 to the west and commercial buildings that were constructed in 1962 to the north and south. In order to comply with lot width standards, the developer would be required to purchase a lot to the north or south and demolish the existing development on either site. This would result in increasing costs and would make the project infeasible. Moreover, the development site and adjacent properties all have smaller than average lot widths, compared lots along north Harbor Boulevard. These Resolution No. 2023-XXX 9/25/2023 Page 4 of 12 Planning Commission 2 — 24 lots range in lot depth and width, but most exceed 200 feet in lot width. In comparison, the site would have a lot width and depth of 148.25 feet deep and 100 feet wide, with a deviation of 25 feet for the minimum required lot width. Although the site has a deviation of 25 feet in the lot width, the Applicant's stacked dwelling building design still accomplishes the intention of the SP2 by providing a compatible design and balanced composition of massing on the project site, with appropriate interior floor area and individual unit sizes. Onsite Open Space (Stacked Dwelling building type) (Waiver) Pursuant to the Open Space Standards in SP2, the total onsite open space open to the sky must be two-thirds and designed as a courtyard or forecourt. Based on the lot size for the proposed project, the total onsite open space open to the sky should be 1,482 square feet and designed as a courtyard or forecourt. As proposed, the project will have an 800 square - foot deck. As proposed, the project provides 800 square feet of open space that is designed as a deck open to the sky. The deck will be furnished, landscaped, and connected to the interior 1,477-square-foot community room. The proposed configuration would provide a contiguous 2,277 square feet of open space. Strict adherence to the two-thirds requirement would lead to the elimination of two or more units, which would affect the feasibility to construct the project. In order to maintain the current proposed unit count, the developer would be required to construct additional floor levels or required to provide underground parking, which would further increase development costs and make the project financially infeasible. Moreover, due to the site's limited size, the project proposed podium level parking, and the residential units stacked above the podium parking. Creating a courtyard or forecourt, would result in the project reducing the number of units by two or more in order to adhere to the open space standards Section 2. In accordance with the California Environmental Quality Act (CEQA) and the CEQA Guidelines, an Environmental Impact Report (EIR) was prepared and certified in 2014 in order to address the potential environmental impacts associated with the Harbor Mixed Use Plan. A mitigation monitoring and reporting program (MMRP), findings of fact, and a statement of overriding consideration were adopted with the 2014 EIR. As proposed, the development is not anticipated to have additional environmental impacts not addressed in the 2014 EIR. Therefore, no additional environmental review will be required. Based on this analysis, a Notice of Exemption, Environmental Review 9/25/2023 Planning Commission 2-25 Resolution No. 2023-XXX Page 5 of 12 No. 2022-12 will be filed for this project. However, all applicable mitigation measures in the original EIR and associated MMRP will be enforced. Section 3. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, referendum, and other proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. Section 4. The Planning Commission of the City of Santa Ana, after conducting the public hearing, hereby approves Density Bonus Agreement No. 2023-02 as conditioned in Exhibit A attached hereto and incorporated as though fully set forth herein. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Planning Commission Action dated September 25, 2023, and exhibits attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. [Signatures on the following page] 9/25/2023 Planning Commission 2 — 26 Resolution No. 2023-XXX Page 6 of 12 ADOPTED this 25t" day of September 2023, by the following vote: AYES: Commissioners: NOES: Commissioners: ABSENT: Commissioners: ABSTENTIONS: Commissioners: Bao Pham Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney Y Jose Montoya Assistant City Attorney 9/25/2023 Planning Commission 2 — 27 Resolution No. 2023-XXX Page 7 of 12 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Nuvia Ocampo, Recording Secretary, do hereby attest to and certify the attached Resolution No. 2023-XXX to be the original resolution adopted by the Planning Commission of the City of Santa Ana on September 25, 2023. Date: Recording Secretary City of Santa Ana 9/25/2023 Planning Commission 2 — 28 Resolution No. 2023-XXX Page 8 of 12 EXHIBIT A Conditions for Approval for Density Bonus Agreement Application No. 2023-02 Density Bonus Agreement Application No. 2023-02 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The Applicant must comply with each and every condition listed below prior to exercising the rights conferred by the Density Bonus Agreement. The Applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation/termination of the Density Bonus Agreement. 1. All proposed site improvements must conform to the Development Project (DP) approval of DP No. 2022-03. 2. Any amendment to the DP No. 2022-03, including modifications to approved materials, finishes, architecture, site plan, landscaping, unit count, mix, and square footages must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or if the Development Project Review must be amended. 3. All mechanical equipment shall be screened from view from public and courtyard areas. 4. Prior to issuance of building permits, the Applicant shall submit a construction schedule and staging plan to the Planning Division for review and approval. The plan shall include construction hours, staging areas, parking and site security/screening during project construction. 5. Prior to issuance of building permits, the Applicant shall provide written notification to the residential community located to the west of the site. This notification shall include comprehensive information about the nature of the proposed activities, anticipated timelines, and contact information for inquiries. The notification shall be delivered via certified mail. Additionally, a designated representative shall be available to address any concerns or inquiries raised by the residential community during this notification period. 6. Prior to issuance of building permits, the Applicant shall submit to the Planning Division and have approved a Parking Management Plan (PMP). The PMP shall Resolution No. 2023-XXX 9/25/2023 Page 9 of 12 Planning Commission 2 — 29 provide for measures to address any parking shortages that may result from the project, with terms including but not limited to: a. Requiring onsite parking permits (such as stickers or hang -tags) for any parking in the onsite parking spaces for both residents and guests; b. Policies for maximum time vehicles maybe parked in the surface parking spaces, including any guest parking; and c. Policies for towing unauthorized vehicles; vehicles parked in unauthorized locations, such as fire lanes; vehicles parking in surface guest parking without a sticker, hang -tag, or other identifiers; and vehicles parked longer than any maximum guest parking timeframes allowed. 7. Two weeks prior to the commencement of construction, notification must be provided to property owners within 500 feet of the project site disclosing the construction schedule, including the various types of activities that would be occurring throughout the duration of the construction period. 8. Prior to installation of landscaping, the Applicant shall submit representative photos and specifications of all trees to be installed on the project site for review and approval by the Planning Division. Specifications shall include, at a minimum, the species, box size (24 inches minimum), brown trunk height (10-foot minimum), and name and location of the supplier. 9. After project occupancy, landscaping and hardscape materials must be maintained as shown on the approved landscape plans. 10. Prior to final occupancy, a Property Maintenance Agreement must be recorded against the property. The agreement will be subject to review and applicability by the Planning and Building Agency, the Community Development Agency, the Public Works Agency, and the City Attorney to ensure that the property and all improvements located thereupon are properly maintained, Applicant (and the owner of the property upon which the authorized use and/or authorized improvements are located if different from the Applicant) shall execute a maintenance agreement with the City of Santa Ana which shall be recorded against the property and which shall be in a form reasonably satisfactory to the City Attorney. The maintenance agreement shall contain covenants, conditions and restrictions relating to the following: a. Compliance with operational conditions applicable during any period(s) of construction or major repair (e.g., proper screening and securing of the construction site; implementation of proper erosion control, dust control Resolution No. 2023-XXX 9/25/2023 Page 10 of 12 Planning Commission 2 — 30 and noise mitigation measure; adherence to approved project phasing etc.); b. Compliance with ongoing operational conditions, requirements and restrictions, as applicable (including but not limited to hours of operation, security requirements, the proper storage and disposal of trash and debris, enforcement of the parking management plan, and/or restrictions on certain uses); c. Ongoing compliance with approved design and construction parameters, signage parameters and restrictions as well as landscape designs, as applicable; d. Ongoing maintenance, repair and upkeep of the property and all improvements located thereupon (including but not limited to controls on the proliferation of trash and debris about the property; the proper and timely removal of graffiti; the timely maintenance, repair and upkeep of damaged, vandalized and/or weathered buildings, structures and/or improvements; the timely maintenance, repair and upkeep of exterior paint, parking striping, lighting and irrigation fixtures, walls and fencing, publicly accessible bathrooms and bathroom fixtures, landscaping and related landscape improvements and the like, as applicable); e. If Applicant and the owner of the property are different (e.g., if the Applicant is a tenant or licensee of the property or any portion thereof), both the Applicant and the owner of the property shall be signatories to the maintenance agreement and both shall be jointly and severally liable for compliance with its terms; f. The maintenance agreement shall further provide that any party responsible for complying with its terms shall not assign its ownership interest in the property or any interest in any lease, sublease, license or sublicense, unless the prospective assignee agrees in writing to assume all of the duties and obligations and responsibilities set forth under the maintenance agreement; g. The maintenance agreement shall contain provisions relating to the enforcement of its conditions by the City and shall also contain provisions authorizing the City to recover costs and expenses which the City may incur arising out of any enforcement and/or remediation efforts which the City may undertake in order to cure any deficiency in maintenance, repair or upkeep or to enforce any restrictions or conditions upon the use of the property. The maintenance agreement shall further provide that any 9/25/2023 Planning Commission 2 — 31 Resolution No. 2023-XXX Page 11 of 12 unreimbursed costs and/or expenses incurred by the City to cure a deficiency in maintenance or to enforce use restrictions shall become a lien upon the property in an amount equivalent to the actual costs and/or expense incurred by the City; and h. The execution and recordation of the maintenance agreement shall be a condition precedent to the Certificate of occupancy. 9/25/2023 Planning Commission 2 — 32 Resolution No. 2023-XXX Page 12 of 12 8/18/23, 11:58 AM SPR No. 2023-02 and DBA No. 2023-02 - Residential Development 322 North Harbor Boulevard 0 D 5 3 R2 l R1 R4 r :�., i I 'SD86T___I Zoning Zoned — General Agri cu lru ral Com muniry Commercial Com muniry Commercial -Museum 1)Mrin ■ General Commercial ■ Planned Shopping Center ■ Arterial Commercial ■ Commercial Residential ■ South Main Street Commerci al District Govemment Center ■ Lighc Industrial ■ Heavy Industrial ■ Open Space land ■ Metm East Overlay Zone ■ Professional Single -Family Residence ■ Two -Family Residence ■ Multiple -Family Residence ■ Suhurhan Apartment ■ Residential -Estate ■ Specific Development No. 1 ■ Specific Development No. II ■ Specific Development No. 12 ■ Specific Development No 13 ■ Specific Development No. 15 ■ Specific Development No. 16 ■ Specific Development No. 17 ■ Specific Development No. 18 ■ Specific Development No_ 19 ■ Specific Development No. 2 ■ Specific Development No. 20 ■ Specific Development No. 21 ■ Specific Development No. 25 ■ Specific Development No_ 26 ■ Specific Development No. 27 ■ Specific Development No. 31 ■ Specific Development No. 32 ■ Specific Development No. 34 ■ Specific Development No_ 35 ■ Specific Development No. 36 ■ Specific Development No. 38 ■ Specific Development No. 39 ■ Specific Development No.4 ■ Specific Development No_ 40 ■ Specific Development No. 41 ■ Specific Development No. 42 ■ Specific Development No.43 ■ Specific Development No. 44 ■ Specific Development No_ 46 ■ Specific Development No.48 Specific Development A'o. 49 l P2 Exhibit 3 - Vicinity Zoning and Aerial View 9/25/2023 2-33 https://apps.spatiaRI glaGbUi &SI iDan/CurrentBuiId/HtmI/printpreview.htmI -..- R2 R2 I I R2 tAP R2 LI im R2 360 feet Nl 4 (c) 7n?4 Dinital Man Prnrillrtc All rinhtc racarvari SPR No. 2023-02 and DBA No. 2023-02 for Residential Development 322 North Harbor Boulevard Exhibit 4 — Site Photos 9/25/2023 Planning Commission 2 — 34 Exhibit 5 - Site Plan r 2'-0' DEDICATI( 64" 129-11" 8'-0" RIGHT-OF-WAY IRREVOCABLE e'-o^ weH OFFER TO BE DEDICATED TO DECORATIVE w THE CITY OF SANTA ANA FOR SPLIT- GMU. FUTURE STREET PURPOSES F PERIMETER TER 41 PROPER:" LINE ' 589°3"I'24"E 14H.25' N ON OPEN GROUN EL / O D DECK BELOW ❑ ❑ PA IT ^I FULLY ENCLOSED TRASH ROOM AT GROUND LEVEL SEE PLAN Z1 1 ' r---------------- ------ T r I I I I I I I O I O O co 27 ll1lll1M �- / R J I I I I I I I I I I I I I I I I I I 150'HOSE PULL / I �'I � � �' PROP05ED I I TRANSFORMER 1 1 LOCATION 2 I I e • I 12'-0' I EXISTING SI 1 I WALK TO BI REMOVED: M FUTURE STREET 'A WIDENING 322 N. HARBOR BLVD. - RESIDENTIAL 9/25/2023 Planning Commission quom' NOTE 1. ANY PROPOSED FENCING WITHIN THE FRONT YARD AREA (E.G., TUBULAR FENCING SHOWN ON LANDSCAPE PLANS) WOULD BE LIMITED TO THREE FEET IN HEIGHT. PURSUANT 20,_0„ TO SEC. 41-610 OF THE SAMC, FENCING IS PERMITTED TO EXCEED THREE FEET, UP TO EIGHT FEET IN HEIGHT, AFTER THE REQUIRED FRONT YARD AREA. 4'-0" RIGHT- OF -WAY DEDICATI 2. PROPOSED SIX-FOOT TALL PERIMETER WALL (SHOWN ON TO THE CITY OF SANTA ANA THE LANDSCAPE PLAN) BE OF A DECORATIVE SPLIT -FACE FOR STREET PURPOSES WITH ANTI- GRAFFITI COATING 3. PEDESTRIAN -SCALED LIGHTING SHOULD BE LOCATED EXISTING FIRE ALONG ALL WALKWAYS WITHIN THE DEVELOPMENT. HYDRANT TO BE WHERE APPROPRIATE, WALL -MOUNTED LIGHTING MAY BE '. RELOCATED INCORPORATED. THESE WALL -MOUNTED LIGHTS SHOULD BE ARCHITECTURALLY COMPATIBLE AND PEDESTRIAN SCALED (CHAPTER 7 OF THE CITY DESIGN GUIDELINES). m 4. LIGHTING LEVELS SHOULD BE SUFFICIENT TO CREATE A PERCEIVED SENSE OF SECURITY AND SAFETY, AND FOR SIDEWALK AND STREET ILLUMINATION (SEE CHAPTER 7 OF 'I THE CITY DESIGN GUIDELINES). 5. GRIND AND CAP OF 2"-3" OF THE EXISTING AC PAVEMENT o o o FROM THE GUTTER LIP EDGE ALONG THE MEDIAN TO THE M ro V GUTTER LIP EDGE AT THE PROPERTY, ALONG THE ENTIRE 15' VISIBILITY PROPERTY FRONTAGE. TRIANGLE 6. EXISTING SIDEWALK ALONG THE ENTIRE PROPERTY FRONTAGE SHALL BE REMOVED, AND RECONSTRUCTED WITH A NEW 12' FULL WIDTH SIDEWALK WITH TREE WELLS, ALONG THE PROPERTY FRONTAGE ON HARBOR LINE OF BUILDING b BOULEVARD EDGE BELOW 7. THIS SITE WILL BE DESIGNED AND CONSTRUCTED IN ACCORDANCE WITH THE CALIFORNIA REGIONAL WATER i,Z LINE OF PROPOSEU CURB QUALITY CONTROL BOARD SANTA ANA REGION ORDER BEFORE STREET WDD ENING NO. R8-2009-0030 DISCHARGE REQUIREMENTS (MS4 SEE CIVIL PLAN FOR MORE PERMIT) DETAIL PROPOSED NEW FIRE 8. PROJECT SHALL INSTALL OF TWO 24" BOX STREET TREES HYDRANT LoCAnON ON HARBOR BOULEVARD, INCLUDING DEEP ROOT PROPOSED MASTER wA IRRIGATION SYSTEMS, PER CITY STANDARDS. CONTACT i• vv BACK PLOW PREVEN THE TREE SECTION SUPERVISOR AT (714) 647-3337 FOR PROPOSED IRRIGATION M TREE SPECIES AND SIZE OF REQUIRED TREES BACK FLOW PREVENTER ELEVATOR 1 9. THE EXISTING SIDEWALK ALONG THE ENTIRE PROPERTY [ FRONTAGE SHALL BE REMOVED AND RECONSTRUCTED EXISTING LINE of CURB WITH A NEW 12' FULL WIDTH SIDEWALK WITH TREE TO BE REMOVED AND WELLS, ALONG THE PROPERTY FRONTAGE ON HARBOR RECONSTRUCTED BOULEVARD. " FUTURE OURB LINE AFTER h r STREET WIDENING PER CITY 10. TRASH ENCLOSURE AREA TO BE FULLY ROOFED OR TO 5TANDARD5 DRAIN INTO A WATER QUALITY INLET TO PREVENT Two 24" BOX STREET TREE4 DISCHARGE OF SPILLED CONTAMINANTS INTO THE STORM YV/ DEEP ROOT IRRIGATION DRAIN SYSTEM. J SYSTEMS 11. APPROPRIATE PRIVATE BACK FLOW PREVENTER REQUIRED Two 24" BOX STREET TREES FOR ALL FIRE SERVICE, DOMESTIC AND LANDSCAPE ON HARBOR BOULEVARD, WATER METER PER GRADING AND STREET IMPROVEMENT INcwDIN6 DEEP ROOT IRRIGATION SYSTEMS, PER PLANS (AS APPLICABLE) > CITY STANDARDS J LEGEND ...... 150'FIRE DEPT. 0 H05E PULL Ir I EXISTING RESCUE WINDOW FIRE LOCATIONS Q HYDRANT COLORED STAMPED PROPOSED z CONCRETE DRIVE LT I TRANSFORMER SITE PLAN AFTER DEDICATION N WITHEE MALCOLM ARCHITECTS, ILL zo 40 ry••�•m•,•••••®-••—•�, 2251 west 1901n3o-eel Tonan CA90 f. 310. 21 ]. 0425 16 c1645 2 — 36 RIMED M—h 06, 2023 y'y •� LEGEND RESIDENTIAL 6 5-O'MIN REr,RSET 1 TRASH /MECHANICAL o. r o 4 15' x 15'VI51BILITY DEDC VERTICAL CIRCULATION TRIANGLE 1 2 �:✓tea �I - �- CIRCULATION PARKING I I i I FUTURE PROPERTY ------- LINE AFTER - ACCESSIBLE PATH DEDICATION I I I I I .in I I I $ I I I 1 15 $ I EXISTING PROPERTY LINE BEFORE DEDICATION m ORGANIC • WASTE BINS J -� 15 S �r--1� 1 3 S ----------- — THERMAL --- — — 17 S STORAGE - C 1 1 4 S . eswss,-Dwax-le en 1 9 tl 18 S C 13 5 HC - \�9 HC 2 1 19 S C 12 a I :LOBBY n _ PROPOSED NEW FIRE 20 S HC HYDRANT LOCATION i C 11 6 EV--- ELEV. r-- 0 0 o D MACH. 21 S C 10 7 S I 23'-0" 23'-tl LL 22 S C g g S ELECT. F A Q cl AWOL x - LINE OF EXISTING GURB LINE BEFORE f FUTURE STREET SEFA INDIVIDUPURL DOMESTIC smEE, WIDENING AATER ETER5 FOfiAEVER 51DENTIAL PROP05ED icnnoN + - DWEL- UNIT ANq C'GMM N AREA TRANSFORMER FUELIC ETERS. LOCATION 322 N. HARBOR BLVD. - RESIDENTIAL GROUND LEVEL BUILDING PLAN N WITHEE MALCOLM ARCHITECTS, LLP 225, Weat,901M1streel Tone-CA90504 9/25/2023 2 — 37 a 6 ,6 32 jo .czonsaa26 2.1 RIMEDMarcM1 06, 2023 Planning Commission Exhibit 6 - Unit Floor Plans UNIT TYPE Al 1 BEDROOM/1 BATH GROSS UNIT SF = 633 S.F. NET UNIT SF = 581 S.F. DECK AREA = 50 S.F. 18 UNITS 322 N. HARBOR BLVD. - RESIDENTIAL 9/25/2023 Planning Commission UNIT TYPE B1 2 BEDROOM / 2 BATH GROSS UNIT SF = 1,027 S.F. NET UNfT SF = 959 S.F. DECK AREA = 50 S.F. 2 UNITS UNIT TYPE B2 2 BEDROOM / 2 BATH GROSS UNIT SF = 1,070 S.F. NET UNIT SF = 996 S.F. DECK AREA = 50 S.F. 2 UNITS UNIT PLANS WITHEE MALCOLM ARCHITECTS, LLP 2251 west 1901M1 3tree1 Torrance, CA 90s04 21 217, 8885 f. 310. 7. 0425 1-1645 2.5 2 - 3 Q RIMED M—h 06, 2023 Exhibit 7 - Building Elevations 322 N. HARBOR BLVD. RESIDENTIAL 9/25/2023 Planning Commission MATERIAL LEGEND • EXTERIOR CEMENTSTUCCO ❑ COLOR 1 SW7000 IBIS WHFE 0 EXTERIOR CEMEM STUCCO 2 ■ COLOR SW6258 TRICORN BLACK 03 EXTERIOR CEMENT STUCCO ■ COLOR 3 SW9173 SHIMAKE ® METAL CLADDING O SYNTHETIC EXTERIOR SIDING © DUAL GLAZED VINYL WINDOWS WHITE COLORED FRAME O WOOD FRAMED AWNING © METAL CANOPY O SCREED LINE O CMU WALL j7 ALUMINUM STOREFRONT DOOR/WINDOW © PAINTED METAL GUARD RAIL © PAINTED METAL DOOR ® METAL GRILLE ELEVATIONS WITHEE MALCOLM ARCHITECTS, LLP 2211 west 1.13tree1 Torrance. CA 90s04 21 f. 310. 21 ]. 0425 Poe. c1645 3.1 2 — 39 RIMED M—h 06, 2023 v L FOURTH LEVEL m� _THIRD LEVEL _ m SECOND LEVEL 322 N. HARBOR BLVD. - RESIDENTIAL 9/25/2023 Planning Commission �7 V I t�l � Y yI] r 4 MATERIAL LEGEND • EXTERIOR CEMEW STUCCO ❑ COLOR 1 SW7000 IBIS WHITE 0 EXTERIOR CEMEM STUCCO 2 ■ COLOR SW6258 TRICORN BLACK 03 EXTERIOR CEMENT SW9173 CO ■ COLOR 3 SW9173 SHIMAKE ® METAL CLADDING O SYNTHETIC EXTERIOR SIDING © DUAL GLAZED VINYL WINDOWS WHITE COLORED FRAME O WOOD FRAMED AWNING © METAL CANOPY O SCREED LINE O CMU WALL j7 ALUMINUM STOREFRONT DOOR/WINDOW © PAIRED METAL GUARD RAIL © PAIRED METAL DOOR ® METAL GRILLE ELEVATIONS WITHEE MALCOLM ARCHITECTS, LLP 2211 west 1.13tree1 Torrance. CA 90s04 221 ].1T 8885 f. 310. 0425 Poe. c1645 3.2 2 — 40 RIMED M—h 06, 2023 r , .�I 1 `11:ml7l -d ❑❑ .1� ❑❑❑ ❑3L1-zJ1NIA OR DD 1111R- p! -` ------ Exhibit 9 - Preliminary Landsca DESIGN APPROACH: LANDSCAPE DEISGN NOTES: PIAINTMATERBL NOT LITTLE MAY BE LNED, SUBJECT To THEAPPP.O BY THE CITY OF SANTAAILI ALL LANDSCAPE PIANSANOINSTALF1110N5 SHALLADI£RE TO THE CITY BE S5NTFANA TESIGN GIlOENES, CODES AND REGULATIONS. ALL IANITKAPEAREAS SHALL BE PERMANENTLY NuSITANED. IRRIGATION SYSTEM DESIGN STATEMENT: uRFACF IRRIGATION SYSTEM SHALL BE DESIGNEBFNDINSTALLETO IRRIGATE ALL PLANTING MLAS. THEIRRICATION CONIROLIFNIS) SHPLL BE EQUIPPED FROM THE MANUFACTURER WTH \'JEATHEWEVAPOTRANSPIRATIONt"3ENNNGCPAABWTIE5TOAUTOMATICALLYAOJU6TWATERING5CHEDLLE5PND PMOVVTE. -HE DESIGN OF THE IRRIGATION SYSTEM SHALL EMPHASIZE WATER CONSERVATION AND PROMISE EFFICIENT AND UNIFORMRLSTES LETION OF IRRIGATION WATER, DRIP AND/OR BITBBLE IRRIGATION, 0R OTHERLm BIAE. LOVYFRESSU0.E IAIC0.0NRRICMl1ON SYSTEM SXALL BEINSTAFIEDIN PWNTER PREAS TO PRONOE WATER DIRECTLY TO TXE ROOTZONEOFPLANB. THE AUTOMATIC IRNIGATION SYSTEM SHA F BE DESIGNEOIN ACCORDANCE WITH THE GTY RF SANTAANA WATER EFFICIENCY LANDSCAPEORDIS—CE ANT IRRIGATION STANDPADS. 9/25/2023 Planning Commission GATES TO BE EQUIPPED IMTH KNOX BOX SYSTEM PER FIRE DEPARTMENT STANDARDS. CONCEPT PLANT SCHEDULE s: SIRE `;zii'. ',%�%_ 1�' oTeRff Lagersv 'ntlicaxfaunei'Natchei lNalchez Crape MyNe �.T PERIMETER TREE Trislama laudna'Ekganf I Elegant Wale, Gum HEDGE SCREEN Padaoaoro rpas maphyllus'M.k1 I Maki PINRIPI ua Prunus carolinwo'Monus I Bdghl'N Tight Carolina Laurel Cheery ROOF DECK PLANTERS Abe bngaena Wadusa'I Madusa Mozambique Tree Aloe Kelanchae behamnsia I Felt Plant Sedum Buth, um'Blue Sp,,,') Blue Spruce -leaved Sronecrop Sedum x'Angelina /Angelina Sedum Sempervivum Wnrem I Hen.and-Chkks VINES VINES ON WIRE TRELLIS AT PERIMETER WALL Trachelaspemlum jaaminoidec I S., Jasmine Trellia ■ SITE DE Agav X'BIue GBl Glcw Agave Anigozandloc x'Bush Tan TangoI lush Tango Kangaroo Paw Faasuw glat c 'EBjah Blue'/ Elilah Blue fe.Cle Whknbelgia nger s I Deer Grass Ph—unx'Yellaw Wave' I Yellow Wave New Zealand Flax WwslAAglx f.Iicoca'Smokey' I Smokey Westmgia GROUNOGOVER Bacoharia pilulads'Sanl, And? Santa Are Coyate Brvsh Wesldngla fmlioSa'NFL25' 1 Mundi- Coat Rosemary, ® Car.. lluu—IS.nTORY Cerex beNarae I Sank Berbare Sedge Myopdmm P,Mfeli un'Vuhite' IVVhR Trailing Myopomm Sandi, semen I Blue ChalksOcks 0 I U U OlO N ONQ IS L N Q `� MIa�aNT .�mr UM 0 a ai.. C4 OVNO W �SO Nv 3�SO N Ofa m m a U U m 0 Q Y 0 � z e a o 4 0 � � O � m V N Z Wi O�f�i mDSm (K� mom dm LLd� Z 4 J d d Q IZ Z a J J D W U O U Dawn by won DBte� ,,.a. Revi510n5' w 21050 L1.0 RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council Free Recording pursuant to Government Code 27383 DENSITY BONUS HOUSING AGREEMENT (322 N. Harbor Boulevard, Santa Ana, California; APN: 198-051-17) This DENSITY BONUS HOUSING AGREEMENT ("Agreement"), made and entered into this day of , 2023 ("Effective Date"), by and between the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"), and P & P Bros Corp., a California Corporation ("Developer"). City and Developer are sometimes referred to collectively as the "Parties" and individually as a "Party." RECITALS A. Developer is the owner of certain property located within the City of Santa Ana, County of Orange, State of California, commonly known as 322 N. Harbor Boulevard, Santa Ana, California, 92703, and legally described as set forth in Exhibit A attached hereto and incorporated herein by this reference as if set forth in full ("Property"). B. Developer is proposing to construct a residential development consisting of no more than twenty-two (22) residential rental units on the Property, as more particularly set forth in Density Bonus Application No. 2022-3 and Development Site Plan Review No. 2022-2 ("Project"). Without the density bonus, Developer would only be permitted to building seventeen (17) units on the Property. C. Santa Ana Municipal Code sections 41-1600, et seq. ("City Density Bonus for Affordable Housing"), and California Government Code sections 65915, et seq. ("State Density Bonus Law"), set forth a process to provide increased residential densities and/or incentives, concessions, or waivers to property owners who guarantee that a portion of their residential development will be available to low income, very low income, or senior (also known as "qualified") households. These regulations are intended to materially assist the housing industry in providing adequate and affordable housing for all economic segments of the community and to provide a balance of housing opportunities for very low income, low income and senior households throughout the city. D. The project is proposing a total of twenty-two (22) residential units, including two (2) units for very -low income households. Pursuant to California Government Code sections 1 9/25/2023 Planning Commission 2 — 43 65915(p)(2)(A), the Project will provide twenty-two (22) total onsite parking spaces or 1 space per one -bedroom and two -bedroom units. No parking concession is requested or provided. E. For the purpose of implementing this State Density Bonus Law onsite parking standard incentive, Developer has agreed to restrict eleven percent (I I %) of the units, in the Project to very low income households, which will result in two (2) Affordable Units, as defined. F. The Project complies with the affordable housing requirements set forth in the State Density Bonus Law and City Density Bonus for Affordable Housing. For purposes of this Agreement, the Project shall be the "housing development" as defined in the State Density Bonus Law. G. In light of the purpose of the State Density Bonus Law and City Density Bonus for Affordable Housing, and the express provisions of Government Code Sections 65915 (d)(1)(2)(B), and 65915(e)(1), the City has determined to approve the application with two (2) concessions and two (2) waivers. H. This Agreement, and the exhibits attached hereto and incorporated herein by reference, are intended to set forth the terms and conditions for the implementation of the Project's requirement to provide affordable housing units in exchange for receiving the density bonus incentive set forth herein. NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein by this reference, and of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: DEFINITIONS AND EXHIBITS 1.1 Definitions. In addition to the terms that may be defined elsewhere in this Agreement, the following terms when used in this Agreement shall be defined as follows: 1.1.1 "Adjusted for family size appropriate to the unit" shall have the meaning set forth by Health and Safety Code Section 50052.5(h). 1.1.2 "Affordable Rent" means the maximum Monthly Rent that may be charged to and paid by an Eligible Household for the Affordable Units, as required by the terms of this Agreement, and which shall not exceed one -twelfth (1/12) of the product of thirty percent (30%) times fifty percent (50%) times the Median Income for Orange County, as defined in Section 1.1.16. The Affordable Rent shall be adjusted to reflect a reasonable utilities allowance for utilities paid by the household using the Santa Ana Housing Authority Multi -Family Housing Utility Allowance Schedule, and shall be updated no less than annually. 1.1.3 "Affordable Rent Schedule" means a rent schedule established as of the date of issuance of an occupancy permit (exclusive of tenant utility payments or security deposits) for the required number/percentage of the total number of units in the Project which are to be 2 9/25/2023 Planning Commission 2 — 44 rented or available for rent to Very Low Income Tenants. Said Affordable Rent Schedule shall be established at the time of the issuance of the occupancy permit ("Initial Rent Schedule") and shall be created in accordance with the Orange County, California Primary Metropolitan Statistical Area ("PMSA") as published by the California Department of Housing and Community Development ("HCD"), adjusted for family size, and shall be updated no less than annually. 1.1.4 "Affordable Units" means two (2) units, which shall be comprised of two (2) one -bedroom units for Very Low Income Tenants. Any change to the number or distribution of Affordable Units is subject to City Manager approval. 1.1.5 "Agreement" means this Density Bonus Housing Agreement. 1.1.6 "City" means the City of Santa Ana, California 1.1.7 "City Council" means the City Council of the City of Santa Ana. 1.1.8 "City Attorney" means the City Attorney for the City of Santa Ana. 1.1.9 "City Manager" means the City Manager for the City of Santa Ana. 1.1.10 "City's Planning Commission" means the Planning Commission for the City of Santa Ana. 1.1.11 "Density Bonus Housing Agreement Term" means the period during which this Agreement shall be in full force and effect, as provided for in Section 6.1 below. 1.1.12 "Developer" means P & P Bros Corp, a California Corporation, and its permitted successors and assigns to all or any part of the Property. "Developer" may also be referred to as "Owner" interchangeably throughout the Agreement. 1.1.13 "Effective Date" means the date the City Council of City approves this Agreement and from then on this Agreement shall be in full force and effect. 1.1.14 "Eligible Household" means a Household whose income does not exceed the qualifying limit for a "Very Low Income Tenant" as defined herein. 1.1.15 "Household" means all persons residing in a Unit. 1.1.16 "Median Income" means the Orange County, California area median income, adjusted for family size appropriate to the unit, pursuant to California Health and Safety Code § 50052.5(h), as periodically published by HCD. 1.1.17 "Monthly Rent" means the total of monthly payments for (a) use and occupancy of each Affordable Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Developer which are required of all tenants, other than security deposits, application fees or credit check fees, (c) a reasonable allowance for an adequate 9/25/2023 Planning Commission 2 — 45 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 or cable service, to the extent applicable and charged to a Household, 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 Developer. In the event that certain utility charges are paid by the landlord rather than the tenant, no utility allowance shall be deducted from the rent for that type of utility charge. 1.1.18 "Project" means that certain residential development as more particularly described in Recital B and Section 2 of this Agreement. 1.1.19 "Property" means that certain real property more particularly described in the legal description in Exhibit A and improvements thereon. 1.1.20 "State Density Bonus Law" means Government Code sections 65915, et seq., as they exist on the Effective Date. 1.1.21 "Unit" means a residential dwelling unit within the Project to be constructed by the Developer pursuant to this Agreement. 1.1.22 "Unrestricted Units" means the Units within the Project to be constructed by Developer to a Household without restriction. 1.1.23 "Very Low Income Tenant" means a Household whose income does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. 1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: 1.2.1 Exhibit A — Legal Description of the Property 1.2.2 Exhibit B — Tenant Verification 1.2.3 Exhibit C — Annual Tenant Recertification 1.2.4 Exhibit D — Annual Rental Housing Compliance Report 1.2.5 Exhibit E — Notice of Affordability Restrictions on Transfer of Property 2. DEVELOPMENT OF THE PROPERTY 2.1 Project. Developer shall develop, operate, and maintain, or cause the development operation and maintenance of, the Property as a twenty-two (22) Unit residential development, with two 2 Affordable Units for Very Low Income Tenants. 2 9/25/2023 Planning Commission 2 — 46 2.2 Density Bonus. The base density for the Property is seventeen (17) dwelling units. By agreeing to provide two (2) Affordable Units, Developer understands and agrees that the State Density Bonus Law would allow a maximum density bonus of thirty-five percent (35%), which would equate to six additional units. Pursuant to this Agreement, Developer proposes and agrees to a Project that includes only five (5) additional Units ("Density Bonus Units"). Accordingly, the Project shall have twenty-two 22) Units, including two 2 Affordable Units, to be rented, occupied, operated, and maintained pursuant to the terms and conditions of this Agreement. Developer shall not construct or develop, or otherwise claim a right to construct or develop, any additional Units on the Property. 2.3 Development Incentives and Waivers. Developer petitioned for concessions, incentives, and waivers, and has been granted the following, as part of the approval of Density Bonus Application (DBA) No. 2023-02 for the Project: 2.3.1 Concessions. In accordance with Government Code Section 65915 (d)(1)(2)(B), Developer is granted the following concessions: (a) Relief from the 15-percent minimum common open space requirements as set forth in Table 3-9 (Onsite Open Space Requirements) as part of the Harbor Mixed -Use Transit Corridor Specific Plan (SP-2). (b) Relief from the frontage design types within the Corridor land use district, as set forth in Table 3-4 (Frontage Floor Height Minimums and Districts) as part of the Harbor Mixed -Use Transit Corridor Specific Plan (SP-2). 2.3.2. Waivers. In accordance with Government Code Section 65915(e)(1), Developer is granted the following waivers: (a) A waiver of the minimum lot width requirement of between 125 feet and 200 feet for Stacked Dwellings, as set forth in Table 3-3 (Building Type and Form) as part of the Harbor Mixed -Use Transit Corridor Specific Plan (SP- 2), provided that the lot width is a minimum of 100 feet. (b) A waiver of the requirement for two-thirds of the common open space area to be open to the sky and placed at the rear or side yard, or in the front as a forecourt, as part of the Harbor Mixed -Use Transit Corridor Specific Plan (SP-2), provided that at least five -percent (5%) of the lot is open to the sky. 2.3.3. Parking Requirements. The Project's onsite parking shall comply with Government Code section 65915(p)(2)(A). No additional parking concession is requested or provided. The Project will provide twenty-two (22) total onsite parking spaces or one (1) space per one -bedroom and two -bedroom units. 2.4 No Further Concessions or Incentives. Developer acknowledges and agrees that the incentives, concessions, and waivers set forth in section 2.3 above fully satisfy any duty City may have under the Santa Ana Municipal Code, the Density Bonus Law, or any other law or 5 9/25/2023 Planning Commission 2 — 47 regulation to provide any development incentive or to waive any building, zoning, or other requirement in return for providing Affordable Units. By this Agreement, Developer releases any and all claims Developer may have against City in any way relating to or arising from City's obligation to waive requirements of or provide development incentives pursuant to any state, federal, or local law, rule, or regulation applicable to the Project. 2.5 Unrestricted Units. The Project, for purposes of this Agreement, may have no more than twenty (20) Unrestricted Units, which shall be comprised of sixteen (16) one -bedroom units and four (4) two -bedroom units. 2.6 Affordable Units. The Project, for purposes of this Agreement, shall have no less than two 2 Units, which shall be comprised of two (2) one -bedroom units designated as Affordable Units pursuant to the terms and conditions of this Agreement. The Affordable Units shall be consistent with all City approvals, comparable in bedroom distribution and amenities to the Unrestricted Units, and shall be located throughout the Project as required under Santa Ana Municipal Code section 41-1602(c)(5). 2.7 Minimum Development Standards for Affordable Units. The Affordable Units shall be constructed with the same exterior appearance and interior features, fixtures, and amenities, and shall use the same type and quality of materials as provided for any Unrestricted Units. 2.8 Permits and Processing Compliance with Laws. Developer, at its sole cost and expense, shall secure or cause to be secured any and all permits that may be required by City or any other federal, state, or local governmental entity having or claiming jurisdiction over the Property or Project. Upon securing any and all permits, Developer shall carry out and perform the development, operation, and maintenance of the Project in conformity with all applicable federal, state, and local laws and regulations, and all conditions of approval issued by the City Council and City's Planning Commission for the Project. Any changes to the Project shall be reviewed by the City to determine compliance with this Agreement. If any changes to the Project shall materially alter the ability of Developer to comply with any terms of this Agreement in City's sole determination, then City shall have the option to declare this Agreement null and void in its sole discretion. 2.9 Relocation Prior to Development of Project. If relocation is required prior to the completion of development of the Project, Developer shall have the sole and exclusive responsibility for providing relocation assistance and paying all relocation costs as may be required to comply with applicable federal and state laws and regulations. In addition to any other indemnity provided by Developer under this Agreement, Developer shall indemnify, defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent), and hold harmless City and all of its officials, officers, employees, representatives, volunteers and agents from any and all alleged or actual claims, causes of action, liabilities, and damages from any third party for relocation assistance, benefits and costs prior to the completion of the development of the Project. 0 9/25/2023 Planning Commission 2 — 48 2.10 Local Sourcing Plan. Developer agrees to make a good faith effort to encourage contractors and suppliers to hire and procure locally, to the extent that it is cost effective and does not delay the overall project development schedule. 2.11 Mechanic's Liens; Indemnification. Developer shall take all actions reasonably necessary to remove any future mechanic's liens or other similar liens (including design professional liens) against the Property or Project, or any part thereof, by reason of work, labor, services, or materials supplied or claimed to have been supplied to Developer or anyone holding the Property or Project, or any part thereof, through or under Developer. Prior to the recording of this Agreement (or memorandum thereof) pursuant to Section 4.1 below, Developer shall provide evidence from the Title Company of any new recordings against the Property or Project. City hereby reserves all rights to post notices of non -responsibility and any other notices as may be appropriate upon a filing of a mechanic's lien. In addition to any other indemnity provided by Developer under this Agreement, Developer shall indemnify, defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent), and hold harmless City and all of its officials, officers, employees, representatives, volunteers and agents from any and all alleged or actual claims, causes of action, liabilities, and damages from any third party by reason of a mechanic's lien or work, labor, services, or materials supplied or claimed to have been supplied to Developer or anyone holding the Property or Project, or any part thereof, through or under Developer. 3. AFFORDABILITY 3.1 Total Affordability Term. Each Affordable Unit shall be restricted to use and occupancy by an Eligible Household for a total period of no less than fifty-five (55) years ("Total Affordability Term"). The Total Affordability Term for an Affordable Unit shall commence on the date a certificate of occupancy is issued for the initial Affordable Unit. 3.2 Memorializing Commencement of Total Affordability. Developer shall keep detailed records of the commencement date of the Total Affordability Term for each Affordable Unit. City shall have the right to review and verify said records to ensure that the commencement date specified by Developer for an Affordable Unit coincides with the date that the initial Affordable Unit received all permits from City required for occupancy of the Unit. In the event that a conflict exists between the date specified by Developer for the commencement of the Total Affordability Term for an Affordable Unit and the date specified by City's issuance of all required permits for occupancy of the Unit, the date specified by City's issuance of all required permits for occupancy of the Unit shall control. 3.3 Levels of Affordability. 3.3.1 Affordable Rent for Very Low Income Tenants. Developer covenants that no less than twos Affordable Units in the Project shall at all times during the Total Affordability Term be rented to, or held vacant and available for immediate occupancy by Eligible Households, at an Affordable Rent. 7 9/25/2023 Planning Commission 2 — 49 4. OWNERSHIP AND OPERATION OF THE PROJECT BY DEVELOPER 4.1 Payment of Density Bonus Setup Fee. A Density Bonus Setup Fee in the amount of Four Thousand Six Hundred Seventy Five Dollars and Seventy Cents ($4,675.70) will be charged to the Developer and must be paid prior to execution of this Agreement. 4.2 Recording of Documents. No later than issuance of building permits for the Project, Developer and the City shall record or cause to be recorded in the Official Records for Orange County, California, an executed original of this Agreement. City shall cooperate with Developer in promptly executing in recordable form this Agreement. The date of recording of the Agreement shall be the Effective Date of the Agreement. Upon the date of recording, the terms and conditions of this Agreement shall be binding upon and run with the Property and the Project for the Total Affordability Term. It is the express intent and agreement between the Parties that this Agreement shall remain binding and enforceable against the Property, the Project, and the Units to ensure compliance with the State Density Bonus Law and City Density Bonus Law, and to ensure the continued supply of Affordable Units in the Project, except as expressly set forth in this Agreement. 4.3 Rental of Units. Upon the completion of construction of the Project and receipt by Developer of all required permits for the occupancy of the Units, Developer shall rent or cause to be rented each Affordable Unit for the Total Affordability Term for such Affordable Unit in accordance with the terms and conditions set forth in this Agreement, which provide among other terms and conditions for the rental of each Affordable Unit at an Affordable Rent to an Eligible Household for the Total Affordability Term. 4.4 Location of Affordable Units. During the Density Bonus Housing Agreement Term, the Affordable Units shall be dispersed throughout the Project in accordance with the terms and conditions set forth in this Agreement. The Affordable Units shall be permitted to float among all twenty-two (22) apartment units in the Project, provided that the Affordable Units shall be comparable in amenities to the Unrestricted Units and reasonably dispersed throughout the Project. The location of the first two Affordable Units to be occupied will be subject to the City's approved Inclusionary Housing Plan, and identified in the Annual Compliance Report submitted to the City pursuant to Section 4.11.2. 4.5 Occupancy Levels. Subject to state or federal laws and regulations, the number of persons permitted to occupy each Affordable Unit shall not exceed two persons per bedroom, plus one person. In the event that a household residing in an Affordable Unit exceeds the permitted number of persons, then that household shall be placed on a waiting list for the appropriate -sized unit and be eligible for transfer when an appropriate -sized unit becomes available. The household will be placed on the waiting list for up to one -hundred and eighty (180) days. If an appropriate - sized unit does not become available during the 180 days, the Owner will have grounds to terminate that household's lease. If the household refuses to transfer to an appropriate -sized unit then the Developer will also have grounds to terminate that household's lease. 4.5.1 Written Notification. If an Eligible Household, during the term of its tenancy, adds members that exceed the maximum occupancy allowed under this section, 9/25/2023 Planning Commission 2 — 50 Developer shall provide written notification informing the household that: it is over - occupancy; has been placed on a waiting list for up to one -hundred and eighty (180) days; the expiration date of the waiting list; and the terms for terminating the lease. A written status update will be provided to the household at one -hundred and twenty (120) days, ninety (90) days, sixty (60) days and thirty (30) days if applicable. 4.6 Use of the Property. All uses conducted on the Property, including, without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall conform to all applicable provisions of the Santa Ana Municipal Code and other applicable federal, state, and local laws, rules, and regulations. The Project shall at all times during the term of this Agreement be used as an apartment complex and none of the Affordable Units in the Project shall at any time be utilized on a transient basis, nor shall the Property or any portion thereof ever be used as a hotel, motel, dormitory, fraternity or sorority house, rooming house, hospital, nursing home, sanitarium or rest home, or be converted to condominium ownership. All of the community facilities and any social programs provided to the Project's residents shall be available on an equal, nondiscriminatory basis to residents of all Units at the Project. 4.7 Maintenance. Owner shall, at all times during the term of this Agreement, cause the Property and the Project to be maintained in a decent, safe and sanitary manner, regardless of cause of the disrepair. Owner shall be fully and solely responsible for costs of maintenance, repair, addition and improvements. City, and any of its employees, agents, contractors or designees shall have the right to enter upon the Property at reasonable times and in a reasonable manner to inspect the Project. 4.8 Marketing and Resident Selection Plan. Each Affordable Unit shall be leased to Eligible Households selected by the Developer who meet all of the requirements provided herein. Prior to Certificate of Occupancy, Developer shall prepare and obtain City's approval, which approval shall not be unreasonably withheld, of a marketing program and resident selection plan for the leasing of the Affordable Units at the Project ("Marketing Program"). The City shall approve or deny the Marketing Program within ten (10) business days of submittal by the Developer. In the event Marketing Program is neither approved nor denied within said time period, the Marketing Program shall automatically be considered approved. The leasing of the Affordable Units shall thereafter be marketed in accordance with the Marketing Program as the same may be amended from time to time with City's prior written approval, which approval shall not unreasonably be withheld. Upon request, Developer shall provide City with periodic reports with respect to the leasing of the Housing Units. 4.8.1 The Marketing Program shall include, but is not limited to, marketing and community outreach activities, proposed tenant selection criteria, occupancy standards, income requirements, timeline and details for outreach and marketing, data collection, record keeping and monitoring, procedures for complaints, and compliance assessment. Components of the resident selection plan shall include, but are not limited to, the application process, interview procedure, apartment offer and assignment, rejected applications, and wait list management. All requirements set forth herein shall be incorporated in the Marketing Program. 0 9/25/2023 2 — 51 Planning Commission 4.9 Rental Lease Agreement. Developer shall prepare and obtain City's approval, which approval shall not be unreasonably withheld, of a rental lease agreement ("Lease Agreement"). All Lease Agreements must 1) identify the names and ages of all members of the household who will occupy the Affordable Unit; and 2) state that the Household's right to occupy the Affordable Unit is subject to compliance with the Median Income requirements, adjusted for family size appropriate to the unit, as periodically published by HCD. All Lease Agreements must be consistent with the terms contained in this Density Bonus Agreement. 4.9.1 Prohibited Lease Terms. The Lease Agreement may not contain any of the following provisions: (a) Agreement to be Sued. Agreement by the tenant to be sued, to admit to guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Treatment of Property. Agreement by tenant that the owner may take, hold, or sell personal property of household members without notice to tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing unit after the tenant has moved out of the unit. The Developer may dispose of this personal property in accordance with State law; (c) Excusing Developer of Responsibility. Agreement by the tenant not to hold the Developer of the Developer's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Waiver of Notice. Agreement of the tenant that the Developer may institute a lawsuit without notice to the tenant; (e) Waiver of Legal Proceedings. Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Waiver of a Jury Trial. Agreement by the tenant to waive any rights to a trial by jury; (g) Waiver of Right to Appeal Court Decision. Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Tenant Chargeable with Cost of Legal Action Regardless of Outcome. Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. 4.10 Selection of Tenants. 4.10.1 Developer shall be responsible for the selection of tenants for the Affordable Units in compliance with lawful and reasonable criteria and the requirements of this Agreement. 4.10.2 Subject to applicable laws and regulations governing nondiscrimination and preferences in housing occupancy, the Developer shall give preference in leasing the Affordable Units to Eligible Households that live and/or work in the City of Santa Ana or who have an active 10 9/25/2023 Planning Commission 2 — 52 Housing Choice Voucher issued by the Housing Authority of the City of Santa Ana or any other Public Housing Authority. 4.10.3 All applicants will be screened and "lotterized." A waiting list will be created from a lottery generated from the initial pool of rental applications. The waiting list will track applicant name and contact information, lottery number (or designated number after the initial lottery), household income, household size, status of application, and any other information deemed necessary. The waiting list will be maintained as an electronic file and available for audit by the City of Santa Ana in accordance with resident selection procedures as set forth herein. 4.10.4 Prior to the rental or lease of an Affordable Unit to a tenant(s), Developer shall require the tenant(s) to execute a written lease and to complete a Tenant Income Verification Form (in substantially the form attached hereto as Exhibit B) certifying that the tenant(s) occupying the Affordable Unit is/are an Eligible Household and otherwise meet(s) the eligibility requirements established for the Affordable Unit. Developer shall verify the income of the tenant(s) as set forth herein. 4.11 Income Verification and Certification. Developer agrees to make a good faith effort to verify that the income and asset statement provided by an applicant in an income certification is accurate by taking, at a minimum, at least one of the following steps as a part of the verification process: (1) obtain three months consecutive pay stubs for the most recent pay period, (2) obtain an income tax return for the most recent tax year, (3) obtain an income verification form from the applicant's current employer, (4) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies, or (5) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. 4.11.1 Gross Household Income. Gross household income means all income from whatever source from all Adult Household members, which is anticipated to be received during the 12-month period following the date of the determination of Gross Household Income. The applicable sources of income are defined in California Code of Regulations Title 25 Housing and Community Development Section 6914. 4.11.2 Annual Recertification. Developer agrees to recertify household eligibility annually. Notification of Annual Tenant Recertification shall be sent to the household in substantially the form attached hereto as Exhibit C. An Annual Rental Housing Compliance Report ("Annual Compliance Report") shall be sent to the City in substantially the form attached hereto as Exhibit D. The Annual Compliance Report shall be due to the City within 30 days of the anniversary of the commencement of the Total Affordability Term, which is the date that each building receives all required occupancy permits from the City. 4.11.3 Continued Income Qualification and Vacated Affordable Units. If the annual recertification demonstrates that a previously eligible tenant's gross household 11 9/25/2023 Planning Commission 2 — 53 income exceeds the Median Income for the Affordable Unit, the pertinent actions from the following list must be taken: (a) The Developer may offer to rent the unit to the previously, but no longer, Eligible Household as an Unrestricted Unit without any limitations on rental rates. In that case, the Developer must then make available for rent to an Eligible Household another unit within the Project that meets the size and location requirements for Affordable Units under this Density Bonus Agreement. If there are no vacant units meeting those requirements, then the next available unit within the Project which does meet those requirements must be rented to an Eligible Household. (b) If the no longer Eligible Household either moves to another Unrestricted Unit within the Project or leaves the Project altogether, then the vacated Affordable Unit or, at Developer's election any other Unrestricted Unit within the Project which meets the size and location requirements for Affordable Units under this Density Bonus Agreement and has the same number of bedrooms as the vacated unit shall be rented as an Affordable Unit to an Eligible Household. 4.12 Monitoring and Recordkeeping. Throughout the Term of this Agreement, Developer shall annually complete and submit to City the Annual Compliance Report. Owner agrees to pay a reasonable fee, as set by City resolution, for the purpose of paying the actual costs associated with the City's obligation to monitor Owner's compliance with the affordability restrictions contained in this Agreement related to the Affordable Units, not to exceed monitoring costs for up to two (2) Affordable Units. Representatives of City shall be entitled to enter the Property if necessary after review of above documentation, upon at least forty-eight (48) hour notice, to monitor compliance with this Agreement, and shall be entitled to inspect the records of the Project relating to the Affordable Units and to conduct an independent audit or inspection of such records at a location within the City that is reasonably acceptable to the City. Developer agrees to cooperate with City in making the Property and the records of the Project relating to the Affordable Units available for such inspection or audit. Developer agrees to maintain each record of the Project for no less than five (5) years after creation of each such record. Subject to tenants' rights under State and Municipal law, the Developer shall allow the City to conduct annual inspections of each of the Affordable Units on the Property after the date of construction completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the City while conducting such inspections within ten (10) Business Days of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. 4.13 Notice of Affordability Restrictions on Transfer of Property. In the event the Developer wishes to sell or transfer the Project during the Total Affordability Term, the City and the Developer shall execute and deposit into escrow, or record against the Property, a Notice of Affordability Restrictions on Transfer of the Property as contained herein (Exhibit E). The sale or transfer of the Property, shall not be effective unless and until the City and the transferee execute the documents necessary to transfer the Density Bonus Agreement obligations from the Developer to the transferee. 12 9/25/2023 Planning Commission 2 — 54 4.14 Onsite Parking Management Plan. Developer shall provide onsite parking for residents and visitors of the Project and actively monitor the parking demand of the Project site. Developer shall continually monitor and take the following measures to manage the parking demand of the Project site to mitigate the use of offsite parking spaces on private or public properties and/or right-of-way. a. Requiring onsite parking permits (such as stickers or hang -tags) for any parking in the onsite parking spaces for both residents and guests; b. Policies for maximum time vehicles may be parked in the surface parking spaces, including any guest parking; and c. Policies for towing unauthorized vehicles, vehicles parked in unauthorized locations (such as fire lanes), vehicles parking in surface guest parking without a sticker, hang -tag, or other identifiers, and vehicles parked longer than any maximum guest parking timeframes allowed. Prior to issuance of the Certificate of Occupancy, Developer shall submit and obtain approval from the Planning and Building Agency ("PBA") a Parking Management Plan (the "PMP"), including those measures above. The approved PMP shall be adhered to and be enforced by the Project at all times. 4.15 Alternative Transportation and Energy Source, Resource Conservation, and LEED Certification. While not a condition of the project's Density Bonus, in recognition of the City's desire to optimize the energy efficiency of the project, Developer agrees to consult with the project design team, a CABEC certified 2019 Certified Energy Analyst, a LEED AP Homes (low-rise and mid -rise), LEED AP BD+C (high rise), National Green Building Standard (NGBS) Green Verifier, or GreenPoint Rater (one person may meet both of these latter qualifications) early in the project design process to evaluate a building energy model analysis and identify and consider energy efficiency or generation measures. Prior to the meeting, the energy analyst shall complete an initial energy model based on either current T24 standards or, if the project is eligible, the California Utility Allowance Calculator using best available information on the project. To the extent financially feasible for the project, Developer agrees to incorporate and optimize energy efficient building materials, methods, and amenities. 4.16 Emergency Evacuation Plan. Developer shall submit and obtain approval of an Emergency Evacuation Plan (the EEP) from City Police and Fire Protection agencies prior to issuance of a Certificate of Occupancy. Up-to-date 24-hour emergency contact information for the on -site personnel shall be provided to the City on an ongoing basis and the approved EEP shall be kept onsite and also be submitted to the following City Agencies: a. Police Department b. Fire Department c. Planning and Building Agency d. Community Development Agency 13 9/25/2023 Planning Commission 2 — 55 4.17 Crime Free Housing. Developer shall work with City staff to formalize a crime free housing policy, procedure, and design plan (the "CFH Plan"), which includes the following provisions: a. Requiring parking areas and common interior areas (lobbies, elevators, etc.) to contain security cameras; b. Requiring routine unit inspections; c. Ensuring lobby/other entrance doors are secured and accessed via remote controls, fobs, etc.; and d. Have policies in place to ensure that common use areas such as hallways and trash enclosures are maintained in good condition and repair (e.g., well -lit, kept clean, etc.) Developer shall submit and obtain approval from the PBA the CFH Plan meeting the requirements of this Subsection 4.18 prior to issuance of the Certificate of Occupancy. The approved CFH Plan shall be implemented and administered by Developer or a designated property manager. 4.18 [Intentionally Omitted] 5. [INTENTIONALLY RESERVED] 6. TERM OF THIS AGREEMENT 6.1 Term. The term of this Agreement ("Density Bonus Agreement Term") shall commence on the Effective Date and shall continue until the expiration of the Total Affordability Term. 7. DEFAULT AND TERMINATION; INDEMNIFICATION 7.1 Default. Failure or delay by any 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 specifying the default (or such other period specifically provided herein), constitutes a default under this Agreement; provided, however, 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 within an additional sixty (60) days following the conclusion of such thirty (30) day period (for a total of ninety (90) days). Except as required to protect against further damages, the injured Party may not institute proceedings against the Party in default until the time for cure has expired. 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 above, should the Developer elect to not proceed with the Project prior to commencement of construction, the Developer shall submit written notice of such termination ("Termination Letter") to the City, which Developer, for itself, its successors and assigns, states that it waives, forfeits, and relinquishes any and all benefits under this Agreement. Upon City's 14 9/25/2023 Planning Commission 2 — 56 receipt of the Termination Letter, the Parties agree to terminate this Agreement, except that the obligations of Section 4.1 and 7.3 shall survive termination. Developer shall, at its sole cost and expense, prepare and record a Termination of Agreement, which City shall review and approve, in the exercise of reasonable discretion. Such termination shall not be considered a default by any Party, but it shall result in a termination of the Agreement as provided for herein. 7.2 Rights and Remedies Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. Notwithstanding anything to the contrary contained in this Agreement, in no event shall either Party be liable for speculative, consequential, punitive, or other indirect damages arising from a breach of this Agreement, and each Party waives any right to collect speculative, consequential, punitive or other indirect damages against the other Party which arise from a breach of this Agreement. 7.3 Indemnification. In addition to any other indemnity specifically provided in this Agreement, Developer agrees to defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent) indemnify and hold harmless City and its respective officers, officials, agents, employees, representatives, and volunteers (collectively, "Indemnitees") from and against any loss, liability, claim, or judgment arising from any act or omission of Developer in connection with its obligations under this Agreement, except to the extent caused by the active negligence or willful misconduct of Indemnitees.. ASSIGNMENT; COVENANTS RUN WITH THE LAND 8.1 Assignment by Developer. 8.1.1 Prohibited Transfers or Assignments. Developer shall not sell, transfer, or assign the Property or Project in whole or in part, or transfer or assign Developer's rights and obligations in this Agreement, in whole or in part, unless the sale, transfer, or assignment complies with this Section 8 ("Permitted Transfer"). If Developer seeks a Permitted Transfer, Developer shall request City's written consent, and City shall respond within fourteen (14) days with a written approval or denial. The City's determination shall not be unreasonable or arbitrary. If City approves such a request, then prior to any such sale, transfer or assignment, Developer shall pay City's reasonable fees as compensation for the City's review of the request. City's failure to respond to the request within fourteen (14) days shall be deemed an approval. 8.1.2 Sale of Property. Owner agrees and declares that the Property and the Project shall be held, conveyed, mortgaged, encumbered, leased, rented, used, occupied, operated, sold, and approved subject to all obligations set forth or incorporated in this Agreement, all of which are for the purpose of enhancing and protecting the value and attractiveness of the Property and the Project. All of the obligations set forth or incorporated in this Agreement shall constitute covenants which run with the land and shall be binding on Owner and its successors and assigns, and all parties having or acquiring any right, title or interest in, or to any part of the Property or Project. Owner further understands and agrees that the Density Bonus permit approvals received 15 9/25/2023 Planning Commission 2 — 57 for this Project have been made on the condition that Owner and all subsequent owners, or other successors and assigns of the Property and/or Project lease and rent the Affordable Units in accordance with the terms and conditions stipulated in Sections 4, 5 and 6 of this Agreement for a term of 55 consecutive years commencing upon the date that the Project is first occupied. 8.1.3 Subsequent Assignment. As used in this Agreement, the term "Developer" shall be deemed to include any such transferee or assignee after the date such sale, transfer, or assignment occurs in compliance with this Agreement. 8.1.4 Unpermitted Assignments Void. Any sale, transfer, or assignment made in violation of this Agreement shall be null and void, and City shall have the right to pursue any right or remedy at law or in equity to enforce the provisions of the restriction against unpermitted sales, transfers, or assignments. 8.2 Covenants Run with the Land. The Property shall be held, sold, conveyed, hypothecated, encumbered, used, occupied and improved subject to the covenants, conditions, and restrictions set forth herein. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth in this Agreement shall run with the Property and shall be binding upon Developer and all persons having any right, title or interest in the Property, or any part thereof, their heirs, and successive owners and assigns, shall inure to the benefit of City and its successors and assigns, and may be enforced by City and its successors and assigns. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding for the benefit and in favor of City and its successors and assigns, and the parties hereto expressly agree that this Agreement and the covenants herein shall run in favor of City. City is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own right 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 Agreement and the covenants running with the land have been provided. Developer hereby declares its understanding and intent that the burden of the covenants set forth herein touch and concern the land and that the Developer's interest in the Property is rendered less valuable thereby. Developer hereby further declares its understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Property by the citizens of City and by furthering the health, safety, and welfare of the residents of City. 9. MISCELLANEOUS 9.1 Entire Agreement. This Agreement and all of its exhibits and attachments set forth and contain the entire understanding and agreement of the parties with respect to the Density Bonus Agreement, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 16 9/25/2023 Planning Commission 2 — 58 9.2 Amendment. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance approved by the City Council, or through the City Manager as detailed herein, and signed on behalf of each party. The City Manager shall have the authority to make approvals, issue interpretations, execute documents, waive provisions, and/or enter into amendments of this Agreement on behalf of City that further the intent of this Agreement. Any requested alteration, change or modification of the Agreement by Developer shall require the payment of fees or deposit by Developer to City, as applicable, for the City's review of the request. Each alteration, change, or modification to this Agreement shall be recorded against the Property in the Official Records of Orange County, California. 9.3 Notices. 9.3.1 Delivery. As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) two (2) days after deposit in the United States mail in a sealed envelope, first class mail and postage prepaid, and addressed to the recipient named below; or (iv) one (1) day after deposit with a known and reliable next -day document delivery service (such as Federal Express), charges prepaid and delivery scheduled next -day to the recipient named below, provided that the sending party receives a confirmation of delivery from the delivery service provider; or (v) the first business day following the date of transmittal of any facsimile, provided confirmation of successful transmittal is retained by the sending Party. All notices shall be addressed as follows: If to City: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Manager With a copy to: Office of the City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 If to Developer: P & P Bros Corp 18685 Main Street, Ste. 101-385 Huntington Beach, California 92648 Attn: Thao Lisa Vu 9.3.2 Change of Address. Either Party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or 17 9/25/2023 Planning Commission 2 — 59 representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change. 9.4 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 9.5 Interpretation and Governing Law. This Agreement and any dispute hereunder shall be governed and interpreted in accordance with the laws of the State of California without regard to conflict of law principles. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 9.6 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 9.7 Singular and Plural. As used herein, the singular of any word includes the plural, and vice versa, as context so dictates. Masculine, feminine, and neuter forms of any word include the other as context so dictates. 9.8 Joint and Several Obligations. If at any time during the term of this Agreement the Property and/or Project is owned, in whole or in part, by more than one Developer, all obligations of such Developer under this Agreement shall be joint and several, and the default of any such Developer shall be the default of all such Developers. 9.9 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 9.10 Computation of Days. Unless otherwise specified in this Agreement or any Exhibit attached hereto, use of the term "days" shall mean calendar days. For purposes of this Agreement and all Exhibits attached hereto, "business days" shall mean every day of the week except Saturdays, Sundays, official State holidays as recognized in Government Code Section 19853(a) or successor statute, and any days in which Santa Ana City Hall is closed for business. 9.11 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. 9.12 Non -Discrimination. In performing its obligations under this Agreement, Developer shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other related In 9/25/2023 Planning Commission 2 — 60 activities. Developer affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 9.13 Third Party Beneficiaries. No person or entity, other than City and Developer shall have any right of action based upon any provision of this Agreement. 9.14 Force Majeure. Neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the Party's control (including the Party's employment force), court actions (such as restraining orders or injunctions), or other causes beyond the Party's control, including delays by any governmental entity (although the City may not benefit from this provision for a delay that results from City's failure to perform its obligations under this Agreement), or an insurance company of either party. If any such events shall occur, the term of this Agreement and the time for performance by either Party of any of its obligations hereunder may be extended by the written agreement of the Parties for the period of time that such events prevented such performance. 9.15 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 9.16 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all permitted successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof, and (c) is binding upon each Party and each successor in interest approved pursuant to this Agreement during ownership of the Property or any portion thereof. 9.17 Counterparts. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. 9.18 Jurisdiction and Venue. Any action at law or in equity under this Agreement or brought by a Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, and the Parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. 9.19 Project as a Private Undertaking. It is specifically understood and agreed by and between the Parties hereto that the development of the Project is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this 19 9/25/2023 2 — 61 Planning Commission Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property and the Developer of such property. 9.20 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. City hereby authorizes City Manager to take such other actions and negotiate and execute any additional agreements as may be necessary or proper to fulfill the City's obligations under this Agreement. The City Manager may delegate her or his powers and duties under this Agreement to an authorized management level employee of the City. 9.21 Estoppel Certificate. Within ten (10) business days following a written request by any of the Parties, the other Party shall execute and deliver to the requesting Party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding Party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification, except as may be represented by the requesting Party, and that there are no uncured defaults in the performance of the requesting Party, except as may be represented by the requesting Party. 9.22 No Subordination. City's approval of the necessary land use entitlements that authorize Developer to develop, operate, and maintain the Project was based upon Developer's obligation to provide the Affordable Units pursuant to the State Density Bonus Law, City Density Bonus for Affordable Housing, and the terms and conditions of this Agreement. For the Term of the Density Bonus Housing Agreement, this Agreement shall have priority over any and all mortgages, deeds of trust, and other similar forms of secured financing recorded against the Property or any portion thereof. Developer expressly understands and acknowledges that state law requires preservation of affordability covenants in connection with the approval of this density bonus project. 9.23 Attorneys' Fees and Costs. If either Party to this Agreement commences an action against the other Party to this Agreement arising out of or in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs of investigation, and costs of suit from the losing Party. 9.24 Authority to Execute. The person or persons executing this Agreement on behalf of each Party warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants 20 9/25/2023 Planning Commission 2 — 62 and represents that he or she/they has/have the authority to bind the Party to the performance of its obligations hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Density Bonus Housing Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Jennifer L. Hall City Clerk APPROVED AS TO FORM Sonia R. Carvalho City Attorney By. Jose Montoya Assistant City Attorney City Manager RECOMMENDED FOR APPROVAL: Michael Garcia Executive Director Community Development Agency 21 CITY OF SANTA ANA Kristine Ridge P & P BROS CORP, A CALIFORNIA CORPORATION Thao Lisa Vu 9/25/2023 Planning Commission 2 — 63 Ind Ix"pre tints that Ile 01. she/1 hcy has/hnvc 'lie Inithority to hint! the I'Ilny !o the performance of its ��hligati+rns hrlrundrr. IN WITNESS WILE FOF, the Pa1'tieS hereto have Caused this Density 13onuS !lousing Agiv nlent to be executed on the date set forth at the beginning of this Agreement. ATTIrST: Jennifer L. Hall City Clerk APPROVED AS TO FORM Sonia R. Carvalho City Attorney By: Jose Montoya Assistant City Attorney City Manager RECOMMENDED FOR APPROVAL: Michael Garcia Executive Director Community Development Agency 21 CITY OF SANTA ANA Kristine Ridge P & P BROS CORP, A CALIFORNIA CORPORATION 41,xi-k� Th o Lisa Vu 2 — 64 Planning Commission EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA ANA, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THE NORTH 100 FEET OF THE SOUTH 300 FEET OF THE EAST HALF OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 10 WEST, SAN BERNARDINO BASE AND MERIDIAN. EXCEPTING THEREFROM THE WEST 132 FEET. ALSO EXCEPT THEREFROM ALL OIL, GAS, MINERALS AND HYDROCARBONS, BELOW A DEPTH OF 500 FEET, WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESERVED IN INSTRUMENTS OF RECORD. APN: 198-051-17 22 9/25/2023 Planning Commission 2 — 65 INCOME VERIFICATION FORM Inclusionary Unit Address: Head of Household (Print Name): Current Address (if different from above): Telephone Number: Home: Email address: Date of Birth: Work: Social Security # or TIN: Household Composition Cell: List All Household Members Living in the Inclusionary Unit Dependent Social Security # Name Sex Age (Y/N) or Taxpayer ID # List additional household members on a separate sheet of paper. Income Verification Form Santa Ana, California 9/25/2023 Planning Commission 2-66 Page 1 EXHIBIT "B" INCOME VERIFICATION FORM Monthly Gross Income * List All Sources of Income of All Household Members Living in the Inclusionary Unit Part 1: Earned Income Other Head of Household Household Members Total 1. Gross wages, before payroll deductions and $ $ $ including overtime pay, commissions, fees, tips and bonuses. 2. Net income from self employment, independent $ $ $ contractor work or a business. 3. Social security and any payments from annuities, $ $ $ insurance policies, pension/retirement funds, disability or death benefits received periodically. 4. Payment in lieu of earnings, such as $ $ $ unemployment, disability compensation, worker's compensation and severance pay. 5. Public assistance, welfare payments $ $ $ 6. Alimony, child support, other periodic allowances $ $ $ 7. Regular pay, special pay and allowances of $ $ $ members of the Armed Forces 8. Other $ $ $ Subtotal: Monthly Earned Income $ Total Monthly Earned Income x 12 = $ Total Annual Household Gross Earned Income Income Verification Form Page 2 Santa Ana, California 9/25/2023 Planning Commission 2 — 67 EXHIBIT "B" INCOME VERIFICATION FORM Monthly Gross Income * List All Sources of Income of All Household Members Living in the Inclusionary Unit Part 2: Investment Income Total Other Adult Household Head of Household Investment Household Members Income 1. Interest paid on Bank and Savings accounts $ $ $ 2. Dividends and other payments from stocks and $ $ $ bonds 3. Income from real property (i.e. rental property) $ $ $ 4. Other (describe) $ $ $ Subtotal: Monthly Investment Income: $ Total Monthly Investment Income x 12 = $ Total Annual Household Investment Income *Note: The following items are not considered income: casual or sporadic gifts; amounts specifically for or in reimbursement of medical expenses; lump sum payments such as inheritances, insurance payments, capital gains and settlement for personal or property losses; educational scholarships paid directly to the student or educational institution; special pay to a serviceman head of family away from home and under hostile fire; relocation payments under federal, state or local law; foster child care payments; value of coupon allotments for purpose of food under Food Stamp Act of 1964 which is in excess of amount actually charged the eligible household; payments received pursuant to participation in the following programs: VISTA, Service Learning Programs, and Special Volunteer Programs, SCORE, ACE, Retired Senior Volunteer Program, Foster Grandparent Program, Older American Community Services Program, and National Volunteer Program to Assist Small Business Experience. Income Verification Form Page 3 Santa Ana, California 9/25/2023 Planning Commission 2 — 68 EXHIBIT "B" INCOME VERIFICATION FORM Assets ** List the Current Value of All Assets of All Household Members Living in the Inclusionary Unit If the Asset generates income, that income must be specified In Part 2 above Head of Household Other Adult Household Members Total Value of Value Value Assets 1. Bank and Savings accounts $ $ $ 2. Stocks and bonds $ $ $ 3. Real property (i.e. rental property) $ $ $ 4. Other (describe) $ $ $ Total Asset Value $ **Note: Necessary items, such as furniture and automobiles, used for personal use are excluded from household assets. Collections of items for hobby, investment or business purposes must be included in household assets. If the total value of household assets exceeds $5,000, the calculation of the household's annual income shall include the greater of the actual amount of income, if any, derived from all of the household assets; or 10% of the total value of the assets. Income Verification Form Page 4 Santa Ana, California 9/25/2023 Planning Commission 2 — 69 EXHIBIT "B" INCOME VERIFICATION FORM If the total asset value exceeds $5,000, perform the calculations in the following table. If the total asset value is less than $5,000, the amount of investment income to be included in annual household income is $0. Calculation of Investment Income to be Included in Annual Household Income 1. Total Annual Household Investment Income $ 2. Total Asset Value $ x 10% $ The Greater of #1 or #2 = Investment Income to be Included in Annual Household Income $ Calculation of the Household's Total Annual Income Total Annual Household Gross Earned Income 1 $ Total Investment Income to be Included in Annual Household Income Total Household Income 1 $ Documentation Attach True Copies of the Relevant Documents Listed Below Paycheck stubs from three most recent pay periods Employment verification Three years Income tax returns for Title Holders Social security verification Alimony/child support verification Other (Describe) Income Verification Form Santa Ana, California 9/25/2023 Planning Commission 2-70 Bank/Savings account verification Self-employment verification Unemployment verification Welfare verification Disability income verification Page 5 AFFIDAVIT This Affidavit is made with the knowledge that it will be relied upon by and the City of Santa Ana to determine maximum income for eligibility to purchase the Inclusionary Unit listed above. (1/we) warrant that all information set forth in this document is true, correct and complete and based upon information (1/we) deem reliable and based upon such investigation as (1/we) deemed necessary. (lMe) acknowledge that (1/we) have been advised that the making of any misrepresentation or misstatement in this affidavit will constitute a material breach of (my/our) purchase agreement and will additionally enable the seller to terminate the purchase contract and sell the Inclusionary Unit to another party. (lMe) do hereby swear under penalty of perjury that the foregoing statements are true and correct and that this affidavit has been executed as of the date specified below by each adult member of the household which intends to occupy an Inclusionary Unit located at Signature Printed Name Executed at Signature Printed Name ,Santa Ana, California. Date Santa Ana, California Date Executed at , Santa Ana, California Affidavit Santa Ana, California 9/25/2023 Planning Commission 2-71 Page 6 ATTACHMENT C -- 2 ANNUAL TENANT INCOME VERIFICATION FORM Hummistravve vroceaures Manual Rental Residential Development April 27, 2023 9/25/2023 Planning Commission 2 — 72 TENANT INCOME VERIFICATION FORM 2021 AFFORDABLE HOUSING OPPORTUNITY AND CREATION ORDINANCE CITY OF SANTA ANA Table 1: Annual Household Gross Earned Income 1 List All Sources of Earned Income for all Adult Household Members Living in the Inclusionary Unit Other Adult Head of Household Household Members Total 1. Gross amount, before payroll deductions of $--$- $ wages, salaries, overtime pay, commissions, fees, tips and bonuses 2. Net income from business $ $ $ 3. Social security, annuities, insurance policies, $ $ $ pension/retirement funds, disability or death benefits received periodically 4. Payment in lieu of earnings, such as $ $ $ unemployment, disability compensation, worker's compensation and severance pay 5. Public assistance, welfare payments $ $ $ 6. Alimony, child support, other periodic $ $ $ allowances 7. Regular pay, special pay and allowances of $ $ $ members of the Armed Forces 8. Other $ $ $ Subtotal: Monthly Earned Income $ Total Monthly Earned Income x 12 = $ Total Annual Household Gross Earned Income 1 The following items are not considered income: casual or sporadic gifts; amounts specifically for or in reimbursement of medical expenses; lump sum payments such as inheritances, insurance payments, capital gains and settlement for personal or property losses; educational scholarships paid directly to the student or educational institution; special pay to a serviceman head of family away from home and under hostile fire; relocation payments under federal, state or local law; foster child care payments; value of coupon allotments for purpose of food under Food Stamp Act of 1964 which is in excess of amount actually charged the eligible household; payments received pursuant to participation in the following programs: VISTA, Service Learning Programs, and Special Volunteer Programs, SCORE, ACE, Retired Senior Volunteer Program, Foster Grandparent Program, Older American Community Services Program, and National Volunteer Program to Assist Small Business Experience. Administrative Procedures Manual Rental Residential Development Page 1 April 27, 2023 9/25/2023 Planning Commission 2 — 73 Table 2A., Household Assets 2 List the Value of All Assets Owned by all Adult Household Members Living in the Inclusionary Unit Other Adult Head of Household Return @ 10% Household Members Total of Total I. Bank & savings accounts $ $ $ $ 2. Stocks and bonds $ $ $ $ 3. Real property $ $ $ $ 4. Other $ $ $ $ Table 2B: Income Earned Annually from Household Assets List the Actual Annual Return on All Assets Owned by all Adult Household Members Living in the Inclusionary Unit Other Adult Head of Household Household Members Total 1. Bank and savings accounts $ $ $ 2. Stocks and bonds $ $ $ 3. Real property $ $ $ 4. Other $ $ $ The return on Household assets to be included in the Gross Income calculation is set at the greater of the two amounts shown on the following page: z Necessary items, such as furniture and automobiles, used for personal use are excluded from household assets. Collections of items for hobby, investment or business purposes must be included in household assets. Under California Government Code Section 6914, if the total value of household assets exceeds $5,000, the calculation of the household's annual income shall include the greater of the actual amount of income, if any, derived from all of the household assets; or 10% of the total value of the assets. Tenant Income Verification Form Page 2 Administrative Procedures Manual: Rental Housing Development April 27, 2023 9/25/2023 Planning Commission 2 — 74 Table 2C Annual Asset Income to be Added to Annual Household Gross Earned Income 10%Annual Return Actual Return Return to be Applied 1. Bank and savings accounts $ $ $ 2. Stocks and bonds $ $ $ 3. Real property $ $ $ 4. Other $ $ $ Total Annual Return to be Added to Annual Household Gross Earned Income $ The total Gross Household Income is equal to the sum of the following: Table 3: Calculation of the Household's Total Annual Gross Income Annual Household Gross Earned Income (Table 1) $ Annual Asset income (Table 2C) $ Total Annual Household Gross Income $ Income Documentation Attach True Copies of the Relevant. Documents Listed Below Paycheck stubs from two most recent pay periods Employment verification Income tax return Social security verification Alimony/child support verification Other (Describe) Bank/Savings account verification Self-employment verification Unemployment verification Welfare verification Disability income verification Tenant Income Verification Form Page 3 Administrative Procedures Manual: Rental Housing Development April 27, 2023 9/25/2023 Planning Commission 2 — 75 AFFIDAVIT This Affidavit is made with the knowledge that it will be relied upon by the City of Santa Ana, our landlord and the owner of our apartment building, to determine maximum income for eligibility. (1/we) warrant that all information set forth in this document is true, correct and complete and based upon information (1/we) deem reliable and based upon such investigation as (1/we) deemed necessary. (I/We) acknowledge that (1/we) have been advised that the making of any misrepresentation or misstatement in this affidavit will constitute a material breach of (my/our) rental agreement with the property owner to rent the unit and will additionally enable the property owner to initiate and pursue all applicable legal and equitable remedies with respect to the unit and to me/us, (I/We) do hereby swear under penalty of perjury that the foregoing statements are true and correct and that this affidavit has been executed as of the date specified below by each adult member of the household which intends to occupy an Inclusionary Unit located at ,Santa Ana, California. Signature Printed Name Executed at Date Santa Ana, California Signature Date Printed Name Executed at , Santa Ana, California Tenant Income Verification Form Administrative Procedures Manual: Rental Housing Development Page 1 April 27, 2023 9/25/2023 Planning Commission 2 — 76 ATTACHMENT C - 3 NO INCOME CERTIFICATION Aaministrative vrocedures Manual April 27, 2023 Rental Residential Development 9/25/2023 Planning Commission 2 — 77 NO INCOME CERTIFICATION FOR HOUSEHOLD MEMBER (NAME) certify that as of (DATE), I am not receiving any type of income including, but not limited to, wages and salaries, overtime pay, commissions, fees, tips, bonuses, or any other compensation for personal services, net income from the operation of a business or profession, dividends or interest, net income from any kind of real or personal property, Social Security, annuities, retirement funds, pensions, death or disability benefits, unemployment or disability compensation, workers compensation, severance pay, welfare or other public assistance, alimony, or child support. By this Certification, I declare under penalty of perjury that all of the foregoing information is true and correct. Misrepresentation or misstatement may be a violation of law that could result in a fine, criminal penalty or a default on the Inclusionary Housing Regulatory Agreement made in conjunction with the rental of this Inclusionary Unit. Signature Print Name Date Administrative Procedures Manual Rental Residential Development Page 1 April 27, 2023 9/25/2023 Planning Commission 2 — 78 Exhibit D ANNUAL RENTAL RESIDENTIAL DEVELOPMENT COMPLIANCE REPORT 2021 AFFORDABLE HOUSING OPPORTUNITY AND CREATION ORDINANCE CITY OF SANTA ANA Project Name: Project Address: Total Number of Units in the Project: Compliance Report Completed By: Phone Number: Date: Reporting Period: Number of Very Low Income Units: Unit # Household Name Household Size Household Income Number of Bedrooms Calculation of Net Monthly Rent Date First Occupied Date of Last Income Recertification Gross Rent Minus: Net Rent Other Utility Mandatory Allowance Payments AdministratGW2&202 4anual: Page 1 Rental ResicftfiftlffUbtmmission 2 — 79 8/22/2023 Administrat0iV2&2Ar /lanual: Paget Rental ResicM rfilff'G&nmission 2 - 80 8/22/2023 FXHTRIT F NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY NOTICE IS HEREBY GIVEN that the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, has entered into a Density Bonus Agreement with P & P Bros Corp., a California Corporation ("Property Owner"). The Density Bonus Agreement imposes income and affordability covenants on a twenty two (22) unit affordable housing development project ("Project") located at 322 N. Harbor Boulevard, Santa Ana, Orange County, Assessor's Parcel Number 198051-17, and further described in the legal description provided in Exhibit A to the Density Bonus Agreement. The Density Bonus Agreement was recorded as Document/Instrument Number [TO BE INSERTED], and shall remain in effect until fifty five (55) years from the date a certificate of occupancy is issued for all units in the Project. Among other things, the Density Bonus Agreement requires as follows: (a) two (2) one -bedroom units (the "Affordable Units") shall be restricted for occupancy to a household that qualifies as a "Very -Low Income Tenant," which is defined to mean a household whose income does not exceed fifty (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, and (b) the rent for the Affordable Unit shall not exceed one -twelfth (1/12) of the product of thirty percent (30%) times fifty percent (50%) times the Median Income for Orange County, as adjusted to reflect a reasonable utilities allowance. In the event the Property Owner wishes to sell or transfer the Project during the Affordability Period, the City and the Property Owner shall execute and deposit into escrow this Notice of Affordability Covenants on Transfer of the Property. The sale or transfer of the Property shall not be effective unless and until the City and transferee execute the documents necessary to transfer the Density Bonus Agreement obligations from the Property Owner to the transferee. This Notice of Affordability Covenants on Transfer of the Property in no way modifies the provisions of the Density Bonus Agreement. In the event of any conflict between this Notice of Affordability Covenants on Transfer of the Property and the Density Bonus Agreement, the terms of the Density Bonus Agreement shall prevail. IN WITNESS WHEREOF, the Parties hereto have duly executed this Notice of Affordability Restrictions on Transfer of Property as of the dates set forth below. [Signatures on Following Pages] 9/25/2023 2 _ 81 Planning Commission SIGNATURE PAGE TO NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY CITY: CITY OF SANTA ANA A California Charter City and Municipal Corporation Name: Kristine Ridge Its: City Manager Date: APPROVED AS TO LEGAL FORM: Uzz 9/25/2023 Planning Commission 2 — 82 SIGNATURE PAGE TO NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY PROPERTY OWNER: P & P Bros Corp A California Corporation Name: Thao Lisa Vu Its: Date: 9/25/2023 Planning Commission 2 — 83 Density Bonus Agreement Application No. 2023-02, "322 N. Harbor Blvd. Residential Development" 322 N. Harbor Boulevard The 2014 Harbor Mixed Use EIR and Technical Appendices are available online at: https://www.santa-ana.org/documents/harbor-mixed-use-final-impact-report-and-comments/ Or by visiting: Planning and Building Agency — Planning Division Public Counter 20 Civic Center Plaza Santa Ana, CA 92701 Exhibit 11— 2014 Harbor Mixed Use EIR 9/25/2023 Planning Commission 2 — 84