HomeMy WebLinkAbout FULL PACKET_2009-07-20ORDINANCE NO. NS-XXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA REPEALING AND READOPTING
CHAPTER 7 OF THE SANTA ANA MUNICIPAL CODE
UPDATING THE CITY'S FLOODPLAIN MANAGEMENT
REGULATIONS TO MEET CURRENT FEDERAL
REQUIREMENTS
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES HEREBY ORDAIN
AS FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. The City of Santa enforces regulations adopted by the Federal Emergency
Management Agency ("FEMA") in order that its residents may obtain
reasonable flood insurance and be eligible for federally insured loans.
B. FEMA has amended its regulations and requires the City to adopt those
amendments to comply with these new regulations in order for these
protections to continue for City property owners located in floodplains.
C. A small portion of the northwest area of the City and an area adjacent to
the Santiago Creek bed are subject to FEMA regulations as those areas
may experience shallow flooding.
Section 2. In accordance with the California Environmental Quality Act, the
proposed project is exempt from further review. Categorical Exemption 2009-81will be
filed for the project.
Pursuant to Title XIV, California Code of Regulations ("CCR") § 735.5(c)(1), the City
Council has determined that, after considering the record as a whole, there is no evidence
that the proposed project will have the potential for any adverse effect on wildlife resources
or the ecological habitat upon which wildlife resources depend. Therefore, pursuant to
Fish and Game Code § 711.2 and Title XIV, CCR § 735.5(a)(3), the payment of Fish and
Game Department filing fees is not required in conjunction with this project.
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Section 3. Chapter 7 of the Santa Ana Municipal Code, entitled "Floodplain
Management Regulations," together with all amendments thereto, and consisting of
Sections 7-1 through 7-56 inclusive, is hereby repealed.
Section 4. Santa Ana Municipal Code is hereby amended by adding a chapter,
numbered Chapter 7, to read in full as follows:
Chapter 7 -Floodplain Management Regulations
ARTICLE I. IN GENERAL
Sec.7-1. Authorization.
Pursuant to section 200 of its Charter, the City has the explicit authority to make and
enforce all laws and regulations in respect to, including all provisions of this chapter. In
addition, the Legislature of the State of California has in Government Code sections
65302, 65560 and 65800 conferred upon local governments the authority to adopt
regulations designed to promote the public health, safety, and general welfare of its
citizenry. Therefore, the City Council of the City of Santa Ana does hereby adopt the
following floodplain management regulations.
Sec. 7-2. Findings of Fact.
(a) The flood hazard areas of the City of Santa Ana are subject to periodic
inundation which results in loss of life and property, health and safety
hazards, disruption of commerce and governmental services, extraordinary
public expenditures for flood protection and relief, and impairment of the tax
base, all of which adversely affect the public health, safety, and general
welfare.
(b) These flood losses are caused by uses that are inadequately elevated,
floodproofed, or protected from flood damage. The cumulative effect of
obstructions in areas of special flood hazards which increase flood heights
and velocities also contributes to flood losses.
Sec. 7-3. Statement of Purpose.
It is the purpose of this chapter to promote the public health, safety, and general
welfare, and to minimize public and private losses due to flood conditions in specific
areas by legally enforceable regulations applied uniformly throughout the community to
all publicly and privately owned land within flood prone, mudslide, mudflow or flood
related erosion areas. These regulations are designed to:
(a) Protect human life and health;
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(b) Minimize expenditure of public money for costly flood control projects;
(c) Minimize the need for rescue and relief efforts associated with flooding and
generally undertaken at the expense of the general public;
(d) Minimize prolonged business interruptions;
(e) Minimize damage to public facilities and utilities such as water and gas mains;
electric, telephone and sewer lines; and streets and bridges located in areas
of special flood hazard;
(f) Help maintain a stable tax base by providing for the sound use and
development of areas of special flood hazard so as to minimize future
blighted areas caused by flood damage;
(g) Ensure that potential buyers are notified that property is in an area of special
flood hazard; and
(h) Ensure that those who occupy the areas of special flood hazard assume
responsibility for their actions.
Sec. 7-4. Methods of Reducing Flood Loss.
In order to accomplish its purposes, this ordinance includes regulations to:
(a) Restrict or prohibit uses which are dangerous to health, safety, and property due
to water or erosion hazards, or which result in damaging increases in erosion or
flood heights or velocities;
(b) Require that uses vulnerable to floods, including facilities which serve such uses,
be protected against flood damage at the time of initial construction;
(c) Control the alteration of natural floodplains, stream channels, and natural
protective barriers, which help accommodate or channel floodwaters;
(d) Control filling, grading, dredging, and other development which may increase
flood damage; and
(e) Prevent or regulate the construction of flood barriers which will unnaturally divert
floodwaters or which may increase flood hazards in other areas.
Sec.7-5. Definitions.
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Unless specifically defined below, words or phrases used in this chapter shall be
interpreted so as to give them the meaning they have in common usage and to give this
chapter its most reasonable application.
"'A' zone" -see "Special flood hazard area."
"Accessory structure" means a structure that is either:
(a) Solely for the parking of no more than 2 cars; or
(b) A small, low cost shed for limited storage, less than 150 square feet and $1,500
in value.
"Accessory use" means a use which is incidental and subordinate to the principal use of
the parcel of land on which it is located.
"Appeal" means a request for a review of the Floodplain Administrator's interpretation of
any provision of this chapter, where right to appeal is provided herein.
"Area of shallow flooding" means a designated AO or AH Zone on the Flood Insurance
Rate Map (FIRM). The base flood depths range from one to three feet; a clearly defined
channel does not exist; the path of flooding is unpredictable and indeterminate; and
velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.
"Area of special flood hazard" -See "Special flood hazard area."
"Base flood" means a flood which has a one percent chance of being equaled or
exceeded in any given year (also called the "100-year flood"). Base flood is the term
used throughout this chapter.
"Base flood elevation (BFE)" means the elevation shown on the Flood Insurance Rate
Map for Zones AE, AH, Al-30, VE and V1-V30 that indicates the water surface
elevation resulting from a flood that has a 1-percent or greater chance of being equaled
or exceeded in any given year.
"Basement" means any area of the building having its floor subgrade - i.e., below
ground level - on all sides.
"Building" -see "Structure".
"Development" means any man-made change to improved or unimproved real estate,
including but not limited to buildings or other structures, mining, dredging, filling,
grading, paving, excavation or drilling operations or storage of equipment or materials.
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"Encroachment" means the advance or infringement of uses, plant growth, fill,
excavation, buildings, permanent structures or development into a floodplain which may
impede or alter the flow capacity of a floodplain.
"Existing manufactured home park or subdivision" means a manufactured home park or
subdivision for which the construction of facilities for servicing the lots on which the
manufactured homes are to be affixed (including, at a minimum, the installation of
utilities, the construction of streets, and either final site grading or the pouring of
concrete pads) is completed before November 1, 1979.
"Expansion to an existing manufactured home park or subdivision" means the
preparation of additional sites by the construction of facilities for servicing the lots on
which the manufactured homes are to be affixed (including the installation of utilities, the
construction of streets, and either final site grading or the pouring of concrete pads).
"Flood, flooding, or flood water" means:
(a) A general and temporary condition of partial or complete inundation of normally
dry land areas from the overflow of inland or tidal waters; the unusual and rapid
accumulation or runoff of surface waters from any source; and/or mudslides (i.e.,
mudflows); and
(b) The condition resulting from flood-related erosion.
"Flood Boundary and Floodway Map (FBFM)" means the official map on which the
Federal Emergency Management Agency or Federal Insurance Administration has
delineated both the areas of special flood hazards and the floodway.
"Flood Insurance Rate Map (FIRM)" means the official map on which the Federal
Emergency Management Agency or Federal Insurance Administration has delineated
both the areas of special flood hazards and the risk premium zones applicable to the
community.
"Flood Insurance Study" means the official report provided by the Federal Insurance
Administration that includes flood profiles, the Flood Insurance Rate Map, the Flood
Boundary and Floodway Map, and the water surface elevation of the base flood.
"Floodplain or flood-prone area" means any land area susceptible to being inundated by
water from any source -see "Flooding."
"Floodplain Administrator" is defined in section 7-13.
"Floodplain management" means the operation of an overall program of corrective and
preventive measures for reducing flood damage and preserving and enhancing, where
possible, natural resources in the floodplain, including but not limited to emergency
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preparedness plans, flood control works, floodplain management regulations, and open
space plans.
"Floodplain management regulations" means this chapter and other zoning ordinances,
subdivision regulations, building codes, health regulations, special purpose ordinances
(such as grading and erosion control) and other application of police power which
control development in flood-prone areas. This term describes federal, state or local
regulations in any combination thereof which provide standards for preventing and
reducing flood loss and damage.
"Floodproofing" means any combination of structural and nonstructural additions,
changes, or adjustments to structures which reduce or eliminate flood damage to real
estate or improved real property, water and sanitary facilities, structures, and their
contents. For guidelines on dry and wet floodproofing, see FEMA Technical Bulletins
TB 1-93, TB 3-93, and TB 7-93, or successor bulletins.
"Floodway" means the channel of a river or other watercourse and the adjacent land
areas that must be reserved in order to discharge the base flood without cumulatively
increasing the water surface elevation more than one foot. Also referred to in this
chapter as "Regulatory Floodway."
"Floodway fringe" is that area of the floodplain on either side of the "Regulatory
Floodway" where encroachment may be permitted.
"Fraud and victimization" as related to Article IV of this chapter, means that the
floodplain variance granted must not cause fraud on or victimization of the public. In
examining this requirement, the City of Santa Ana will consider the fact that every newly
constructed building adds to government responsibilities and remains a part of the
community for fifty to one-hundred years. Buildings that are permitted to be constructed
below the base flood elevation are subject during all those years to increased risk of
damage from floods, while future owners of the property and the community as a whole
are subject to all the costs, inconvenience, danger, and suffering that those increased
flood damages bring. In addition, future owners may purchase the property, unaware
that it is subject to potential flood damage, and can be insured only at very high flood
insurance rates.
"Hardship" means the floodplain exceptional hardship that would result from a failure to
grant the requested floodplain variance. The request for floodplain variance be unusual,
and peculiar to the property involved. Mere economic or financial hardship alone is not
exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal
preferences, or the disapproval of one's neighbors likewise cannot, as a rule, qualify as
an exceptional hardship.
"Highest adjacent grade" means the highest natural elevation of the ground surface
prior to construction next to the proposed walls of a structure.
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"Historic structure" means any structure that is:
(a) Listed individually in the National Register of Historic Places (a listing maintained
by the Department of Interior) or preliminarily determined by the Secretary of the
Interior as meeting the requirements for individual listing on the National
Register;
(b) Certified or preliminarily determined by the Secretary of the Interior as
contributing to the historical significance of a registered historic district or a
district preliminarily determined by the Secretary to qualify as a registered historic
district;
(c) Individually listed on a state inventory of historic places in states with historic
preservation programs which have been approved by the Secretary of Interior; or
(d) Individually listed on the City's list of historic places, adopted pursuant to Chapter
30 of this Code.
"Levee" means aman-made structure, usually an earthen embankment, designed and
constructed in accordance with sound engineering practices to contain, control or divert
the flow of water so as to provide protection from temporary flooding.
"Levee system" means a flood protection system which consists of a levee, or levees,
and associated structures, such as closure and drainage devices, which are constructed
and operated in accord with sound engineering practices.
"Lowest floor" means the lowest floor of the lowest enclosed area, including basement
(see definition of "Basement").
(a) An unfinished or flood resistant enclosure below the lowest floor that is usable
solely for parking of vehicles, building access or storage in an area other than a
basement area, is not considered a building's lowest floor provided it conforms to
applicable non-elevation design requirements, including, but not limited to:
(1) The flood openings standard in section 7-17,
(2) The anchoring standards in section 7-17(a),
(3) The construction materials and methods standards in section 7-17(b), and
(4) The standards for utilities in section 7-18.
(b) For residential structures regulated by this chapter, all subgrade enclosed areas
are prohibited as they are considered to be basements (see definition of
"Basement"). This prohibition includes below-grade garages and storage areas.
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"Manufactured home" means a structure, transportable in one or more sections, which
is built on a permanent chassis and is designed for use with or without a permanent
foundation when attached to the required utilities. The term "manufactured home" does
not include a "recreational vehicle".
"Manufactured home park or subdivision" means a parcel (or contiguous parcels) of
land divided into two or more manufactured home lots for rent or sale.
"Market value" means the substantial damage/improvement procedures referenced in
section 7-14(b)(1).
"Mean sea level" means, for purposes of the National Flood Insurance Program, the
National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum
(NAND) of 1988, or other datum, to which base flood elevations shown on a
community's Flood Insurance Rate Map are referenced.
"New construction", for floodplain management purposes, means structures for which
the "start of construction" commenced on or after November 1, 1979, and includes any
subsequent improvements to such structures.
"New manufactured home park or subdivision" means a manufactured home park or
subdivision for which the construction of facilities for servicing the lots on which the
manufactured homes are to be affixed (including at a minimum, the installation of
utilities, the construction of streets, and either final site grading or the pouring of
concrete pads) is completed on or after November 1, 1979.
"Obstruction" includes, but is not limited to, any dam, wall, wharf, embankment, levee,
dike, pile, abutment, protection, excavation, channelization, bridge, conduit, culvert,
building, wire, fence, rock, gravel, refuse, fill, structure, vegetation or other material in,
along, across or projecting into any watercourse which may alter, impede, retard or
change the direction and/or velocity of the flow of water, or due to its location, its
propensity to snare or collect debris carried by the flow of water, or its likelihood of
being carried downstream.
"One-hundred-year flood" or "100-year flood" -see "Base flood."
"Program deficiency" means a defect in a community's floodplain management
regulations or administrative procedures that impairs effective implementation of those
floodplain management regulations.
"Public safety and nuisance" as related to Article IV of this chapter, means that the
granting of a floodplain variance must not result in anything which is injurious to safety
or health of an entire community or neighborhood, or any considerable number of
persons, or unlawfully obstructs the free passage or use, in the customary manner, of
any navigable lake, or river, bay, stream, canal, or basin.
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"Recreational vehicle" means a vehicle which is:
(a) Built on a single chassis;
(b) 400 square feet or less when measured at the largest horizontal projection;
(c) Designed to be self-propelled or permanently towable by a light-duty truck; and
(d) Designed primarily not for use as a permanent dwelling but as temporary living
quarters for recreational, camping, travel, or seasonal use.
"Regulatory floodway" means the channel of a river or other watercourse and the
adjacent land areas that must be reserved in order to discharge the base flood without
cumulatively increasing the water surface elevation more than one foot.
"Remedy a violation" means to bring the structure or other development into compliance
with State or local floodplain management regulations, or if this is not possible, to
reduce the impacts of its noncompliance. Ways that impacts may be reduced include
protecting the structure or other affected development from flood damages,
implementing the enforcement provisions of the chapter or otherwise deterring future
similar violations, or reducing State or Federal financial exposure with regard to the
structure or other development.
"Riverine" means relating to, formed by, or resembling a river (including but not limited
to tributaries, streams and brooks.
"Sheet flow area" -see "Area of shallow flooding."
"Special flood hazard area (SFHA)" means an area in the floodplain subject to a 1
percent or greater chance of flooding in any given year. It is shown on an FHBM or
FIRM as Zone A, AO, Al-A30, AE, A99, or, AH.
"Start of construction" includes substantial improvement and other proposed new
development and means the date the building permit was issued, provided the actual
start of construction, repair, reconstruction, rehabilitation, addition, placement, or other
improvement was within 180 days from the date of the permit. The actual start means
either the first placement of permanent construction of a structure on a site, such as the
pouring of slab or footings, the installation of piles, the construction of columns, or any
work beyond the stage of excavation; or the placement of a manufacture home on a
foundation. Permanent construction does not include land preparation, such as
clearing, grading, and filling; nor does it include the installation of streets and/or
walkways; nor does it include excavation for a basement, footings, piers, or foundations
or the erection of temporary forms; nor does it include the installation on the property of
accessory buildings, such as garages or sheds not occupied as dwelling units or not
part of the main structure. For a substantial improvement, the actual start of
construction means the first alteration of any wall, ceiling, floor, or other structural part
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of a building, whether or not that alteration affects the external dimensions of the
building.
"Structure" means a walled and roofed building that is principally above ground; this
includes a gas or liquid storage tank or a manufactured home.
"Substantial damage" means damage of any origin sustained by a structure whereby
the cost of restoring the structure to its before damaged condition would equal or
exceed 50 percent of the market value of the structure before the damage occurred.
"Substantial improvement" means any reconstruction, rehabilitation, addition, or other
improvement of a structure, the cost of which equals or exceeds 50 percent of the
market value of the structure before the "start of construction" of the improvement. This
term includes structures which have incurred "substantial damage", regardless of the
actual repair work performed. The term does not, however, include either:
(a) Any project for improvement of a structure to correct existing violations or state or
local health, sanitary, or safety code specifications which have been identified by
the local code enforcement official and which are the minimum necessary to
assure safe living conditions; or
(b) Any alteration of a "historic structure," provided that the alteration will not
preclude the structure's continued designation as a "historic structure."
"Floodplain variance" means a grant of relief from the requirements of this chapter
which permits construction in a manner that would otherwise be prohibited by this
chapter.
"Violation" means the failure of a structure or other development to be fully compliant
with this chapter. A structure or other development without the elevation certificate,
other certifications, or other evidence of compliance required in this chapter is
presumed to be in violation until such time as that documentation is provided.
"Water surface elevation" means the height, in relation to the National Geodetic Vertical
Datum (NGVD) of 1929, North American Vertical Datum (NAND) of 1988, or other
datum, of floods of various magnitudes and frequencies in the floodplains of coastal or
riverine areas.
"Watercourse" means a lake, river, creek, stream, wash, arroyo, channel or other
topographic feature on or over which waters flow at least periodically. Watercourse
includes specifically designated areas in which substantial flood damage may occur.
Sec. 7-6. Lands to which this chapter applies.
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11A-10
This chapter shall apply to all areas of special flood hazards within the jurisdiction of the
City.
Sec. 7-7. Basis for establishing the areas of special flood hazard.
The areas of special flood hazard identified by the Federal Emergency Management
Agency (FEMA) in the "Flood Insurance Study (FIS) for the County of Orange dated
February 18, 2004, with accompanying Flood Insurance Rate Maps (FIRM's) dated
February 18, 2004, and all subsequent amendments and/or revisions, are hereby
adopted by reference and declared to be a part of this chapter. This FIS and attendant
mapping is the minimum area of applicability of this chapter and may be supplemented
by studies for other areas which allow implementation of this chapter and which are
recommended to the City of Santa Ana by the Floodplain Administrator. The study and
FIRM's are on file at Building Safety Division of City of Santa Ana at 20 Civic Center
Plaza in the City.
Sec. 7-8. Compliance; violation.
No structure or land shall hereafter be constructed, located, extended, converted, or altered
without full compliance with the terms of this chapter and other applicable regulations.
Violation of the requirements (including violations of conditions and safeguards) shall
constitute a misdemeanor. Nothing herein shall prevent the City from taking such lawful
action as is necessary to prevent or remedy any violation.
Sec. 7-9. Abrogation and greater restrictions.
This chapter is not intended to repeal, abrogate, or impair any existing easements,
covenants, or deed restrictions. However, where this chapter and another chapter,
easement, covenant, or deed restriction conflict or overlap, whichever imposes the more
stringent restrictions shall prevail.
Sec. 7-10. Interpretation.
In the interpretation and application of this chapter, all provisions shall be:
(a) Considered as minimum requirements;
(b) Liberally construed in favor of the City; and
(c) Deemed neither to limit nor repeal any other powers granted under this Code,
state or federal law.
Sec. 7-11. Warning and Disclaimer of Liability.
The degree of flood protection required by this chapter is considered reasonable for
regulatory purposes and is based on scientific and engineering considerations. Larger
floods can and will occur on rare occasions. Flood heights may be increased by man-made
or natural causes. This chapter does not imply that land outside the areas of special flood
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hazards or uses permitted within such areas will be free from flooding or flood damages.
This chapter shall not create liability on the part of the City, any officer or employee thereof,
the State of California, or the Federal Emergency Management Agency, for any flood
damages that result from reliance on this chapter or any administrative decision lawfully
made hereunder.
Sec.7-12. Severability.
This chapter and the various parts thereof are hereby declared to be severable. Should
any section of this chapter be declared by the courts to be unconstitutional or invalid, such
decision shall not affect the validity of the chapter as a whole, or any portion thereof other
than the section so declared to be unconstitutional or invalid.
ARTICLE II: ADMINISTRATION
Sec. 7-13. Designation of the Floodplain Administrator.
Except as to Article V of this chapter, the Executive Director of Planning and Building
Agency shall be designated as the Floodplain Administrator and administer, implement,
and enforce this chapter by granting or denying development permits in accord with its
provisions. With respect to Article V of this chapter, the Executive Director of the Public
Works Agency shall be designated as the Floodplain Administrator and administer,
implement, and enforce said Article.
Sec. 7-14. Duties and Responsibilities of the Floodplain Administrator.
The duties and responsibilities of the Floodplain Administrator shall include, but not be
limited to the following:
(a) Permit review.
Review all development permits to determine:
(1) Permit requirements of this chapter have been satisfied, including
determination of substantial improvement and substantial damage of
existing structures;
(2) All other required state and federal permits have been obtained;
(3) The site is reasonably safe from flooding;
(4) The proposed development does not adversely affect the carrying
capacity of areas where base flood elevations have been determined but a
floodway has not been designated. This means that the cumulative effect
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of the proposed development when combined with all other existing and
anticipated development will not increase the water surface elevation of
the base flood more than 1 foot at any point within the City; and
(5) All Letters of Map Revision (LOMR's) for flood control projects are
approved prior to the issuance of building permits. Building Permits must
not be issued based on Conditional Letters of Map Revision (CLOMR's).
Approved CLOMR's allow construction of the proposed flood control
project and land preparation as specified in the "start of construction"
definition.
(b) Development of substantial improvement and substantial damage procedures.
(1) Using FEMA publication FEMA 213, "Answers to Questions About
Substantially Damaged Buildings" as amended from time to time, develop
detailed procedures for identifying and administering requirements for
substantial improvement and substantial damage, to include defining
"Market Value."
(2) Assure procedures are coordinated with other departments/divisions and
implemented by community staff.
(c) Review, use, and development of other base flood data.
When base flood elevation data has not been provided in accordance with
section 7-7, the Floodplain Administrator shall obtain, review, and reasonably
utilize any base flood elevation and floodway data available from a federal or
state agency, or other source, in order to administer Article III of this chapter.
NOTE: Abase flood elevation may be obtained using one of two methods from
the FEMA publication, FEMA 265, "Managing Floodplain Development in
Approximate Zone AAreas - A Guide for Obtaining and Developing Base (100-
year) Flood Elevations" dated July 1995, as amended from time to time.
(d) Notification of other agencies.
(1) Alteration or relocation of a watercourse:
a. Notify adjacent communities and the California Department of Water
Resources prior to alteration or relocation;
b. Submit evidence of such notification to the Federal Emergency
Management Agency; and
c. Assure that the flood carrying capacity within the altered or relocated
portion of said watercourse is maintained.
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(2) Base Flood Elevation changes due to physical alterations:
a. Within 6 months of information becoming available or project
completion, whichever comes first, the floodplain administrator shall
submit or assure that the permit applicant submits technical or
scientific data to FEMA for a Letter of Map Revision (LOMR).
b. All LOMR's for flood control projects are approved prior to the issuance
of building permits. Building Permits must not be issued based on
Conditional Letters of Map Revision (CLOMR's). Approved CLOMR's
allow construction of the proposed flood control project and land
preparation as specified in the "start of construction" definition.
Such submissions are necessary so that upon confirmation of those physical
changes affecting flooding conditions, risk premium rates and floodplain
management requirements are based on current data.
(3) Changes in corporate boundaries:
Notify FEMA in writing whenever the corporate boundaries have been
modified by annexation or other means and include a copy of a map of the
community clearly delineating the new corporate limits.
(e) Documentation of Floodplain Development.
Obtain and maintain for public inspection and make available as needed the
following:
(1) Certification required by sections 7-17(c)(1) and 7-20 (lowest floor elevations);
(2) Certification required by section 7-17(c)(2) (elevation or floodproofing of
nonresidential structures);
(3) Certification required by section 7-14(c)(3) (wet floodproofing standard);
(4) Certification of elevation required by section 7-19(a)(3) (subdivisions and
other proposed development standards);
(5) Certification required by section 7-22(b) (floodway encroachments); and
(6) Maintain a record of all floodplain variance actions, including justification for
their issuance, and report such floodplain variances issued in its biennial
report submitted to the Federal Emergency Management Agency.
(f) Map Determination.
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11A-14
Make interpretations where needed, as to the exact location of the boundaries of
the areas of special flood hazard, where there appears to be a conflict between a
mapped boundary and actual field conditions. Such determination may be
appealed by any interested person as provided in section 7-25.
(g) Remedial Action.
Take action to remedy violations of this chapter as specified in section 7-8.
(h) Biennial Report.
Complete and submit Biennial Report to FEMA.
(i) Planning.
Assure the City's General Plan is consistent with floodplain management
objectives herein.
Sec. 7-15. Development Permit.
A development permit shall be obtained before any construction or other development,
including manufactured homes, within any area of special flood hazard established in
section 7-7. Application for a development permit shall be made on forms furnished by
the City. The applicant shall provide the following minimum information:
(a) Plans in duplicate, drawn to scale, showing:
(1) Location, dimensions, and elevation of the area in question, existing or
proposed structures, storage of materials and equipment and their
location;
(2) Proposed locations of water supply, sanitary sewer, and other utilities;
(3) Grading information showing existing and proposed contours, any
proposed fill, and drainage facilities;
(4) Location of the regulatory floodway when applicable;
(5) Base flood elevation information as specified in sections 7-7 and 7-14(c);
(6) Proposed elevation in relation to mean sea level, of the lowest floor
(including basement) of all structures; and
(7) Proposed elevation in relation to mean sea level to which any
nonresidential structure will be floodproofed, as required in section 7-
17(c)(2) in FEMA Technical Bulletin TB 3-93, as it may be amended from
time to time.
(b) Certification from a registered civil engineer or architect that the nonresidential
floodproofed building meets the floodproofing criteria in section 7-17(c)(2).
Ordinance No. NS-XXX
11 A-15 Page 15 of 27
(c) For scrawl-space foundation, location and total net area of foundation openings
as required in section 7-17(c)(3) of this chapter and detailed in FEMA Technical
Bulletins 1-93 and 7-93 as it may be amended from time to time.
(d) Description of the extent to which any watercourse will be altered or relocated as
a result of proposed development.
(e) All appropriate certifications listed in section 7-14(e) of this chapter.
ARTICLE III. PROVISIONS FOR FLOOD HAZARD REDUCTION
Sec. 7-17. Standards of construction.
In all areas of special flood hazards the following standards are required:
(a) Anchoring.
All new construction and substantial improvements of structures, including
manufactured homes, shall be adequately anchored to prevent flotation,
collapse or lateral movement of the structure resulting from hydrodynamic
and hydrostatic loads, including the effects of buoyancy.
(b) Construction Materials and Methods.
All new construction and substantial improvements of structures, including
manufactured homes, shall be constructed:
(1) With flood resistant materials, and utility equipment resistant to flood damage
for areas below the base flood elevation;
(2) Using methods and practices that minimize flood damage;
(3) With electrical, heating, ventilation, plumbing and air conditioning equipment
and other service facilities that are designed and/or located so as to prevent
water from entering or accumulating within the components during conditions
of flooding; and
(4) Within Zones AH or AO, so that there are adequate drainage paths around
structures on slopes to guide flood waters around and away from proposed
structures.
(c) Elevation and floodproofing.
Ordinance No. NS-XXX
Page 16 of 27
11A-16
(1) Residential construction.
All new construction or substantial improvements of residential structures
shall have the lowest floor, including basement:
a. In AE, AH, Al-30 Zones, elevated to or above the base flood elevation.
b. In an AO zone, elevated above the highest adjacent grade to a height
equal to or exceeding the depth number specified in feet on the FIRM,
or elevated at least 2 feet above the highest adjacent grade if no depth
number is specified.
c. In an A zone, without BFE's specified on the FIRM [unnumbered A
zone], elevated to or above the base flood elevation; as determined
under section 7-14(c).
Upon the completion of the structure, the elevation of the lowest floor,
including basement, shall be certified by a registered civil engineer or
licensed land surveyor, and verified by the community building inspector to
be properly elevated. Such certification and verification shall be provided
to the Floodplain Administrator.
(2) Nonresidential construction.
All new construction or substantial improvements of nonresidential structures
shall either be elevated to conform with section 7-17(c)(1), or:
a. Be floodproofed, together with attendant utility and sanitary facilities,
below the elevation recommended under section 7-17)(c)(1), so that
the structure is watertight with walls substantially impermeable to the
passage of water;
b. Have structural components capable of resisting hydrostatic and
hydrodynamic loads and effects of buoyancy; and
c. Be certified by a registered civil engineer or architect that the
standards of section 7-17(c)(2)(a) & (b) are satisfied. Such certification
shall be provided to the Floodplain Administrator.
(3) Flood openings.
All new construction and substantial improvements of structures with fully
enclosed areas below the lowest floor (excluding basements) that are usable
solely for parking of vehicles, building access or storage, and which are
subject to flooding, shall be designed to automatically equalize hydrostatic
Ordinance No. NS-XXX
11 A-17 Page 17 of 27
flood forces on exterior walls by allowing for the entry and exit of floodwater.
Designs for meeting this requirement must meet the following minimum
criteria:
a. For non-engineered openings:
1. Have a minimum of two openings on different sides having a total
net area of not less than one square inch for every square foot of
enclosed area subject to flooding;
2. The bottom of all openings shall be no higher than one foot above
grade;
3. Openings may be equipped with screens, louvers, valves or other
coverings or devices provided that they permit the automatic entry
and exit of floodwater; and
4. Buildings with more than one enclosed area must have openings
on exterior walls for each area to allow flood water to directly enter;
or
b. Be certified by a registered civil engineer or architect.
(4) Manufactured homes.
a. See section 7-20.
(5) Garages and low cost accessory structures.
a. Attached garages.
1. A garage attached to a residential structure, constructed with the
garage floor slab below the BFE, must be designed to allow for the
automatic entry of flood waters. See section 7-17(c)(3). Areas of
the garage below the BFE must be constructed with flood resistant
materials (see section 7-17(b)).
2. A garage attached to a nonresidential structure must meet the
above requirements or be dry floodproofed. For guidance on below
grade parking areas, see FEMA Technical Bulletin TB-6, as it may
be amended from time to time.
b. Detached garages and accessory structures.
1. "Accessory structures" used solely for parking (2 car detached
garages or smaller) or limited storage (small, low-cost sheds), as
Ordinance No. NS-XXX
Page 18 of 27
11A-18
defined in section 7-5, may be constructed such that its floor is
below the base flood elevation (BFE), provided the structure is
designed and constructed in accordance with the following
requirements:
a. Use of the accessory structure must be limited to parking or
limited storage;
b. The portions of the accessory structure located below the
BFE must be built using flood-resistant materials;
c. The accessory structure must be adequately anchored to
prevent flotation, collapse and lateral movement;
a. Any mechanical and utility equipment in the accessory
structure must be elevated or floodproofed to or above the
BFE;
b. The accessory structure must comply with floodplain
encroachment provisions in section 7-22; and
c. The accessory structure must be designed to allow for the
automatic entry of flood waters in accordance with section 7-
17(c)(3).
2. Detached garages and accessory structures not meeting the above
standards must be constructed in accordance with all applicable
standards in section 7-17.
Sec. 7-18. Standards for utilities.
(a) All new and replacement water supply and sanitary sewage systems shall be
designed to minimize or eliminate:
(1) infiltration of flood waters into the systems; and
a. Discharge from the systems into flood waters.
(b) On-site waste disposal systems shall be located to avoid impairment to them, or
contamination from them during flooding.
Sec. 7-19. Standards for subdivisions and other proposed development.
(a) All new subdivisions proposals and other proposed development, including
proposals for manufactured home parks and subdivisions, greater than 50 lots or
5 acres, whichever is the lesser, shall:
Ordinance No. NS-XXX
11 A-19 Page 19 of 27
(1) Identify the Special Flood Hazard Areas (SFHA) and Base Flood Elevations
(BFE).
(2) Identify the elevations of lowest floors of all proposed structures and pads on
the final plans.
(3) If the site is filled above the base flood elevation, the following as-built
information for each structure shall be certified by a registered civil engineer
or licensed land surveyor and provided as part of an application for a Letter of
Map Revision based on Fill (LOMR-F) to the Floodplain Administrator:
a. Lowest floor elevation.
b. Pad elevation.
c. Lowest adjacent grade.
(b) All subdivision proposals and other proposed development shall be consistent
with the need to minimize flood damage.
(c) All subdivision proposals and other proposed development shall have public
utilities and facilities such as sewer, gas, electrical and water systems located
and constructed to minimize flood damage.
(d) All subdivisions and other proposed development shall provide adequate
drainage to reduce exposure to flood hazards.
Sec. 7-20. Standards for manufactured homes.
(a) All manufactured homes that are placed or substantially improved, on sites
located: (1) outside of a manufactured home park or subdivision; (2) in a new
manufactured home park or subdivision; (3) in an expansion to an existing
manufactured home park or subdivision; or (4) in an existing manufactured home
park or subdivision upon which a manufactured home has incurred "substantial
damage" as the result of a flood, shall:
(1) Within Zones Al-30, AH, and AE on the community's Flood Insurance Rate
Map, be elevated on a permanent foundation such that the lowest floor of the
manufactured home is elevated to or above the base flood elevation and be
securely fastened to an adequately anchored foundation system to resist
flotation, collapse, and lateral movement.
(b) All manufactured homes to be placed or substantially improved on sites in an
existing manufactured home park or subdivision within Zones Al-30, AH, and AE
on the community's Flood Insurance Rate Map that are not subject to the
Ordinance No. NS-XXX
Page 20 of 27
11 A-20
provisions of section 7-20(a) will be securely fastened to an adequately anchored
foundation system to resist flotation, collapse, and lateral movement, and be
elevated so that either the:
(1) Lowest floor of the manufactured home is at or above the base flood
elevation; or
(2) Manufactured home chassis is supported by reinforced piers or other
foundation elements of at least equivalent strength that are no less than 36
inches in height above grade.
Upon the completion of the structure, the elevation of the lowest floor including
basement shall be certified by a registered civil engineer or licensed land surveyor, and
verified by the community building inspector to be properly elevated. Such certification
and verification shall be provided to the Floodplain Administrator.
Sec. 7-21. Standards for recreational vehicles.
(a) All recreational vehicles placed in Zones Al-30, AH, and AE will either:
(1) Be on the site for fewer than 180 consecutive days; or
(2) Be fully licensed and ready for highway use. A recreational vehicle is ready
for highway use if it is on its wheels or jacking system, is attached to the site
only by quick disconnect type utilities and security devices, and has no
permanently attached additions; or
(3) Meet the permit requirements of section 7-15 and the elevation and
anchoring requirements for manufactured homes in section 7-20(a).
Sec.7-22. Floodways.
Since floodways are an extremely hazardous area due to the velocity of flood waters
which carry debris, potential projectiles, and erosion potential, the following provisions
apply:
(a) Until a regulatory floodway is adopted, no new construction, substantial
development, or other development (including fill) shall be permitted within Zones
Al-30 and AE, unless it is demonstrated that the cumulative effect of the
proposed development, when combined with all other development, will not
increase the water surface elevation of the base flood more than one (1) foot at
any point within the City..
(b) Within an adopted regulatory floodway, the City shall prohibit encroachments,
including fill, new construction, substantial improvements, and other
development, unless certification by a registered civil engineer is provided
Ordinance No. NS-XXX
11 A-21 Page 21 of 27
demonstrating that the proposed encroachment shall not result in any increase in
flood levels during the occurrence of the base flood discharge.
(c) If section 7-22(a) & (b) are satisfied, all new construction, substantial
improvement, and other proposed new development shall comply with all other
applicable flood hazard reduction provisions of this Article III.
ARTICLE IV. FLOODPLAIN VARIANCE PROCEDURE
Sec. 7-23. Nature of floodplain variances.
The issuance of a floodplain variance is for floodplain management purposes only.
Insurance premium rates are determined by statute according to actuarial risk and will
not be modified by the granting of a floodplain variance.
The floodplain variance criteria set forth in this section of the chapter are based on the
general principle of zoning law that floodplain variances pertain to a piece of property
and are not personal in nature. A floodplain variance may be granted for a parcel of
property with physical characteristics so unusual that complying with the requirements
of this chapter would create an exceptional hardship to the applicant or the surrounding
property owners. The characteristics must be unique to the property and not be shared
by adjacent parcels. The unique characteristic must pertain to the land itself, not to the
structure, its inhabitants, or the property owners.
Floodplain variances shall be approved only in rare circumstances. The long term goal
of preventing and reducing flood loss and damage can only be met if floodplain
variances are strictly limited. Therefore, the floodplain variance guidelines provided in
this chapter are more detailed and contain multiple provisions that must be met before a
floodplain variance can be properly granted. The criteria are designed to screen out
those situations in which alternatives other than a floodplain variance are more
appropriate.
Sec. 7-24. Conditions for floodplain variances.
(a) Generally, floodplain variances may be issued for new construction, substantial
improvement, and other proposed new development to be erected on a lot of
one-half acre or less in size contiguous to and surrounded by lots with existing
structures constructed below the base flood level, providing that the procedures
of Articles II and III have been fully considered. As the lot size increases beyond
one-half acre, the technical justification required for issuing the floodplain
variance increases.
(b) Floodplain variances may be issued for the repair or rehabilitation of "historic
structures" (as defined in section 7-5) upon a determination that the proposed
repair or rehabilitation will not preclude the structure's continued designation as
Ordinance No. NS-XXX
Page 22 of 27
11 A-22
an historic structure and the floodplain variance is the minimum necessary to
preserve the historic character and design of the structure.
(c) Floodplain variances shall not be issued within any mapped regulatory floodway
if any increase in flood levels during the base flood discharge would result.
(d) Floodplain variances shall only be issued upon a determination that the
floodplain variance is the "minimum necessary" considering the flood hazard, to
afford relief. "Minimum necessary" means to afford relief with a minimum of
deviation from the requirements of this chapter. For example, in the case of
floodplain variances to an elevation requirement, this means the City need not
grant permission for the applicant to build at grade, or even to whatever elevation
the applicant proposes, but only to that elevation which the City finds will both
provide relief and preserve the integrity of this chapter.
(e) Any applicant to whom a floodplain variance is granted shall be given written
notice over the signature of a community official that:
(1) The issuance of a floodplain variance to construct a structure below the base
flood level will result in increased premium rates for flood insurance up to
amounts as high as $25 for $100 of insurance coverage, and
(2) Such construction below the base flood level increases risks to life and
property. A copy of the notice shall be recorded by the Floodplain
Administrator in the County Recorder's Office of the County of Orange and
shall be recorded in a manner so that it appears in the chain of title of the
affected parcel of land.
(f) The Floodplain Administrator will
actions, including justification for
variances issued in its biennial
Management Agency.
maintain a record of all floodplain variance
their issuance, and report such floodplain
report submitted to the Federal Emergency
Sec.7-25. Appeals.
(a) In passing upon requests for floodplain variances, the City's Planning
Commission shall consider all technical evaluations, all relevant factors,
standards specified in other sections of this chapter, and the:
(1) Danger that materials may be swept onto other lands to the injury of others;
(2) Danger of life and property due to flooding or erosion damage;
(3) Susceptibility of the proposed facility and its contents to flood damage and the
effect of such damage on the existing individual owner and future owners of
the property;
Ordinance No. NS-XXX
11 A-23 Page 23 of 27
(4) Importance of the services provided by the proposed facility to the
community;
(5) Necessity to the facility of a waterfront location, where applicable;
(6) Availability of alternative locations for the proposed use which are not subject
to flooding or erosion damage;
(7) Compatibility of the proposed use with existing and anticipated development;
(8) Relationship of the proposed use to the comprehensive plan and floodplain
management program for that area;
(9) Safety of access to the property in time of flood for ordinary and emergency
vehicles;
(10) Expected heights, velocity, duration, rate of rise, and sediment transport of
the flood waters expected at the site; and
(11) Costs of providing governmental services during and after flood
conditions, including maintenance and repair of public utilities and facilities
such as sewer, gas, electrical, and water system, and streets and bridges.
(b) Floodplain variances shall only be issued upon a:
(1) Showing of good and sufficient cause;
(2) Determination that failure to grant the floodplain variance would result in
exceptional "hardship" to the applicant; and
(3) Determination that the granting of a floodplain variance will not result in
increased flood heights, additional threats to public safety, or extraordinary
public expense, create a nuisance (see "Public safety and nuisance"), cause
"fraud and victimization" of the public, or conflict with existing local laws or
chapters.
(c) Floodplain variances may be issued for new construction, substantial
improvement, and other proposed new development necessary for the conduct of
a functionally dependent use provided that the provisions of section 7-25 are
satisfied and that the structure or other development is protected by methods that
minimize flood damages during the base flood and does not result in additional
threats to public safety and does not create a public nuisance.
(d) Upon consideration of such factors, the Planning Commission may approve,
deny or approve with conditions any request for a floodplain variance.
Ordinance No. NS-XXX
Page 24 of 27
11 A-24
(e) The Planning Commission shall hear such other appeals as are authorized by
this chapter.
ARTICLE V.
PUBLIC WORKS MANAGEMENT STANDARDS
Sec. 7-26. General development standards.
The Floodplain Administrator shall review the following proposals for development in the
Special Flood Hazard Area
(a) All public works construction proposals;
(b) All tentative subdivision maps; and,
(c) All development proposals referred to him pursuant to section 7-25; and
shall approve, conditionally approve, or disapprove them based on his
determination of whether the following standards are satisfied:
(1) The proposed development must be consistent with the need to
minimize flood damage within the Special Flood Hazard Area.
(2) All public utilities and facilities, such as sewer, gas, electrical, and
water systems must be located and constructed to minimize or
eliminate flood damage.
(3) Adequate drainage must be provided to reduce exposure to flood
hazards. Within the Special Flood Hazard Area, adequate drainage
paths around structures on slopes must be provided to guide
floodwaters around and away from proposed structures.
Sec. 7-27. Base flood elevation data.
No tentative or final subdivision map which pertains to a proposed subdivision greater
than fifty (50) lots or five (5) acres, whichever is less, in the Special Flood Hazard Area
shall be approved unless base flood elevation data is included in or with the tentative
map.
Sec. 7-28. Water supply systems.
The Floodplain Administrator shall assure that new and replacement water supply
systems in the Special Flood Hazard Area are designed to minimize or eliminate
infiltration of floodwaters into the systems.
Ordinance No. NS-XXX
11 A-25 Page 25 of 27
Sec. 7-29. Sewerage systems.
The Floodplain Administrator shall assure that new and replacement sanitary sewerage
systems in the Special Flood Hazard Area are designed to minimize or eliminate
infiltration of floodwaters into the systems and discharges from the systems into the
floodwaters.
Sec. 7-30. Waste disposal systems.
The Floodplain Administrator shall assure that on-site waste disposal systems in the
Special Flood Hazard Area are located to avoid impairment to them or contamination
from them during flooding.
Sec. 7-31. Watercourse alterations.
The Floodplain Administrator shall notify adjacent communities and the state
coordinating office prior to any alteration or relocation of a watercourse in riverine
situations. He shall submit copies of such notifications to the federal insurance
administrator. He shall assure that the flood-carrying capacity within the altered or
relocated portion of any watercourse is maintained.
Section 5. If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it
would have adopted this ordinance and each section, subsection, sentence, clause, phrase
or portion thereof irrespective of the fact that any one or more sections, subsections,
sentences, clauses, phrases, or portions be declared invalid or unconstitutional.
ADOPTED this day of , 2009
Miguel A. Pulido
Mayor
Ordinance No. NS-XXX
Page 26 of 27
11 A-26
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the
attached Ordinance No. NS-XXX to be the original ordinance adopted by the City
Council of the City of Santa Ana on ,and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
Ordinance No. NS-XXX
11 A-27 Page 27 of 27
11 A-28
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
JULY 20, 2009
TITLE:
AMENDMENT TO AGREEMENT WITH MIDORI
GARDENS INC.
~~
t~~ ~.^°----~-"
CITY MANAGER
D ACTT
CLERK OF COUNCIL USE ONLY:
APPROVED
^ As Recommended
^ As Amended
^ Ordinance on 1St Reading
^ Ordinance on 2"d Reading
^ Implementing Resolution
^ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute the
attached amendment to the agreement with Midori Gardens Inc. extending
the current agreement through the 2009-2010 fiscal year, for a total
annual contract amount not to exceed $650,000, subject to non-substantive
changes approved by the City Manager and City Attorney.
DISCUSSION
Midori Gardens Inc. has been providing landscaping services for the
City's medians, on arterials, and at water reservoir sites. This
agreement was competitively bid in 2006.
The term of the current agreement extends through June 30, 2009 and
contains a provision for two one-year extensions. Midori has established
a good working relationship with the City and has performed well. Staff
recommends an extension to the agreement.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
25A-1
Amendment to Agreement with
Midori Gardens Inc.
July 20, 2009
Page 2
FISCAL IMPACT
Funds are budgeted and available in the Public Works Median Landscaping
activity (account no. 29-637-6261), the Water Production and Supply
activity (account no. 64-574-6261) and the Environmental Sanitation
activity (account no. 68-632-6291).
APPROVED AS TO FUNDS AND ACCOUNTS:
Jame G. Ross
~, Executive Director
Public Works Agency
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
25A-2
THIRD AMENDMENT TO
LANDSCAPE MAINTENANCE AGREEMENT
THIS THIRD AMENDMENT TO AGREEMENT is entered into on July 20, 2009, by
and between Midori Gardens ("Contractor") and the City of Santa Ana, a charter city and
municipal corporation of the State of California ("City").
RECITALS:
A. The parties entered into Agreement #A-2006-195, dated August 7, 2006, (hereinafter "said
Agreement") by which Contractor has provided landscape maintenance in street medians and
City owned property.
B. By amendment, the parties agreed to adjust rates to compensate for increases in labor and
material costs, extend the term of said Agreement and add compensation to pay for services
during the extended term.
C. In accordance with the terms and conditions of said Agreement, the parties wish to extend the
term and add compensation to pay for services during the extended term.
WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all
the terms and conditions of said Agreement, except those amended in this Third Amendment to
Agreement, the parties agree as follows:
l . Section 2.a., COMPENSATION, shall be deleted in its entirety and replaced with the
following:
"a. City agrees to pay, and Contractor agrees to accept as total payment for its
services, the rates and charges identified in Exhibit D-1, attached hereto and
incorporated by this reference. The total sum to be expended under this
Agreement shall not exceed $650,000 for the term from July 1, 2009 through June
30, 2010."
2. Section 3, TERM, shall be deleted in its entirety and replaced with the following:
``This Agreement shall commence on August 1, 2006 and continue through June
30, 2010, unless terminated earlier in accordance with Section 12, below. The
term of this Agreement may be extended for an additional one-year period, at the
option of the City.
3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in
full force and effect.
//
//
//
25A-3
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to Agreement
on the date and year first written above.
ATTEST:
PATRICIA E. HEALY
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
Laura Sheedy
Assistant City Attorney
CITY OF SANTA ANA
DAVID N. REAM
City Manager
MIDORI GARDENS
NAGA HAMAMOTO
President
2 5A-4
EXHIBIT D-1
CONTRACT PRICING
(effective 7/1/09)
Contractor will provide all labor, equipment and materials necessary for city-wide
landscaping maintenance service of street medians and various public facilities in
accordance with the specifications and special provisions herein.
I. ROUTINE MAINTENANCE
Cost/Month
Cost/Year
A. Medians & Service Road Dividers $ 31,874.13 /mo. $382,489.56/yr.
B. Other Areas $ 2,623.83 /mo.
$ 31,485.96/yr.
C. Parking Lots $ 478.13 /mo.
$ 5,737.56/yr.
D. Neighborhood Monument/Entry Areas$ 5,233.33 /mo. $ 62,799.96/yr.
E. Water Reservoir Facilities $ 2,154.97/mo.
$ 25,859.64/yr.
F. Arterial Sidewalks Maintenance $ 1,475.17/mo.
$ 17,702.04/yr.
G. Annual Color
$ 571.03/mo.
$ 6,852.36/yr.
II NEW MAINTENANCE
A. Turf Area
B. Shrub/Ground Cover Area
C. Hardscape Area
D. Arterial Sidewalk
Cost1S uare Foot/Month
$ .106
$ .0;
$,_ 0;
$ .03_
25A-5
III EXTRAORDINARY MAINTENACE
A. Materials -Contractor's cost from supplier plus 15%
B. Labor -Contractor's rates (including all fringe benefits, markup, overhead, etc.
for the following job classifications:
1. Landscape Maintenance Laborer
Strai~h
$ 20.90
$ 27.50
$ 38.50
Overtime
$ 31.35
$ 41.25
$ 57.75
2. Irrigation Technician
3. Supervisor
IV EXTRAORDINARY PLANTING
1. 36" box tree; standard trunk
2. 36" box tree; multi trunk
3. 24" box Tree; standard trunk
4. 24" box tree; multi trunk
5. 15 gal plant
6. 5 gal plant
7. 1 gal plant
8. 4" flat of annual color
9. Flat of ground cover
$ 605.00
$ 660.00
$ 275.00
$ 330.00
$ 71.50
$ 17.60
$ 6.60
$ 24.20
$ 17.60
25A-6
REQUEST FOR COUNCIL/
AGENCY ACTION
MEETING DATE:
JULY 20, 2009
TITLE:
JOINT PUBLIC HEARING - GENERAL PLAN
AMENDMENT NO. 2 0 0 8- 0 2, AMENDMENT
APPLICATION NO. 2008-11, SITE PLAN REVIEW
NO. 2009-02 AND DISPOSITION AND DEVELOPMENT
AGREEMENT WITH VISTA DEL RIO HOUSING
PARTNERS, L.P. TO ALLOW THE CONSTRUCTION OF
41 SPECIAL NEEDS RESIDENCES AT 1600 WEST
MEMORY LANE1 ~'
CITY M~1 AGER EXECUTIVE DIRECTOR
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
^ As Recommended
^ As Amended
^ Ordinance on 1st Reading
^ Ordinance on 2nd Reading
^ Implementing Resolution
^ Set Public Hearing For
CONTINUED TO
FILE NUMBER
CITY COUNCIL ACTION
1. Approve and adopt the Mitigated Negative Declaration and Mitigation
Monitoring Program, Environmental Review No. 2005-42.
2. Adopt a resolution approving General Plan Amendment No. 2008-02.
3. Adopt an ordinance approving Amendment Application No. 2008-11.
4. Adopt a resolution approving Site Plan Review No. 2009-02.
5. Authorize the City Manager to execute a loan agreement with Vista del
Rio Housing Partners, L.P. in an amount not to exceed $500,000,
subject to non-substantive changes approved by the City Manager and
City Attorney.
6. Adopt a resolution making certain findings with respect to the
consideration to be received by the Community Redevelopment Agency
pursuant to a Disposition and Development Agreement between the
Community Redevelopment Agency and Vista Del Rio Housing Partners,
L.P., for the sale of certain real property in the Merged
Redevelopment Project Area and approving the sale of said real
property upon the terms and conditions contained in that Agreement.
7. Authorize the City Manager to accept transfer of the .46 acre park
site.
80A-1
Joint P.H. - GPA No. 08-02, AA No. 08-11,
SPR No. 09-02 & DDA with Vista Del Rio
Housing Partners, L.P.
July 20, 2009
Page 2
COMMUNITY REDEVELOPMENT AGENCY ACTION
1. Adopt a resolution approving a Disposition and Development Agreement
with Vista Del Rio Housing Partners, L.P.
2. Transfer the .46 acre park site to the City.
Planning Commission Action
On March 9, 2009, the Planning Commission recommended that the City
Council approve and adopt the Mitigated Negative Declaration and Mitigation
Monitoring Program, Environmental Review No. 2005-42; adopt resolution
approving General Plan Amendment No. 2008-02; adopt an ordinance approving
Amendment Application No. 2008-11; and adopt resolution approving Site Plan
Review No. 2009-02 by a vote of 6:0 (Turner abstained) to allow the
construction of 41 multiple residential units for persons with special
needs at 1600 West Memory Lane. The Planning Commission added a condition
for the applicant to coordinate with the Concord neighborhood regarding
westerly block wall outlined in the attached staff report (Exhibit A). A
Mitigation Measure was also added to the Mitigated Negative Declaration
Aesthetic Section requiring the Applicant to remove all graffiti on the
property during construction within 24 hours. The amendments to the
General Plan Land Use Element incorporating the proposed residential
project are attached as Exhibit B.
Community Redevelopment and Housing Commission Recommendation
At its Regular Meeting of March 17, 2009, by a vote of 5:0, the Community
Redevelopment and Housing Commission recommended that the:
1) City Council adopt a resolution making certain findings with respect to
the consideration to be received by the Community Redevelopment Agency
pursuant to a Disposition and Development Agreement between the Community
Redevelopment Agency and Vista Del Rio Housing Partners, L.P., for the sale
of certain real property in the Merged Redevelopment Project Area and
approving the sale of said real property upon the terms and conditions
contained in that Agreement.
2) Community Redevelopment Agency adopt a resolution approving a
Disposition and Development Agreement with Vista Del Rio Housing
Partners, L.P.
80A-2
Joint P.H. - GPA No. 08-02, AA No. 08-11,
SPR No. 09-02 & DDA with Vista Del Rio
Housing Partners, L.P.
July 20, 2009
Page 3
DISCUSSION
In 2004, the Agency acquired a 3.2 acre vacant site from the County of
Orange at Memory Lane and the Santa Ana River channel for purposes of
developing a 41-unit (including an on-site manager's unit) affordable
housing project. Since that time, Goodwill Industries of Orange County
expressed an interest in developing permanent, affordable housing for
physically and/or developmentally-disabled persons. Goodwill entered
into an agreement with the Foundation for Affordable Housing, Inc. to
serve as the developer for the project. On October 6, 2008, the Agency
entered into a one-year Exclusive Negotiation Agreement (ENA) with Vista
Del Rio Housing Partners, L.P., a partnership of Foundation for
Affordable Housing (FFAH) and Goodwill Industries. In order for the
developer to secure the project entitlements and apply to the California
Tax Credit Allocation Committee (TCAC) for an allocation of $8,601,047 in
low-income tax credits to finance the project, the Agency must enter into
a Disposition and Development Agreement (DDA).
The major terms of the Disposition and Development Agreement (DDA) will
include the following:
• Purchase price for the property of $1.00
• Agency shall pay for all application fees and permit fees or costs
associated with City entitlements, approximately $28,000.
Additionally, the Agency will contribute an amount not to exceed
$100,000 for an enhanced entryway to the development including
upgraded landscaping, pavers, fencing and signage.
• Scope of Development outlined in the Planning staff report.
• Developer will certify the income levels of persons (s)/households
residing in the units to maintain extremely low, very-low and low-
income affordability for a 55-year period. In addition, priority
will be given to Santa Ana residents and military veterans.
The unit mix and rent restrictions are as follows:
Bedroom 30o AMI
Extremely Low Income 50o AMI
Very Low Income
Size No. of Units Rent No. of Units Rent
Bachelor 9 $452 6 $717
One 10 $475 10 $759
Two 1 $568 4 $910
80A-3
Joint P.H. - GPA No. 08-02, AA No. 08-11,
SPR No. 09-02 & DDA with Vista Del Rio
Housing Partners, L.P.
July 20, 2009
Page 4
The FFAH and Goodwill have added AMCAL to the partnership. AMCAL is a
for-profit housing developer which was founded in 1978. They develop
both market rate and affordable housing throughout Southern California.
They have completed 2,829 units in cities such as Los Angeles, Santa
Barbara, Sacramento, Fresno and Simi Valley. AMCAL will be the Developer
General Partner responsible for the construction and development of the
site. FFAH will be the Managing General Partner responsible for managing
the partnership, oversight of the onsite management company and insuring
that the property complies with all regulations.
The total cost to develop the project is $13,481,544. There is a
$500,000 gap that staff is recommending be filled with HOME funds. The
table below summarizes the proposed funding sources and anticipated
costs.
Permanent Funding Sources Amount
Permanent Loan $ 700,000
Tax Credits $7,834,218
HOME $ 500,000
Agency Grant for entry $ 100,000
Goodwill Grant $ 125,000
Deferred Developer Fee $ 344
Tax Credit Allocation
Committee (TCAC) $1,236,982
Donated Land $2,985,000
Total $13,481,544
Project Costs Amount
Land and demolition $ 2,992,771
Construction $ 6,180,366
Fees (legal, architectural
financing, etc) $ 2,031,794
Construction interest $ 788,300
Reserves $ 175,000
Developer fee $ 1,313,313
Total $13,481,544
The developer should be notified in September if they were successful in
their application for tax credits. If successful, they will have until
December 31, 2009 to secure a tax credit partner.
80A-4
P.H. - GPA No. 08-02, AA No. 08-11,
Joint P.H. - GPA No. 08-02, AA No. 08-11,
SPR No. 09-02 & DDA with Vista Del Rio
Housing Partners, L.P.
July 20, 2009
Page 5
FISCAL IMPACT
Funds from the sale of the property in the amount of $1 will be credited
to the Merged Housing Sale of Land account (no. 507-O1-5721) and funds in
the amount of $100,000 and all application and permit fees associated
with the project are available in the Merged Housing Capital Projects
account (no. 507-936-6631). Funds for the HOME loan in the amount of
$500,000 is available in the HOME Program Federal Grant account (no. 130-
148-6951).
APPROVED AS TO FUNDS AND ACCOUNTS:
V ice. D wr1 ~ mot' r A i.
Jay M. Trevino Francisco Gutierrez ~.,/
Executive Director Executive Director
Planning & Building Agency Finance & Management Services Agency
i
ell Landry ayle
Housing Division Ma ger
Community Development Agency
MGM:rb
mm\PLANCOM\aa08-11gpa08-02spr09-02&DDA 1600 Memory.joint cc-cra
80A-5
REQUEST FOR
Planning Commission Action
PLANNING COMMISSION MEETING DATE:
MARCH 9, 2009
TITLE:
GENERAL PLAN AMENDMENT NO. 2008-02,
AMENDMENT APPLICATION NO. 2008-11 AND
SITE PLAN REVIEW NO. 2009-02 TO ALLOW THE
CONSTRUCTION OF 41 SPECIAL NEEDS RESIDENCES
AT 1600 WEST MEMORY LANE
Prepared by Melanie G. McCann
_~
Executive Director
RECOMMENDED ACTION
Recommend that the City Council:
PLANNING COMMISSION SECRETARY
APPROVED
^ As Recommended
^ As Amended
^ Set Public Hearing For
DENIED
^ Applicant's Request
^ Staff Recommendation
CONTINUED TO
Planning Man er
1. Approve and adopt the Mitigated Negative Declaration and Mitigation
Monitoring Program, Environmental Review No. 2005-42.
2. Adopt resolution approving General Plan Amendment No. 2008-02.
3. Adopt an ordinance approving Amendment Application No. 2008-11.
4. Adopt resolution approving Site Plan Review No. 2009-02.
DISCUSSION
Request of Applicant
The Foundation for Affordable Housing is requesting approval to develop 41
special needs multi-family residential units at 1600 West Memory Lane. To
allow the proposed Vista del Rio project, the applicant is requesting a
General Plan Amendment to redesignate the site from Open Space (OS) to
Medium Density Residential (MR-15). Additionally, the request includes an
Amendment Application to change the zoning district from Open Space (OS)
to Specific Development No. 83, as well as approval of Site Plan Review
No. 2009-02.
Property Description
The proposed Vista del Rio development would be constructed on 2.74 acres
of a 3.2 acres wedge-shaped, undeveloped parcel. The remaining .465-acre
portion of the site adjacent to the Santa Ana River trail will be a
EXHIBIT A
80A-6
General Plan Amendment No. 08-02
Amendment Application No. 08-11
Site Plan Review No. 2009-02
March 9, 2009
Page 2
separate legal parcel to be reserved for the future Forrest Paul Trailside
Rest Area. The property is bounded by Memory Lane/Garden Grove Boulevard
and commercial development to the north (located in the City of Orange)
and single family residential development to the west (located in the City
of Santa Ana). The Santa Ana River corridor, a Class 1 off-road bikeway,
and the River View golf course are located to the east and south of the
project site. The project site presently has a General Plan land use
designation of Open Space (OS) and is in the Open Space (O) zoning
district (Exhibits 1 and 2).
Project Description
The proposed Vista del Rio project is a 41-unit special needs housing
project designed to provide permanent affordable housing to physically
and/or developmentally disabled persons, with one unit reserved for a
full-time on-site property manager (Exhibit 3) The project includes
indoor common areas for social activities and ancillary supportive
services. Two large common open space areas have been incorporated into
the housing project, including a 10,416 square foot interior courtyard
with a central fountain, grass area and shade structure. The second
passive common open space is 15,125 square feet, located at the south
end of the site, and visible from the adjacent Santa Ana River trail and
scenic corridor. The adjacent .465 future park site will also be
visually and physically accessible to Vista Del Rio residents by way of
a path and secured wrought iron gate. The site landscaping will include
drought tolerant and California native plant palette. The majority of the
residential complex will be surrounded by security access gates, a five
and one-half foot wrought iron fence with periodic six and one-half feet
stone pilasters, as well as a six foot high solid wall adjacent to the
existing single family residences.
The 43,200 square foot special needs residential development is designed
as a two-story, U-shaped building. The building architecture incorporates
many elements of Craftsman style and features stone veneer, wood siding
and river rock exterior finishes. The proposed Vista del Rio will provide
17 studio units, 19 one-bedroom units, and five two-bedroom units. The
project will incorporate a community kitchen, office space, two
classrooms, a multi-purpose room, a lounge and computer room for
residents. Based on similar housing projects serving residents of special
needs, it is estimated that the proposed project would house approximately
58 residents. Surface parking is provided to accommodate the needs of
80A-7
General Plan Amendment No. 08-02
Amendment Application No. 08-11
Site Plan Review No. 2009-02
March 9, 2009
Page 3
residents, staff and visitors. The applicant proposes to incorporate
sustainability measures including energy efficient appliances, and the
inclusion of solar panels on the main building and carports.
Analysis of the Issues
On October 6, 2008, the Redevelopment Agency entered into an Exclusive
Negotiation Agreement (ENA) with Vista Del Rio Housing Partners, L.P., a
California limited partnership (Developer) for a term of one year. The
proposed 2.74 acre site for the residential development was acquired by
the Agency in November 2004. Staff has been working with the Foundation
for Affordable Housing and Goodwill Industries of Orange County to
create a high quality affordable housing project. The Redevelopment
Agency will be entering into a Disposition and Development Agreement
(DDA) with the Developer in order to effectuate the proposed
development. The terms and conditions of the DDA will include the
purchase price for the property of $1.00, subject to confirmation by a
fair reuse analysis; and the developer to certify the income levels of
persons(s)/households residing in the units to maintain extremely low,
very low and low-income affordability for a 55 year period. The
developer is also committed to apply for a $4.9 million State
Multifamily Housing Program, Supportive Housing Program funds.
General Plan Amendment
The proposed project requires a General Plan Amendment to redesignate the
site from Open Space (OS) to Medium Density Residential (MR-15) with a
maximum allowable density of 15 dwelling units per acre. Exhibit 4
describes the revisions to the Land Use Element text and Land Use Maps to
pursue the proposed 41 unit housing project. This proposed General Plan
Amendment to redesignate 2.7 acres from open space to a residential land
use would further the goals of the General Plan Housing Element; that is
to encourage the construction of new affordable housing to address Santa
Ana's Regional Housing Needs Assessment (RHNA) to serve the needs of the
local community and the region. The remaining .465-acre portion of the
site will remain designated as open space for the future design and
development of a public park/trail rest stop.
80A-8
General Plan Amendment No. 08-02
Amendment Application No. 08-11
Site Plan Review No. 2009-02
March 9, 2009
Page 4
Amendment Application (Zone Change)
Specific Development Districts were authorized and established for the
purpose of protecting and enhancing the value and appearance of property,
as well as to promote the orderly development of property. In order to
facilitate the proposed special needs affordable housing project, the
creation of a Specific Development (SD-83) would be most appropriate. The
Specific Development will allow multiple family residences and ancillary
uses that are currently permitted in other residential zones (Exhibit 5).
The design and development standards are also outlined in the proposed SD-
83, parking, setback, landscape and open space requirements. Based on a
parking study of similar residential developments serving persons of special
needs (physical or developmentally challenged), the proposed parking
requirement is one space per residential unit, with one parking space
designated for resident drop off and pickup. Visitor parking spaces is
proposed at not less than 24 percent of the minimum required spaces for
residents. The proposed Specific Development District supports General
Plan policies to address a balance of land uses to address basic community
needs and by protecting and enhancing the development site to be
harmonious with the existing development and natural resources in the
area.
Site Plan Review
Santa Ana Municipal Code requires a review by Planning Commission of all
plans within a specific development area to ensure the project is in
conformity with the specific development standards. The review also
ensures that the buildings, structures and grounds are in keeping with the
neighborhood and nearby land uses. The proposed project is in compliance
with all applicable development standards including the General Plan (as
proposed for amendment), the Municipal Code and the Vista del Rio Specific
Development Plan (SD-83) as proposed.
In late summer of 2008, neighborhood meetings were coordinated for the
applicant to present the proposed project to the surrounding neighborhoods
of Concord, Riverglen, Casa de Santiago and Riverview. The residents
present inquired regarding parking needs, potential for overcrowding of
units, perimeter walls and landscape improvements. Overall, those in
attendance at the neighborhood meetings expressed support for the project.
In addition, neighborhood leaders were provided a copy of the Draft
Mitigated Negative Declaration upon its public release on January 9, 2009.
80A-9
General Plan Amendment No. 08-02
Amendment Application No. 08-11
Site Plan Review No. 2009-02
March 9, 2009
Page 5
Written comments on the Draft document have been received by Santa Ana
Unified School District, County of Orange, Cal Trans, the American Native
Gabrielino Tongva Nation and the State Water Quality Board.
The architectural and landscape design of the Craftsman style multi-family
housing project will be compatible with the surrounding uses and
strengthen this westerly gateway into the City. Additionally, the project
will provide benefits to the community by providing affordable housing
opportunities. The project addresses a number of the goals and policies
of the General Plan by providing affordable housing for persons with
special needs, and the inclusion of open space designed to enhance the
future Forrest Paul Trailside Rest Stop and Santa Ana River Scenic
Corridor. As a result, it is recommended that the Planning Commission
recommend approval of the discretionary actions.
CEQA Compliance
In accordance with the California Environmental Quality Act, Mitigation
Negative Declaration and Mitigation Monitoring Program, Environmental
Review No. 05-42, has been prepared for this project (Exhibit 6).
~~ ~~
Melanie G. McCann, AICP
Associate Planner
MGM : j m
mm\PLANCOM\aa08-11gpa08-02spr09-02 1600 Memory.pc
80A-10
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Page 8 of 8
LAND USE ELEMENT
SANTA ANA GENERAL PLAN
City of Santa Ana
Planning Division
Adopted
February 2, 1998
The following is a chronology of the approved general plan amendments that have been incorporated into this document
since the comprehensive update of the General Plan Land Use Element adopted by Santa Ana City Council February 2, 1998
(GPA 1997-05):
GPA 2008-02 (April 6, 2009), GPA 2004-03 (February 2, 2009), GPA 2008-01 (May 5, 2008), GPA 2007-02 (June 18, 2007),
GPA 2006-01 (October 2, 2006), GPA 2005-01 (December 5, 2005), GPA 2005-02 (October 17, 2005), GPA 2004-01 (April 5,
2005, as passed by fhe voters of Santa Ana), GPA 2004-04 (July 19, 2004), GPA 2004-06 (July 6, 2004), GPA 2003-02 (June
16, 2003), GPA 2003-01 (February 18, 2003), GPA 2002-01 (September 3, 2002), GPA 2002-03 (August 19, 2002), GPA
2001-03 (February 19, 2002), GPA 2001-02 (January 7, 2002), GPA 2000-09 (May 7, 2001), GPA 2000-08 (February 5,
2001), GPA 2000-03 (December 4, 2000), GPA 2000-02 (November 20, 2000), GPA 1999-02 (October 18, 1999), GPA 1999-
01 (August 16, 1999), GPA 1998-04 (October 5, 1998), GPA 1998-05 (September 21, 1998), GPA 1998-01 (May 4, 1998).
GPA 08-2/AA 08-11/SPR 09-2
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80A-23
LAND USE ELEMENT
home parks, a mixture of duplexes and single family residences, or
small lot subdivisions.
• The Medium Density Residential (MR-15) designation applies to
those sections of the City which are developed with residential
uses at densities of up to 15 units per acre. Development in this
designation is characterized by duplexes, apartments, or a
combination of both. A total of 4a-0 418.2 acres is designated as
Medium Density Residential. The designation applies to areas
located in the vicinity of downtown, areas north and south of
MacArthur Boulevard, and in other areas where there are
established multiple-family development projects.
• The Residential /Industrial designation permits either residential
development up to 15 units per acre or industrial uses. The
designation applies to the Logan neighborhood, which was
established near the turn of the century. Since the 1930s, this
18.5-acre area has developed with a mixture of residential and
industrial uses.
• The District Center designation permits residential development up
to 90 units per acre when it is a component of a mixed-use,
master planned project, approximately 359 acres are in this
designation. This category is described in greater detail later in this
section.
Professional and Administrative Office
The Professional/Administrative office (PAO) designation applies to those
areas where professional and/or administrative offices are predominant, or
where such development is being encouraged. Land included in this
designation is found primarily near the Civic Center, and along the First
Street and Tustin Avenue Corridors in close proximity to freeways. There
are other smaller PAO areas in the City such as along North Broadway and
along portions of east and west Seventeenth Street. A total of 725
acres is included in this land use designation. The floor area ratio intensity
standard applicable to this land use designation ranges from 0.5 to 1.0.
The Professional and Administrative Office areas are intended to provide a
unique environment for office development in those areas of the City where
office uses are the predominant land use. The purpose for maintaining and
supporting these areas exclusively for office and office-related uses is to
encourage major employment centers at locations which significantly lessen
the impact to the City's local street system. The First Street/Tustin Avenue
office corridor between the Santa Ana (I-5) and Costa Mesa (SR-55)
Freeways serves this purpose. In addition, the orderly, well-maintained
quality of existing development supports a continuation of these areas as
functional office/employrp~Rt gen~r,~.
Revised (April 6, 2009) 8 V,a~L~F
LAND USE ELEMENT
Industrial
The Industrial designation applies to those areas developed with
manufacturing and industrial uses. The designation applies to areas which
are predominantly industrial in character, and includes those industrial
districts in the southwestern, south central and southeastern sections of the
City. A total of 2,280.9 acres of land in the City is designated as Industrial.
The maximum floor area ratio for this designation is 0.45.
The Industrial districts of the City are vital to its economic health. These
areas provide employment opportunities for local residents, and generate
municipal revenues for continued economic development. As one of the
County's oldest cities, Santa Ana has long been an industrial center for the
region. The City's goal is to maintain this strong industrial base by setting
land use policies which preclude the intrusion of less intensive commercial or
residential uses. Typical uses found in this district include the following:
• Light and heavy product manufacturing and assembly; and
• Commercial uses which are ancillary to industrial uses in the district.
Institutional
The Institutional designation includes the Civic Center, other governmental
facilities, City facilities and public institutions such as schools, etc. Only
public properties of approximately five acres or more are designated as
Institutional. The maximum applicable floor area ratio standard for this
designation is 0.5. The 0.5 FAR is used as a guideline since most
development in this designation are State, federal, and local governmental
facilities that are not subject to local development regulations. A total of
812.6 acres of land is included in this designation.
Open Space
The Open Space designation is applied to parks, water channels,
cemeteries and other open space uses. A total of 4-;09 1,016.3,acres are
included in this land use designation. Of this total, 375 acres of public park
land is included in this land use designation.
Revised (April 6, 2009) A-23
80A-25
LAND USE ELEMENT
Table A-4 indicates the development possible under the build-out of the
Land Use Plan. The build-out for residential land uses considered two
scenarios. Effective build-out for residential development is calculated by
adding the 3,232 units possible in the areas designated as District Center to
the existing 74,588 units presently found in the City. Theoretical build-out for
residential development considered the development possible if all of the
areas designated as residential were developed according to the permitted
Land Use Plan intensities. Since the Land Use Element does not
contemplate the elimination of existing housing in the City, the effective
build-out figure represents a more realistic estimate of future residential
development.
As indicated in Table A-4, four of the non-residential land use designations
have a range in FAR intensities. For the non-residential land use
designations, effective build-out considered the development possible under
the lower range of FAR intensities while theoretical build-out considered the
upper FAR range. Typically, parking and landscaping requirements will
result in significantly less floor area for commercial and industrial
developments than that which is permitted under the General Plan.
As indicated in Table A-4, between 6~49~ 65,287 to 77,820 housing units
are allowed by the Land Use Plan. The additional units which presently
exist in the City beyond the maximum number permitted under the
theoretical build-out scenario are a reflection of the higher density
multiple-family developments constructed in the 1970's and 1980's.
However, the purpose of the Land Use Plan as its applies to the residential
areas is to preserve and maintain the stability of existing neighborhoods,
regardless of the character of development. The intent of the Plan is not to
create any displacement, nor decrease existing development densities.
Rather, it is to ensure a safe, healthy, and livable environment for City
residents. Existing residential development entitlements are protected
through this Land Use Element, applicable Zoning regulations, and
sections of the City code pertaining to legal nonconforming uses.
The Land Use Element's implementation may result in an increase in the
amount of commercial, office, and industrial development in the City. As
indicated in Table A-4 up to 54,552,017 square feet of commercial and office
development, and 44,891,128 square feet of industrial development are
possible under the effective capacity parameters of Land Use Plan.
Revised (April 6, 2009) ~ ~~O w
Amended Table A-4
Land Use Plan Build-out Capacities
Intensity/Density Effective Theoretical
Land Use Acres Standards Build-out, Build-out
Mixed Use2 103.5 ac FAR 3.0
Metro East Residential DC 5,551 d.u.
SubTotal 5,551 d.u.
Metro East Commercial DC 3,245,185 s.f. 3,245,185 s.f.
SubTotal 3,245,185 s.f. 3,245,185 s.f.
Residential
Low Density Residential LR-7 6,474.4 ac. 7 d.u./ac 45,321 d.u.
Low Medium Density Residential LMR-11 443.1. 11 d.u./ac 4,875 d.u.
Medium Density Residential MR-15 418.2 ac 15 d.u./ac 6,273 d.u.
^'~- ~~c 6,198 d.u.
Residential/Industrial3 R/1-15 9.2 ac. 15 d.u./ac 138 d.u.
District Center4 DC 35.9 ac. 90 d.u./ac 3,232 d.u.
SubTotal 7,371.5 ac. 77,820 d.u., 59,736 d.u.
Commercial
Professional & Admin. Office PAO 621.5 ac. FAR 0.5-1.0 13,536,270 s.f. 27,072,540 s.f.
General Commercial GC 1,113.6 ac FAR 0.5-1.0 24,254,426 s.f. 48,508,852 s.f.
District Center4 DC 323.2 ac. FAR 1.0-2.0 14,079,332 s.f. 28,158,665 s.f.
One Broadway Plaza District Ctrs OBPDC 4.3 ac. FAR 2.9 543.193 s.f. 543.193 s.f.
SubTotal 2,062.6 ac. 52,413,221 s.f. 104,283,249 s.f.
Industrial
Industrial IND 2,280.9 ac. FAR 0.45 44,710,202 s.f. 44,710,202 s.f.
Residential/Industrial3 R/I-15 18.5 ac. FAR 0.45 180.926 s.f. 180.926 s.f.
SubTotal 2,290.1 ac. 44,891,128 s.f. 44,891,128 s.f.
Other
Institutionals INS 812.6 ac. FAR 0.2-0.5 7,079,023 s.f. 17,697,557 s.f.
Open Space OS 1,016.3 ac.
a
A~
&A FAR 0.2 8.854.005 s.f. 8.854.005 s.f.
SubTotal -,
-
-,a~
1,828.9 ac. 8876-s:#:
15,933,028 s.f. 8~~~-
26,551,562 s.f-
motes:
,Effective capacity for non-residential development assumes development possible under the lower range of FAR intensity standards
with the exception of the Metro East District Center. Residential effective capacity was calculated by adding the 8,783 units possible in
the District Center with the existing 74,588 (Census 2000) housing units.
ZThe Metro East District Center allows a range of intensity far mixture of residential and commercial development based on the Metro
East Mixed Use Overlay Zone development standards.
3Land use designation permits both residential and industrial development. Build-out assumed 50% of the land area will be developed
as residential and 50% as industrial development.
,Land use designation permits both residential and commercial development. Buildout assumes 90% of land area will be developed
as commercial and 10% will be developed as residential.
FAR -floor area ratio, d.u. -dwelling units, s.f. -square feet (of floor area). Acreage shown in table does not include roads in
rightof-way.
sEffective capacity assumes FAR of 0.2
°Land use designation permits high intensity office development with ancillary retail use.
This table has been revised to correspond with the GIS Land Use Map illustrated in ExhibrY 2.
Revised (April 6, 2009)
80~ 317
Vista del Rio Specific Development No. 83 (SD-831
TABLE OF CONTENTS
PAG E
SECTION 1. Applicability of Ordinance .................................................................. 1
SECTION 2. Purpose .......................................................................................... 1
SECTION 3. Objectives ....................................................................................... 1
SECTION 4. Building Density ............................................................................... 1
SECTION 5. Permitted Uses ................................................................................ 2
SECTION 6. Conditionally Permitted Uses ............................................................... 2
SECTION 7. Development Standards for Multiple Family Dwellings .............................. 2
1. Residential Unit Size ..... 2
2 ............................................................
Building Height
2
.
3 ........................................................................
Building Setbacks
.
4 ...................................................................
Parking 2
. ................................................................................. 3
5. Storage .............................................. 3
6 ...................................
P
i
. r
vate Open Space ............................................ 3
7 .....................
Amenities
. .............................................................................. 3
8. Landscape 4
.............................................................................
SECTION 8. Development Standards for Common Areas ........................................... 5
1. Common Open Space ....................................... 5
2. .......................
Entry and Perimeter walls ......................................................... 6
3. Signage ................................................ 6
4. ................................
Lighting
5. .................................................................................
Mailboxes and other Appurtenances 7
7
...........................................
SECTION 9. Miscellaneous Regulations 7
.................................................................
1. Regulations Specifically Included Herein by Reference .................... 7
ATTACHMENTS
A. Site Plan ..................................................................................
8
B. Landscape Plan ........................................................................ 9
EXHIBIT 5
80A-28
Vista del Rio Specific Development (SD-83)
SECTION 1 APPLICABILITY OF ORDINANCE
The Specific Development No. 83 (SD-83) zoning district, as authorized by Chapter
41, Article III, Division 26, of the Santa Ana Municipal Code, is specifically subject
to the regulations contained in this ordinance for the express purpose of
establishing use district regulations. All other applicable chapters, articles and
sections of the Santa Ana Municipal Code shall apply unless expressly waived or
superseded by this ordinance. Use district regulations established in Chapter 41,
Article III, of the Santa Ana Municipal Code for zoning districts other than the SD
zoning district may be incorporated herein by reference. The boundaries of
Riverview Villas Specific Development District shall be defined pursuant to Exhibit
A (attached hereto and incorporated as though fully set forth herein).
SECTION 2 PURPOSE
The Specific Development No. 83 (SD-83), consisting of standards and regulations,
is hereby established for the express purpose of protecting the health, safety, and
general welfare of the City by encouraging the use of innovative planning concepts
and principles, promoting and enhancing the value of properties, and encouraging
orderly development for residential development serving persons of special need.
SECTION 3 OBJECTIVES
The objectives of SD-83 include the provision of the following:
• Permanent rental housing to people with developmental and physical
disabilities earning less that 30-60% of Area Median Income for Orange
County.
• A handicap accessible, affordable apartment community
• A visually harmonious development as viewed both internally and externally,
particularly from adjacent Santa Ana scenic corridor and bikeway.
• A development that is consistent with the Medium Density designation of the
General Plan and that implements the spirit and intend of the policies of the
General Plan
SECTION 4 BUILDING DENSITY
The maximum authorized residential density for the Vista del Rio is 15 dwelling
units per acre.
1
80A-29
SECTION 5 PERMITTED USES
The permitted land uses shall be as follows:
1. Multiple-family apartments for persons of special needs (physical or
developmentally challenged).
2. Accessory structure and uses determined to be incidental and
necessary to the primary use, subject to the approval of the Planning
Manager.
3. Childcare facilities providing care to not more than eight (8) children.
SECTION 6 CONDITIONALLY PERMITTED USES
The following uses are permitted upon the approval of a conditional use permit in
accordance with the Santa Ana Municipal Code:
1. Churches and accessory church buildings and functions.
2. Neighborhood and community service centers.
3. Care homes.
4. Accessory structure more than 15 feet in height or more than one
story.
SECTION 7 DEVELOPMENT STANDARDS FOR MULTIPLE FAMILY DWELLINGS
The following general development standards are applicable to multiple family
dwellings and consistent with Site Plan (Attachment A):
1. Residential Unit Size
The minimum unit size for the project shall be a minimum of:
Studio units -543 square feet
One-bedroom units - 627 square feet
Two-bedroom units - 897 square feet
2. Building Height
The height limit for main buildings and related structures is 35 feet
and for accessory buildings and other structures is 15 feet.
Accessory structures more than 15 feet in height will require a
Conditional Use Permit.
3. Building Setbacks
(a) Front: A minimum twenty-five (25) feet front yard building setback shall
be provided.
2
80A-30
(b) Easterly Side: A minimum forty-two (42) feet side yard building setback
shall be provided.
(c) Westerly Side: A minimum ten (10) feet side yard building setback shall
be provided.
(d) Rear: A minimum fifteen (15) feet side yard building setback shall be
provided.
4. Parking
Parking for multifamily apartment developments serving persons of special
needs (physical or developmentally challenged) residential units shall
provide a minimum of one (1) parking space per unit. In addition, guest
parking spaces should be provided in an amount not less than 24 percent
of the minimum required spaces. There shall be a minimum of one
resident drop-off and pick-up parking space located at the main building
entrance; minimum dimension to be ten (10) feet wide by eighteen (18) feet
in length.
Covered parking structures are to be compatible with architectural design
of the main residential building.
5. Storage
A separate, enclosed lockable storage space shall be reserved for
each apartment unit. This personal resident storage space shall be
at least two hundred fifty (250) cubic feet in size and shall have
minimum dimensions for four feet by eight (8) feet.
6. Private Open Space
Each residential unit shall provide private open space of no less than
ninety (90) square feet and shalt have a minimum dimension of six
(6) feet in each direction. Refer to Section 8, page 5, for common
open space requirements.
7. Amenities
Project amenities that are consistent with an special needs
apartment complex must be provided. These amenities shall
include:
(a) Community multi-purpose/recreation area and kitchen
(b) Classroom/ training area
(c) Universal design features (such as roll-in showers, a fully
accessible handicap kitchen and emergency pull cord alert system)
(d) Common outdoor seating, picnic tables, fountain, and walking
paths
(e) Central laundry room per floor
3
80A-31
(f) Office area for site management and support services
(g) Access to shuttle vans
8. Landscape
(a) A landscape area not less than twenty five (25) feet wide shall
be maintained along any property line to the extent it abuts a
public street, except approved driveways.
(b) A landscape area not less than ten (10) feet wide shall be
provided along the westerly property line for a distance of one
hundred seventy (170) beginning at northern (Memory Lane)
boundary of project site. A landscape area not less than
twenty (20) feet landscape area shall be provided along the
remaining westerly property line to separate the property
adjacent used for single family residential purposes from
proposed two story multifamily housing use. The landscape
area shall provide:
(c) A landscape area not less than ten (10) feet wide shall be
provided along any property line to the extent that serves to
separate the property adjacent zoned or used from public open
space and the proposed multifamily housing use, except
approved pathways and driveways.
(d) The landscape areas references above (8a, 8b, and 8c) shall
provide:
a. One 24-inch canopy tree per 25 lineal feet. The trees can
be placed in groups in order to achieve a particular design.
b. Six (6) five-gallon size shrubs per 25 lineal feet, either
clustered or liner.
(e) A landscape planter not less than eight and one half (8-1/2) feet
by eighteen (18) feet, including the thickness of the raised curb,
shall be provided for every ten required parking spaces. These
landscape areas shall provide:
a. One fifteen (15) gallon size tree.
b. Eleven (11) five-gallon size shrubs and ground cover or
annual cover to serve as a filler material.
(f) Landscape Plan for this project shall be approved which is
consistent with the concept plans of Attachment B, and include
drought tolerant and California native plant palette. Detailed
landscape plans prepared by a landscape architect shall be
submitted and approved by the City of Santa Ana Planning
4
80A-32
Division prior to issuance of a building permit and installed prior
to issuance of a Certificate of Occupancy.
(g) All trees shall be double-staked at time of installation. Trees
generally regarded as having invasive or with surface roots
shall be installed in root control barriers as specified in the City
of Santa Ana Tree Planting Standard No. 24.
(h) Vehicle parking may not be located within any required
landscape area.
(i) Landscape hedges shall be maintained to not exceed four (4)
feet in height along required front yard on Memory Lane.
Q) Landscaping shall be installed and maintained in accordance
with the approved landscaping plan by the owner(s) and
manager of the development. Plant material will be maintained
and dead material replaced as specified in SAMC Section 41-
609.
SECTION 8 DEVELOPMENT STANDARDS FOR COMMON AREAS
The following general development standards are applicable to all common areas
and improvements:
1. Common Open Space
(a) Usable and active common open space shall be provided at a rate
of two hundred fifty (250) square feet per residential unit, with a
minimum dimension of twenty (20) feet, and be located in a central
area.
(b) Usable and passive common open space shall be provided at a
rate of three hundred fifty (350) square feet per residential unit,
with a minimum dimension of twenty (20) feet.
(c) Common open space shall be ground level and open to the sky
with such amenities appropriate for residents with special needs
including picnic tables, benches, pathways, fountains, and
gardens. Covered shade structures are permitted as part of
common open space areas.
5
80A-33
2. Perimeter Walls/Fences and Entries
A perimeter wall, fence and security gates shall be constructed to secure
the majority of the residential development. Visitor parking and a portion of
the residential parking shall remain open and accessible per Attachment A.
(a) The south and west perimeter of site shall include a solid wall
not exceed six (6) feet in height, as measured from the top of
the curb, or eight (8) feet from the top of the finish grade of the
adjacent property at the location of the wall. All walls shall be
constructed of a decorative block such as slump stone, split-
face block or equivalent and shall have decorative cap.
(b) The majority of the easterly perimeter of the site adjacent to
the Santa Ana River Corridor shall provide a minimum
decorative wrought iron fence a minimum of five and one half
(5-'/2) feet in height, as measure from top of curb, and not
exceed eight (8) feet in height. This fencing is intended to
provide security while allowing screened visual access to and
from the Santa Ana River scenic corridor. Adjacent to the
future park site and in conjunction with the vehicular and
pedestrian security gates to the residential development,
fencing shall integrate decorative pilasters and caps.
(c) The northeast perimeter of the site shall include a wrought
iron fence with intermittent decorative stone pilasters four (4)
feet in height. This low front yard fence is intended to provide
a physical separation between the future park, while allowing
visually accessibility to the future open space area from
Memory Lane and residential development.
(d) To visually define the project entryways, colored paving
materials and concrete shall be used as accent materials at
entry locations including: 1) the driveway entrance to the
development, 2) area surrounding the vehicular security gate,
and 3) the primary pedestrian entrance to the apartment
complex.
3. Signage
The entry monument and all other signage shall comply with the
Santa Ana Municipal Code. A sign permit is required and should be
submitted for review and approval to the Planning Division. Entry
sign to include "Santa Ana" to identified development as a gateway
into the City of Santa Ana.
6
80A-34
4. Lighting
Site lighting shall meet the minimum Citywide Design Guidelines and
Police Department standards. Light fixture and standards shall be
designed to be compatible with the architectural style of the building.
5. Mailboxes and other Appurtenances
(a) Mailboxes shall be located in a common area that is
accessible to residents and the U.S. Postal Service, and
decorative in nature.
(b) All appurtenances shall be located outside the walkway,
sidewalk and parkway, and shall be screened.
(c) All public and private utilities shall be installed in underground
vaults. The City shall approve the location.
SECTION 9 MISCELLANEOUS REGULATIONS
1. Regulations Specifically Included Herein By Reference
All requirements, limitations, restrictions and waivers encompassed
in Chapter 41, Article III, Division 24, of the Santa Ana Municipal
Code (PRD use district regulations) shall apply to SD- use district,
excepting there from the requirement of an approved conditional use
permit and any other requirements, limitations, restrictions and
waivers which are in conflict with other sections of this ordinance.
~delPoo
7
80A-35
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LAND USE ELEMENT
SANTA ANA GENERAL PLAN
City of Santa Ana
Planning Division
Adopted
February 2, 1998
The following is a chronology of the approved general plan amendments that have been incorporated into this document
since the comprehensive update of the General Plan Land Use Element adopted by Santa Ana City Council February 2,
1998 (GPA 1997-05):
GPA 2008-02 (July 20, 2009), GPA 2007-03 (May 18, 2009), GPA 2004-03 (February 2, 2009), GPA 2008-01 (May 5,
2008), GPA 2007-02 (June 18, 2007), GPA 2007-01 (March 19, 2007), GPA 2006-01 (October 2, 2006), GPA 2005-01
(December 5, 2005), GPA 2005-02 (October 17, 2005), GPA 2004-01 (April 5, 2005, as passed by the voters of Sanfa
Ana), GPA 2004-04 (July 19, 2004), GPA 2004-06 (July 6, 2004), GPA 2003-02 (June 16, 2003), GPA 2003-01 (February
18, 2003), GPA 2002-01 (September 3, 2002), GPA 2002-03 (August 19, 2002), GPA 2001-03 (February 19, 2002), GPA
2001-02 (January 7, 2002), GPA 2000-09 (May 7, 2001), GPA 2000-08 (February 5, 2001), GPA 2000-03 (December 4,
2000), GPA 2000-02 (November 20, 2000), GPA 1999-02 (October 18, 1999), GPA 1999-01 (August 16, 1999), GPA
1998-04 (October 5, 1998), GPA 1998-05 (September 21, 1998), GPA 1998-01 (May 4, 1998).
EXHIBIT B
80A-38
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80A-39
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80A-40
LAND USE ELEMENT
To encourage lot consolidation for optimal site design, the floor area
ratio can be calculated on an area wide basis for contiguous parcels
which are part of a large, multi-structure project.
To qualify for an area wide floor area ratio calculation, a project must
be integrated in design and function, and the owner/developer must
record deed restrictions limiting the project area to the legally allowed
floor area ratio.
Land Use Designations
The Santa Ana Land Use Plan includes 11 land use designations. These
designations indicate the types and intensity of development to be allowed on
the property which they cover. Generally, the designation also reflects the
predominant development character of the area. As is typical in older,
urbanized communities like Santa Ana, there are some areas where existing
development does not completely reflect the land use designation of the Land
Use Plan. Where these occur the properties are deemed legal conforming
and may continue until such time as the property has been vacant for twelve
months or more. Each land use designation and a brief description are
discussed below.
Residential
The Land Use Plan provides for three distinct residential land use
designations. Residential development is also permitted in two other
designations: District Center and Residential/Industrial. The Santa Ana Land
Use Plan includes the following residential land use designations:
• The Low Density Residential (LR-7) designation applies to those areas
of the City which are developed with lower density residential land
uses. The allowable maximum development intensity is 7 units per
acre. Development in this category is characterized primarily by
single-family homes. This designation applies to a large proportion of
the City (6,474.9 ~ acres) representing 47 percent of the City's total
land area.
• The Low-Medium Density Residential (LMR-11) designation applies to
those sections of the City which are developed with residential uses at
permitted densities of up to 11 units per acre. The land area included
in this designation is approximately 433.7 ~ acres. The great majority
of the land designated as Low-Medium Density Residential is located
in the westerly portion of the City, north and south of First
Street. Properties with this designation are typically characterized
by mobile
Revised (July 20. 2009 A9a~-5: 2D08) A-1$ OA-41
LAND USE ELEMENT
home parks, a mixture of duplexes and single family residences, or
small lot subdivisions.
• The Medium Density Residential (MR-15) designation applies to
those sections of the City which are developed with residential
uses at densities of up to 15 units per acre. Development in this
designation is characterized by duplexes, apartments, or a
combination of both. A total of 4x-3:2 427.9 acres is designated as
Medium Density Residential. The designation applies to areas
located in the vicinity of downtown, areas north and south of
MacArthur Boulevard, and in other areas where there are
established multiple-family development projects.
The Residential /Industrial designation permits either residential
development up to 15 units per acre or industrial uses. The
designation applies to the Logan neighborhood, which was
established near the turn of the century. Since the 1930s, this
18.5-acre area has developed with a mixture of residential and
industrial uses.
• The District Center designation permits residential development up
to 90 units per acre when it is a component of a mixed-use,
master planned project. In the Metro East District Center
residential density is based on a maximum 3.0 floor area ratio and
the overlay development standards. This category includes
approximately 4~ 454.7 acres and is described in greater detail
later in this section.
Professional and Administrative Office
The Professional/Administrative office (PAO) designation applies to those
areas where professional and/or administrative offices are predominant, or
where such development is being encouraged. Land included in this
designation is found primarily near the Civic Center, and along the First
Street and Tustin Avenue Corridors in close proximity to freeways. There
are other smaller PAO areas in the City such as along North Broadway and
along portions of east and west Seventeenth Street. A total of ~2't-5
634.5 acres is included in this land use designation. The floor area ratio
intensity standard applicable to this land use designation ranges from 0.5 to
1.0.
The Professional and Administrative Office areas are intended to provide a
unique environment for office development in those areas of the City where
office uses are the predominant land use. The purpose for maintaining and
supporting these areas exclusively for office and office-related uses is to
encourage major employment centers at locations which significantly lessen
the impact to the City's local street system. The First Street/Tustin Avenue
Revised (AAay-5;-2448 July 20. 2009) Q 0 /~ ~~~
LAND USE ELEMENT
office corridor between the Santa Ana (I-5) and Costa Mesa (SR-55)
Freeways serves this purpose. In addition, the orderly, well-maintained quality
of existing development supports a continuation of these areas as functional
office/employment centers.
The Professional and Administrative Office designation includes a range of floor
area ratios to differentiate development intensity and character in relation to
adjacent land uses. The areas with a FAR of 0.5 are not major office centers, but
rather have an established character of lower intensity garden office and
professional service uses. These areas are typically adjacent to low density
residential neighborhoods, or are converted residential office uses. Office
development along East Fourth Street, between Grand Avenue and the Santa Ana
Freeway, is typical of this low-rise office character. The PAO area located adjacent to
the Civic Center contains a range of office development intensity which supports the
City's functional role as the government center of the County.
The types of uses typically located in the PAO district include the following:
• Professional and administrative offices/office parks;
• Service activities such as copy centers, courier services, travel agencies, and
restaurants when such uses are an integral component of a planned office
development; and
• Professional uses such as accountants, attorneys, doctors, engineers, and
insurance brokers.
General Commercial Districts
The General Commercial district (GC) applies to commercial corridors in Santa Ana including those
located along Main Street, Seventeenth Street, Harbor Boulevard, and other major arterial
roadways in the City. The intensity standard applicable to this designation is a floor area ratio of
0.5 -1.0, though most General Commercial districts have a FAR of 0.5. A total of 1,099.8 ~-;'f~4: ~ acres
of land is included in this designation.
General Commercial districts are key components in the economic development of the City.
They provide highly visible and accessible commercial development along the City's arterial
transportation corridors. In addition, General Commercial land uses provide important neighborhood
facilities and services, including shopping, recreation, cultural and entertainment activities,
employment, and education. The districts also provide support facilities and services for industrial
areas including office and retail, restaurants and various other services.
A-19
Revised (July 20, 2009 A4ay-~~009)
80A-43
LAND USE ELEMENT
The General Commercial development standards are based upon the
character and intensity of development, as well as the degree of access and
market demand for these properties. The relationships to adjacent land
uses, are also considered. Uses typically located in this district are:
• Business and professional offices;
• Retail and service establishments;
• Recreational, cultural, and entertainment uses; and
• Vocational schools.
General Commercial Districts have a floor area ratio of 0.5 with the
exception of the Mid-town area which has an floor area ratio of 1.0.
District Centers
The District Center (DC) land use designation includes the major activity
areas in the City. Five areas of the City, totaling 46-7 454.7 acres, are
designated as District Center. The intensity standard for the District Center
designation ranges from a floor ratio of 1.0 to 3.0.
District Centers are designed to serve as anchors to the City's commercial
corridors, and to accommodate major development activity. District Centers
are to be developed with an urban character that includes a mixture of high-
rise office, commercial, and residential uses which provide shopping,
business, cultural, education, recreation, entertainment, and housing
opportunities. Residential developments within most District Centers are
allowed at a density of up to 90 units per acre when developed as an
integral component of a master planned, mixed-use project with the
exception of the One Broadway Plaza District Center. Metro East District
Center is unique in that residential density is based on a combination of floor
area ratio and zoning overlay standards. Some District Centers serve as
major retail and employment centers locally and regionally, and should
include development which promotes the City as a regional activity center
while creating an environment conducive to business on a regional scale.
District Centers in Santa Ana include the following:
• The Main Place District Center includes a regional shopping
center and office complex. Additional high intensity mixed-use
development is programmed for this district.
Revised (March ~9~-2007 July 20. 2009)
8 ®~-44
LAND USE ELEMENT
Industrial
The Industrial designation applies to those areas developed with
manufacturing and industrial uses. The designation applies to areas which
are predominantly industrial in character, and includes those industrial
districts in the southwestern, south central and southeastern sections of the
City. A total of 2,278.1 ~;-28:9 acres of land in the City is designated as
Industrial. The maximum floor area ratio for this designation is 0.45.
The Industrial districts of the City are vital to its economic health. These
areas provide employment opportunities for local residents, and generate
municipal revenues for continued economic development. As one of the
County's oldest cities, Santa Ana has long been an industrial center for the
region. The City's goal is to maintain this strong industrial base by setting
land use policies which preclude the intrusion of less intensive commercial or
residential uses. Typical uses found in this district include the following:
• Light and heavy product manufacturing and assembly; and
• Commercial uses which are ancillary to industrial uses in the district.
Institutional
The Institutional designation includes the Civic Center, other governmental
facilities, City facilities and public institutions such as schools, etc. Only
public properties of approximately five acres or more are designated as
Institutional. The maximum applicable floor area ratio standard for this
designation is 0.5. The 0.5 FAR is used as a guideline since most
development in this designation are State, federal, and local governmental
facilities that are not subject to local development regulations. A total of
812.6 acres of land is included in this designation.
Open Space
The Open Space designation is applied to parks, water channels,
cemeteries and other open space uses. A total of 1,015.9 4$15 acres are
included in this land use designation. Of this total, 375 acres of public park
land is included in this land use designation.
Revised (July 20. 2009 May--'l~;-~Q09) Q 230A_~~
LAND USE ELEMENT
Table A-4 indicates the development possible under the build-out of the
Land Use Plan. The build-out for residential land uses considered two
scenarios. Effective build-out for residential development is calculated by
adding the 3~~ 8,758 units possible in the areas designated as District
Center to the existing 74,588 units presently found in the City. Theoretical
build-out for residential development considered the development possible
if all of the areas designated as residential were developed according to the
permitted Land Use Plan intensities. Since the Land Use Element does
not contemplate the elimination of existing housing in the City, the effective
build-out figure represents a more realistic estimate of future residential
development.
As indicated in Table A-4, four of the non-residential land use designations
have a range in FAR intensities. For the non-residential land use
designations, effective build-out considered the development possible under
the lower range of FAR intensities while theoretical build-out considered the
upper FAR range. Typically, parking and landscaping requirements will
result in significantly less floor area for commercial and industrial
developments than that which is permitted under the General Plan.
As indicated in Table A-4, between 6;498 65,410 to ~~-,-~ 83,346
housing units are allowed by the Land Use Plan. The additional units which
presently exist in the City beyond the maximum number permitted under the
theoretical build-out scenario are a reflection of the higher density
multiple-family developments constructed in the 1970's and 1980's.
However, the purpose of the Land Use Plan as it applies to the residential
areas is to preserve and maintain the stability of existing neighborhoods,
regardless of the character of development. The intent of the Plan is not to
create any displacement, nor decrease existing development densities.
Rather, it is to ensure a safe, healthy, and livable environment for City
residents. Existing residential development entitlements are protected
through this Land Use Element, applicable Zoning regulations, and
sections of the City code pertaining to legal nonconforming uses.
The Land Use Element's implementation may result in an increase in the
amount of commercial, office, and industrial development in the City. As
indicated in Table A-4 up to ~~,^''2,~''~ 52,288,553 square feet of
commercial and office development, and ~~ ,~Q~ ,~ ~A 44,655,316 square
feet of industrial development are possible under the effective capacity
parameters of Land Use Plan.
Revised (May 18, 2009) ~ ~ 2 _~~
Amended Table A-4
Land Use Plan Build-out Capacities
Intensity/Density Effective Theoretical
Land Use Acres Standards Build-out, Build-out
Mixed Use2 X03-5--as FAR 3.0
98.3 ac
Metro East Residential DC 5,551 d.u.
SubTotal 5,551 d.u.
Metro East Commercial DC 3,245,185 s.f. 3,245,185 s.f.
SubTotal 3,245,185 s.f. 3,245,185 s.f.
Residential
Low Density Residential LR-7 6-4.74-4--a~ 7 d.u./ac 4~~
6,474.9 ac. 45,324 d.u.
Low Medium Density Residential LMR-11 443-1-a~ 11 d.u./ac 4;8~-d-~
433.7 ac. 4,771 d.u.
Medium Density Residential MR-15 ^'~~ 15 d.u./ac ~~ d.u.
427.9 ac. 6,418 d.u.
Residential/Industrial3 R/1-15 9.2 ac. 15 d.u./ac 138 d.u.
District Center4 DC ~-a~ 90 d.u./ac ~,'~~,
35.6 ac. 3,208 d.u.
SubTotal -ate ",4,-r-v2v-~u:~ 59;~--~:~
7,381.4 ac. 83,346 d.u., 59,859 d.u.
Commercial
Professional & Admin. Office PAO 62~-5--a~ FAR 0.5-1.0 4~-a~~,'~~ ~~ m~ inn ~ f
634.5 ac. 13,819,410 s.f. 27,638,820 s.f.
General Commercial GC ~ ~,-,-r4Tao. FAR 0.5-1.0 '^ ''~^ ~" ° f ^R ~~R ~~~ ~ f
1,099.8 ac. 23,953,644 s.f. 47,907,288 s.f.
District Center4 DC "~~ FAR 1.0-2.0 ' ^ n7° ~~' ~ f
320.8 ac. 13,972,306 s.f. 27,944,611 s.f.
One Broadway Plaza District Ctrs OBPDC 4.3 ac. FAR 2.9 543,193 s.f. 543,193 s.f.
SubTotal ~ nay 4 ~,..
~~ r~~ wiz 49R ~.'. . .
~ ,
2,059.4 ac. 52,288,553 s.f. 104,033,912 s.f.
Industrial
Industrial IND ~ ~R~ n~~ FAR 0.45 ^^ ~~n ~n~ ~ f ^^ ~~In ~m ~ c
2,278.1 ac. 44,655,316 s.f. 44,655,316 s.f.
Residential/Industrial3 R/I-15 4~ 9.2 ac. FAR 0.45 180,926 s.f. 180,926 s.f.
SubTotal ~ 90n ~
~a;r dd 5201 4752 c f
.. AA 404 4952 c F
..
2,287.3 ac. 44,836,243 s.f. 44,836,243 s.f.
Other
Institutional5 INS 812.6 ac. FAR 0.2-0.5 7,079,023 s.f. 17,697,557 s.f.
Open Space OS -1 ~0~-asp FAR 0.2 ~ ~'~~T: ~A'~o-o~.T
1,015.9 ac. 8,850,521 s.f. 8,850,521 s.f.
SubTotal a-$3~-1-a~ 4~ n~~ 4 ~ G ~,f ~a ~~n ~~o ~ F
r ~ . .
1,828.5 ac. 15,929,543 s.f. 26,548,078 s.f.
Notes:
,Effective capacity for non-residential development assumes development possible under the lower range of FAR intensity standards with the exception of the Metro East District
Center. Residential effective capacity was calculated by adding the 883 8,758 units possible in the District Center with the existing 74,588 (Census 2000) housing units.
ZThe Metro East District Center allows a range of intensity for mixture of residential and commercial development based on the Metro East Mixed Use Overlay Zone development
standards.
,Land use designation permits both residential and industrial development. Build-out assumed 50% of the land area will be developed as residential and 50% as industrial
development.
,Land use designation permits both residential and commercial development. Build-out assumes 90 % of and area will be developed as commercial and 10 % will be developed as
residential. FAR -floor area ratio, d.u. -dwelling units, s.f. -square feet (of floor area). Acreage shown in table does not include roads in right-of-way.
sEffective capacity assumes FAR of 0.2
stand use designation permits high intensity office development with ancillary retail use.
This table has been revised to correspond with the GIS Land Use Map illustrater~ ~17~2 ~ w
Revised (May--1~-2098 July 20, 2009) VXVX VV~/A,~ '(^~
80A-48
RESOLUTION NO. 2009-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA APPROVING AND ADOPTING THE
MITIGATED NEGATIVE DECLARATION AND MITIGATION
MONITORING PROGRAM (ENVIRONMENTAL REVIEW NO.
2005-42), AMENDING THE GENERAL PLAN OF THE CITY
OF SANTA ANA TO MODIFY THE LAND USE ELEMENT
(GPA NO. 2008-02) AND APPROVING SITE PLAN
REVIEW NO. 2009-02
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. Applicant is requesting approval of the Mitigated Negative Declaration and
Mitigation Monitoring Program, Environmental Review No. 2005-42;
Amendment Application No. 2008-11 rezoning the property from Open
Space (O) to Specific Development No. 83; and adopt a resolution
approving Site Plan Review No. 2009-02 as conditioned for the property
located at 1600 West Memory Lane.
B. On march 9, 2009, the Planning Commission held a duly noticed public
hearing and voted 6:0 (Turner abstained) to recommend that the City
Council:
1. Approve and adopt the Mitigated Negative Declaration and Mitigation
Monitoring Program, Environmental Review No. 2005-42.
2. Adopt an ordinance approving Amendment Application No. 2007-02
and Specific Development No. 83.
3. Adopt a resolution approving General Plan Amendment No. 2008-02.
4. Adopt a resolution approving Site Plan Review No. 2009-02 as
conditioned.
C. The Mitigated Negative Declaration and Mitigation Monitoring Program,
Environmental Review No. 2005-42; Amendment Application No. 2008-11
and Specific Development No. 83; General Plan Amendment No. 2008-02;
and Site Plan Review No. 2009-02 came before the City Council of the
Resolution No. 2009-XXX
Page 1 of 4
80A-49
City of Santa Ana for a public hearing July 20, 2009, and at that time
Council considered all testimony, written and oral.
D. General Plan Amendment No. 2008-02 has been filed with the City of
Santa Ana to modify the Land Use Element to change the property located
at 1600 West Memory Lane from Open Space (OS) to Medium Density
Residential (MR).
E. The Council finds that General Plan Amendment No. 2008-02 is consistent
with the General Plan, including but not limited to its policies and goals of:
Promote the balance of land uses to address basic community
needs. Land Use Element Goal No. 1.0.
2. Promote land uses which enhance the City's economic and fiscal
viability. Land Use Element Goal No. 2.0.
3. Encourage the development of affordable housing. Land Use
Element Policy No. 1.4.
F. The Council finds that the City's general plan is designed, as it must be, to
accommodate a wide range of competing interests -including those of
developers, neighborhoods and homeowners, prospective homebuyers,
environmentalists, current and prospective business owners, jobseekers,
taxpayers, and providers and recipients of all types of city-provided
services -and to present a clear and comprehensive set of principles to
guide development decisions. The City's general plan sets forth these
guiding principles. Once in place, it is the province of this Council to
examine the specifics of a proposed project to determine whether it would
be in harmony with the policies stated in the general plan.
G. The City Council has weighed and balanced the general plan's policies,
both new and old, and has determined that based upon this balancing that
General Plan Amendment No. 2008-02 is consistent with the purpose of
the general plan.
H. Other approvals related to the property at 1600 West Memory Lane also
came before the City Council on July 20, 2009 for public hearing. This
resolution incorporates by reference, as though fully set forth herein, the
ordinance and resolution in support of this resolution and the findings
made herein.
Section 2. The City Council has reviewed and considered the information
contained in the initial study and the mitigated negative declaration and mitigation
monitoring program for Environmental Review No. 2005-42 prepared with respect to this
Project. It is determined that, as required pursuant to the California Environmental Quality
Resolution No. 2009-XXX
Page 2 of 4
80A-50
Act ("CEQA") and the State CEQA Guidelines, a mitigated negative declaration and
mitigation monitoring program adequately addresses the expected environmental impacts
of this Project. On the basis of this review, the City Council finds that there is no evidence
from which it can be fairly argued that the project will have a significant adverse effect on
the environment. The City Council hereby certifies and approves the mitigated negative
declaration and mitigation monitoring program and directs that the Notice of Determination
be prepared and filed with the County Clerk of the County of Orange in the manner
required by law.
Section 3. The City Council hereby approves General Plan Amendment No.
2008-02. The pages changed in the Land Use Element (Exhibit A) are attached hereto
and incorporated herein by this reference as though fully set forth. This decision is
based upon the evidence submitted at the above said hearing, which includes but is not
limited to: the Request for Council Action dated July 20, 2009 and exhibits attached
thereto and the public testimony written and oral, all of which are incorporated herein by
this reference.
Section 4. The City Council hereby approves Site Plan Review No. 2009-02.
Section 5. This resolution shall not be effective unless and until Ordinance No.
NS- becomes effective. If said ordinance is for any reason held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction, or otherwise does
not go into effect for any reason, then this resolution shall be null and void and have no
further force and effect.
Section 6. The City Council expressly reserves the right to modify, amend or
repeal this resolution at any time by adoption of a subsequent resolution.
Section 7. The Clerk of the Council shall attest to and certify the vote adopting
this Resolution.
ADOPTED this day of , 2009.
Miguel A. Pulido
Mayor
Resolution No. 2009-XXX
Page 3 of 4
80A-51
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the
attached Resolution No. 2009-XXX to be the original resolution adopted by the City
Council of the City of Santa Ana on
Date:
Resolution No. 2009-XXX
Page 4 of 4
Clerk of the Council
City of Santa Ana
80A-52
LAND USE ELEMENT
SANTA ANA GENERAL PLAN
City of Santa Ana
Planning Division
Adopted
February 2, 1998
The following is a chronology of the approved general plan amendments that have been incorporated into this document
since the comprehensive update of the General Plan Land Use Element adopted by Santa Ana City Council February 2,
1998 (GPA 1997-05):
GPA 2008-02 (July 20, 2009), GPA 2007-03 (May 18, 2009), GPA 2004-03 (February 2, 2009), GPA 2008-01 (May 5,
2008), GPA 2007-02 (June 18, 2007), GPA 2007-01 (March 19, 2007), GPA 2006-01 (October 2, 2006), GPA 2005-01
(December 5, 2005), GPA 2005-02 (October 17, 2005), GPA 2004-01 (April 5, 2005, as passed by the voters of Santa
Ana), GPA 2004-04 (July 19, 2004), GPA 2004-06 (July 6, 2004), GPA 2003-02 (June 16, 2003), GPA 2003-01 (February
18, 2003), GPA 2002-01 (September 3, 2002), GPA 2002-03 (August 19, 2002), GPA 2001-03 (February 19, 2002), GPA
2001-02 (January 7, 2002), GPA 2000-09 (May 7, 2001), GPA 2000-08 (February 5, 2001), GPA 2000-03 (December 4,
2000), GPA 2000-02 (November 20, 2000), GPA 1999-02 (October 18, 1999), GPA 1999-01 (August 16, 1999), GPA
1998-04 (October 5, 1998), GPA 1998-05 (September 21, 1998), GPA 1998-01 (May 4, 1998).
EXHIBIT A
80A-53
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80A-54
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80A-55
LAND USE ELEMENT
• To encourage lot consolidation for optimal site design, the floor area
ratio can be calculated on an area wide basis for contiguous parcels
which are part of a large, multi-structure project.
To qualify for an area wide floor area ratio calculation, a project must
be integrated in design and function, and the owner/developer must
record deed restrictions limiting the project area to the legally allowed
floor area ratio.
Land Use Designations
The Santa Ana Land Use Plan includes 11 land use designations. These
designations indicate the types and intensity of development to be allowed on
the property which they cover. Generally, the designation also reflects the
predominant development character of the area. As is typical in older,
urbanized communities like Santa Ana, there are some areas where existing
development does not completely reflect the land use designation of the Land
Use Plan. Where these occur the properties are deemed legal conforming
and may continue until such time as the property has been vacant for twelve
months or more. Each land use designation and a brief description are
discussed below.
Residential
The Land Use Plan provides for three distinct residential land use
designations. Residential development is also permitted in two other
designations: District Center and Residential/Industrial. The Santa Ana Land
Use Plan includes the following residential land use designations:
• The Low Density Residential (LR-7) designation applies to those areas
of the City which are developed with lower density residential land
uses. The allowable maximum development intensity is 7 units per
acre. Development in this category is characterized primarily by
single-family homes. This designation applies to a large proportion of
the City (6,474.9 acres) representing 47 percent of the City's total land
area.
• The Low-Medium Density Residential (LMR-11) designation applies to
those sections of the City which are developed with residential uses at
permitted densities of up to 11 units per acre. The land area included
in this designation is approximately 433.7 acres. The great majority
of the land designated as Low-Medium Density Residential is located
in the westerly portion of the City, north and south of First
Street. Properties with this designation are typically characterized
Revised (July 20, 2009) A-17
80A-56
LAND USE ELEMENT
by mobile home parks, a mixture of duplexes and single family
residences, or small lot subdivisions.
• The Medium Density Residential (MR-15) designation applies to
those sections of the City which are developed with residential
uses at densities of up to 15 units per acre. Development in this
designation is characterized by duplexes, apartments, or a
combination of both. A total of 427.9 acres is designated as Medium
Density Residential. The designation applies to areas located in the
vicinity of downtown, areas north and south of MacArthur
Boulevard, and in other areas where there are established multiple-
family development projects.
The Residential /Industrial designation permits either residential
development up to 15 units per acre or industrial uses. The
designation applies to the Logan neighborhood, which was
established near the turn of the century. Since the 1930s, this
18.5-acre area has developed with a mixture of residential and
industrial uses.
• The District Center designation permits residential development up
to 90 units per acre when it is a component of a mixed-use,
master planned project. In the Metro East District Center
residential density is based on a maximum 3.0 floor area ratio and
the overlay development standards. This category includes
approximately 454.7 acres and is described in greater detail later in
this section.
Professional and Administrative Office
The Professional/Administrative office (PAO) designation applies to those
areas where professional and/or administrative offices are predominant, or
where such development is being encouraged. Land included in this
designation is found primarily near the Civic Center, and along the First
Street and Tustin Avenue Corridors in close proximity to freeways. There
are other smaller PAO areas in the City such as along North Broadway and
along portions of east and west Seventeenth Street. A total of 634.5
acres is included in this land use designation. The floor area ratio intensity
standard applicable to this land use designation ranges from 0.5 to 1.0.
The Professional and Administrative Office areas are intended to provide a
unique environment for office development in those areas of the City where
office uses are the predominant land use. The purpose for maintaining and
supporting these areas exclusively for office and office-related uses is to
encourage major employment centers at locations which significantly lessen
the impact to the City's local street system. The First Street/Tustin Avenue
Revised (July 20, 2009)
A-18
80A-57
LAND USE ELEMENT
office corridor between the Santa Ana (I-5) and Costa Mesa (SR-55)
Freeways serves this purpose. In addition, the orderly, well-maintained quality
of existing development supports a continuation of these areas as functional
office/employment centers.
The Professional and Administrative Office designation includes a range of floor
area ratios to differentiate development intensity and character in relation to
adjacent land uses. The areas with a FAR of 0.5 are not major office centers, but
rather have an established character of lower intensity garden office and
professional service uses. These areas are typically adjacent to low density
residential neighborhoods, or are converted residential office uses. Office
development along East Fourth Street, between Grand Avenue and the Santa Ana
Freeway, is typical of this low-rise office character. The PAO area located adjacent to
the Civic Center contains a range of office development intensity which supports the
City's functional role as the government center of the County.
The types of uses typically located in the PAO district include the following:
Professional and administrative offices/office parks;
• Service activities such as copy centers, courier services, travel agencies, and
restaurants when such uses are an integral component of a planned office
development; and
• Professional uses such as accountants, attorneys, doctors, engineers, and
insurance brokers.
General Commercial Districts
The General Commercial district (GC) applies to commercial corridors in Santa Ana including those
located along Main Street, Seventeenth Street, Harbor Boulevard, and other major arterial
roadways in the City. The intensity standard applicable to this designation is a floor area ratio of
0.5 -1.0, though most General Commercial districts have a FAR of 0.5. A total of 1,099.8 acres of land
is included in this designation.
General Commercial districts are key components in the economic development of the City.
They provide highly visible and accessible commercial development along the City's arterial
transportation corridors. In addition, General Commercial land uses provide important neighborhood
facilities and services, including shopping, recreation, cultural and entertainment activities,
employment, and education. The districts also provide support facilities and services for industrial
areas including office and retail, restaurants and various other services.
A-19
Revised (July 20, 2009)
80A-58
LAND USE ELEMENT
The General Commercial development standards are based upon the
character and intensity of development, as well as the degree of access and
market demand for these properties. The relationships to adjacent land
uses, are also considered. Uses typically located in this district are:
• Business and professional offices;
• Retail and service establishments;
• Recreational, cultural, and entertainment uses; and
• Vocational schools.
General Commercial Districts have a floor area ratio of 0.5 with the
exception of the Mid-town area which has a floor area ratio of 1.0.
District Centers
The District Center (DC) land use designation includes the major activity
areas in the City. Five areas of the City, totaling 454.7 acres, are
designated as District Center. The intensity standard for the District Center
designation ranges from a floor ratio of 1.0 to 3.0.
District Centers are designed to serve as anchors to the City's commercial
corridors, and to accommodate major development activity. District Centers
are to be developed with an urban character that includes a mixture of high-
rise office, commercial, and residential uses which provide shopping,
business, cultural, education, recreation, entertainment, and housing
opportunities. Residential developments within most District Centers are
allowed at a density of up to 90 units per acre when developed as an
integral component of a master planned, mixed-use project with the
exception of the One Broadway Plaza District Center. Metro East District
Center is unique in that residential density is based on a combination of floor
area ratio and zoning overlay standards. Some District Centers serve as
major retail and employment centers locally and regionally, and should
include development which promotes the City as a regional activity center
while creating an environment conducive to business on a regional scale.
District Centers in Santa Ana include the following:
• The Main Place District Center includes a regional shopping
center and office complex. Additional high intensity mixed-use
development is programmed for this district.
Revised (July 20, 2009)
A-20
80A-59
LAND USE ELEMENT
Industrial
The Industrial designation applies to those areas developed with
manufacturing and industrial uses. The designation applies to areas which
are predominantly industrial in character, and includes those industrial
districts in the southwestern, south central and southeastern sections of the
City. A total of 2,278.1 acres of land in the City is designated as Industrial.
The maximum floor area ratio for this designation is 0.45.
The Industrial districts of the City are vital to its economic health. These
areas provide employment opportunities for local residents, and generate
municipal revenues for continued economic development. As one of the
County's oldest cities, Santa Ana has long been an industrial center for the
region. The City's goal is to maintain this strong industrial base by setting
land use policies which preclude the intrusion of less intensive commercial or
residential uses. Typical uses found in this district include the following:
• Light and heavy product manufacturing and assembly; and
• Commercial uses which are ancillary to industrial uses in the district.
Institutional
The Institutional designation includes the Civic Center, other governmental
facilities, City facilities and public institutions such as schools, etc. Only
public properties of approximately five acres or more are designated as
Institutional. The maximum applicable floor area ratio standard for this
designation is 0.5. The 0.5 FAR is used as a guideline since most
development in this designation are State, federal, and local governmental
facilities that are not subject to local development regulations. A total of
812.6 acres of land is included in this designation.
Open Space
The Open Space designation is applied to parks, water channels,
cemeteries and other open space uses. A total of 1,015.9 acres are included
in this land use designation. Of this total, 375 acres of public park land is
included in this land use designation.
Revised (July 20, 2oos~ A-23
80A-60
LAND USE ELEMENT
Table A-4 indicates the development possible under the build-out of the
Land Use Plan. The build-out for residential land uses considered two
scenarios. Effective build-out for residential development is calculated by
adding the 8,758 units possible in the areas designated as District Center to
the existing 74,588 units presently found in the City. Theoretical build-out for
residential development considered the development possible if all of the
areas designated as residential were developed according to the permitted
Land Use Plan intensities. Since the Land Use Element does not
contemplate the elimination of existing housing in the City, the effective
build-out figure represents a more realistic estimate of future residential
development.
As indicated in Table A-4, four of the non-residential land use designations
have a range in FAR intensities. For the non-residential land use
designations, effective build-out considered the development possible under
the lower range of FAR intensities while theoretical build-out considered the
upper FAR range. Typically, parking and landscaping requirements will
result in significantly less floor area for commercial and industrial
developments than that which is permitted under the General Plan.
As indicated in Table A-4, between 65,410 to 83,346 housing units are
allowed by the Land Use Plan. The additional units which presently exist in
the City beyond the maximum number permitted under the theoretical build-
out scenario are a reflection of the higher density multiple-family
developments constructed in the 1970's and 1980's. However, the purpose
of the Land Use Plan as it applies to the residential areas is to preserve
and maintain the stability of existing neighborhoods, regardless of the
character of development. The intent of the Plan is not to create any
displacement, nor decrease existing development densities. Rather, it is to
ensure a safe, healthy, and livable environment for City residents. Existing
residential development entitlements are protected through this Land Use
Element, applicable Zoning regulations, and sections of the City code
pertaining to legal nonconforming uses.
The Land Use Element's implementation may result in an increase in the
amount of commercial, office, and industrial development in the City. As
indicated in Table A-4 up to 52,288,553 square feet of commercial and
office development, and 44,655,316 square feet of industrial development
are possible under the effective capacity parameters of Land Use Plan.
Revised (May 18, 2009) A-30
80A-61
Amended Table A-4
Land Use Plan Build-out Capacities
Intensity/Density Effective Theoretical
Land Use Acres Standards Build-out, Build-out
Mixed Usez 98.3 ac FAR 3.0
Metro East Residential DC 5,551 d.u.
SubTotal 5,551 d.u.
Metro East Commercial DC 3.245,185 s.f. 3,245,185 s.f.
SubTotal 3,245,185 s.f. 3,245,185 s.f.
Residential
Low Density Residential LR-7 6,474.9 ac. 7 d.u./ac 45,324 d.u.
Low Medium Density Residential LMR-11 433.7 ac. 11 d.u./ac 4,771 d.u.
Medium Density Residential MR-15 427.9 ac. 15 d.u./ac 6,418 d.u.
Residential/Industrial3 R/1-15 9.2 ac. 15 d.u./ac 138 d.u.
District Centera DC 35.6 ac. 90 d.u./ac 3.208 d.u.
SubTotal 7,381.4 ac. 83,346 d.u.~ 59,859 d.u.
Commercial
Professional & Admin. Office PAO 634.5 ac. FAR 0.5-1.0 13,819,410 s.f. 27,638,820 s.f.
General Commercial GC 1,099.8 ac. FAR 0.5-1.0 23,953,644 s.f. 47,907,288 s.f.
District Centera DC 320.8 ac. FAR 1.0-2.0 13,972,306 s.f. 27,944,611 s.f.
One Broadway Plaza District Ctrfi OBPDC 4.3 ac. FAR 2.9 543.193 s.f. 543,193 s.f.
SubTotal 2,059.4 ac. 52,288,553 s.f. 104,033,912 s.f.
Industrial
Industrial IND 2,278.1 ac. FAR 0.45 44,655,316 s.f. 44,655,316 s.f.
Residential/Industrial3 R/I-15 9.2 ac. FAR 0.45 180,926 s.f. 180,926 s.f.
SubTotal 2,287.3 ac. 44,836,243 s.f. 44,836,243 s.f.
Other
Institutional5 INS 812.6 ac. FAR 0.2-0.5 7,079,023 s.f. 17,697,557 s.f.
Open Space OS 1,015.9 ac. FAR 0.2 8,850,521 s.f. 8,850,521 s.f.
SubTotal 1,828.5 ac. 15,929,543 s.f. 26,548,078 s.f.
Notes:
Effective capacity for non-residential development assumes development possible under the lower range of FAR intensity
standards with the exception of the Metro East District Center. Residential effective capacity was calculated by adding the 8,758
units possible in the District Center with the existing 74,588 (Census 2000) housing units.
2The Metro East District Center allows a range of intensity for mixture of residential and commercial development based on the
Metro East Mixed Use Overlay Zone development standards.
stand use designation permits both residential and industrial development. Build-out assumed 50% of the land area will be
developed as residential and 50% as industrial development.
aLand use designation permits both residential and commercial development. Build-out assumes 90% of an area will be
developed as commercial and 10% will be developed as residential. FAR -floor area ratio, d.u. -dwelling units, s.f. -square
feet (of floor area). Acreage shown in table does not include roads in right-of-way.
sEffective capacity assumes FAR of 0.2
stand use designation permits high intensity office development with ancillary retail use.
This table has been revised fo correspond with the G/S Land Use Map illustrated in Exhibif 2.
Revised July 20, 2009)
803162
ORDINANCE NO. NS-XXXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA ADOPTING SPECIFIC DEVELOPMENT NO. 83
(SD-83) AND REZONING THE PROPERTY LOCATED AT
1600 WEST MEMORY LANE FROM OPEN SPACE (O) TO
SPECIFIC DEVELOPMENT NO. 83 (SD-83) (AA NO.
2008-11)
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana does hereby find, determine
and declare as follows:
A. Applicant is requesting approval of the Mitigated Negative Declaration and
Mitigation Monitoring Program, Environmental Review No. 2005-42;
Amendment Application No. 2008-11 rezoning the property from Open
Space (O) to Specific Development No. 83; and adopt a resolution
approving Site Plan Review No. 2009-02 as conditioned for the property
located at 1600 West Memory Lane.
B. On March 9, 2009, the Planning Commission held a duly noticed public
hearing and voted 6:0 (Turner abstained) to recommend that the City
Council:
1. Approve and adopt the Mitigated Negative Declaration and Mitigation
Monitoring Program, Environmental Review No. 2005-42.
2. Adopt an ordinance approving Amendment Application No. 2007-02
and Specific Development No. 83.
3. Adopt a resolution approving General Plan Amendment No. 2008-02.
4. Adopt a resolution approving Site Plan Review No. 2009-02 as
conditioned.
C. The Mitigated Negative Declaration and Mitigation Monitoring Program,
Environmental Review No. 2005-42; Amendment Application No. 2008-11
and Specific Development No. 83; General Plan Amendment No. 2008-02;
and Site Plan Review No. 2009-02 came before the City Council of the
City of Santa Ana for a public hearing July 20, 2009, and at that time
considered all testimony, written and oral.
D. Amendment Application No. 2008-11 has been filed with the City of Santa
80A-63
Ana to adopt Specific Development No. 83 (SD-83) and to rezone the
property located the property located at 1600 West Memory Lane from Open
Space (o) to Specific Development No. 83 (SD-83).
E. SD-83 would allow a 41 unit affordable housing multi-family project. One
unit will be the manager's unit and the other 40 will be for special needs
tenants.
F. The City Council has weighed and balanced the general plan's policies and
has determined that based upon this balancing that the project at 1600 West
Memory Lane is consistent with the purpose of the general plan.
G. The City Council also adopts as findings all facts presented in the Requests
for Council Action dated July 20, 2009 accompanying this matter. For these
reasons, and each of them, Amendment Application No. 2008-11 is hereby
found and determined to be consistent with the General Plan of the City of
Santa Ana and otherwise justified by the public necessity, convenience, and
general welfare.
H. The resolution approving and adopting the amended Mitigated Negative
Declaration and Mitigation Monitoring Program for Environmental Review
No. 2005-42 which came before the City Council on July 20, 2009. This
ordinance incorporates by reference, as though fully set forth herein, that
resolution and mitigated negative declaration and mitigation monitoring
program.
Section 2. The real property located at 1600 West Memory Lane is hereby
reclassified from Open Space (O) to Specific Development No. 83 (SD-83). Amended
Sectional District Map number 2-5-10 showing the above described change in use district
designation, is hereby approved and attached hereto as Exhibit "A" and incorporated by
this reference as though fully set forth herein.
Section 3. Specific Development No. 83 (SD-83) as set forth in Exhibit "B",
attached hereto and incorporated as though fully set forth herein, is approved and
adopted in its entirety.
Section 4. If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Santa Ana hereby declares that
it would have adopted this ordinance and each section, subsection, sentence, clause,
phrase or portion thereof irrespective of the fact that any one or more sections,
subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
80A-64
ADOPTED this day of , 2009.
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES:
NOES:
ABSTAIN:
NOT PRESENT
Councilmembers
Councilmembers
Councilmembers
Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the
attached Ordinance No. NS- to be the original ordinance adopted by the City
Council of the City of Santa Ana on ,and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
80A-65
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SECTIONAL DISTRICT MAP 2-5-10 scALE w reel
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ADOPTED BVTHE SANTA ANACITY COUNCIL, JULY 20, 1959 BY ORDINANCE NS-381
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GENERAL AGRICULTURAL
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SOUTH MAIN STREET COMMERCIAL DISTRICT
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PLANNED DEVELOPMENT 60- MINIMUM ENONTAGE
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REGGI.UiION NO. T<-1 W, UAI FD t1-IB-7d, I
C2 GENERAL COMMERCIAL M2 HEAVY INDUSTRIAL R3 MULTIPLE-FAMILY RESIDENCE NERERV arrESTTRar Tti,is MAPisAmuE
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CENTRAL BUSINESS
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SUBURBAN APARTMENT LOPY OP THE ORIGINAL SELTIONA'~-DISTRICT
MAP NO.13-10.
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Certilicala Dale May 9, 2001_. __
RES. ~ A 0.1 ANX. NO.
(JRO. l RES. NO.
AUOPTEU PATE
PREPARED BY THE PLANNING DIVISION - CITY OF SANTA ANA, CALIFORNIA
Exhibit A
80A-66
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Vista del Rio Specific Development No. 83 (SD-83)
TABLE OF CONTENTS
PAG E
SECTION 1. Applicability of Ordinance .................................................................. 1
SECTION 2. Purpose .......................................................................................... 1
SECTION 3. Objectives ....................................................................................... 1
SECTION 4. Building Density ............................................................................... 1
SECTION 5. Permitted Uses ................................................................................ 2
SECTION 6. Conditionally Permitted Uses ............................................................... 2
SECTION 7. Development Standards for Multiple Family Dwellings .............................. 2
1. Residential Unit Size ................................................................. 2
2. Building Height ........................................................................ 2
3. Building Setbacks ................................................................... 2
4. Parking ................................................................................. 3
5. Storage ................................................................................. 3
6. Private Open Space ................................................................. 3
7. Amenities .............................................................................. 3
8. Landscape ............................................................................. 4
SECTION 8. Development Standards for Common Areas ........................................... 5
1. Common Open Space .............................................................. 5
2. Entry and Perimeter walls ......................................................... 6
3. Signage ................................................................................6
4. Lighting .................................................................................7
5. Mailboxes and other Appurtenances ........................................... 7
SECTION 9. Miscellaneous Regulations ................................................................. 7
1. Regulations Specifically Included Herein by Reference .................... 7
ATTACHMENTS
A. Site Plan ..................................................................................
8
B. Landscape Plan ........................................................................ 9
EXHIBIT B
80A-67
Vista del Rio Specific Development (SD-83)
SECTION 1 APPLICABILITY OF ORDINANCE
The Specific Development No. 83 (SD-83) zoning district, as authorized by Chapter
41, Article III, Division 26, of the Santa Ana Municipal Code, is specifically subject
to the regulations contained in this ordinance for the express purpose of
establishing use district regulations. All other applicable chapters, articles and
sections of the Santa Ana Municipal Code shall apply unless expressly waived or
superseded by this ordinance. Use district regulations established in Chapter 41,
Article III, of the Santa Ana Municipal Code for zoning districts other than the SD
zoning district may be incorporated herein by reference. The boundaries of
Riverview Villas Specific Development District shall be defined pursuant to Exhibit
A (attached hereto and incorporated as though fully set forth herein).
SECTION 2 PURPOSE
The Specific Development No. 83 (SD-83), consisting of standards and regulations,
is hereby established for the express purpose of protecting the health, safety, and
general welfare of the City by encouraging the use of innovative planning concepts
and principles, promoting and enhancing the value of properties, and encouraging
orderly development for residential development serving persons of special need.
SECTION 3 OBJECTIVES
The objectives of SD-83 include the provision of the following:
• Permanent rental housing to people with developmental and physical
disabilities earning less that 30-60% of Area Median Income for Orange
County.
• A handicap accessible, affordable apartment community
• A visually harmonious development as viewed both internally and externally,
particularly from adjacent Santa Ana scenic corridor and bikeway.
• A development that is consistent with the Medium Density designation of the
General Plan and that implements the spirit and intend of the policies of the
General Plan
SECTION 4 BUILDING DENSITY
The maximum authorized residential density for the Vista del Rio is 15 dwelling
units per acre.
80A-68
SECTION 5 PERMITTED USES
The permitted land uses shall be as follows:
1. Multiple-family apartments for persons of special needs (physical or
developmentally challenged).
2. Accessory structure and uses determined to be incidental and
necessary to the primary use, subject to the approval of the Planning
Manager.
3. Childcare facilities providing care to not more than eight (8) children.
SECTION 6 CONDITIONALLY PERMITTED USES
The following uses are permitted upon the approval of a conditional use permit in
accordance with the Santa Ana Municipal Code:
1. Churches and accessory church buildings and functions.
2. Neighborhood and community service centers.
3. Care homes.
4. Accessory structure more than 15 feet in height or more than one
story.
SECTION 7 DEVELOPMENT STANDARDS FOR MULTIPLE FAMILY DWELLINGS
The following general development standards are applicable to multiple family
dwellings and consistent with Site Plan (Attachment A):
1. Residential Unit Size
The minimum unit size for the project shall be a minimum of:
Studio units -543 square feet
One-bedroom units - 627 square feet
Two-bedroom units - 897 square feet
2. Building Height
The height limit for main buildings and related structures is 35 feet
and for accessory buildings and other structures is 15 feet.
Accessory structures more than 15 feet in height will require a
Conditional Use Permit.
3. Building Setbacks
(a) Front: A minimum twenty-five (25) feet front yard building setback shall
be provided.
2
80A-69
(b) Easterly Side: A minimum forty-two (42) feet side yard building setback
shall be provided.
(c) Westerly Side: A minimum ten (10) feet side yard building setback shall
be provided.
(d) Rear: A minimum fifteen (15) feet side yard building setback shall be
provided.
4. Parking
Parking for multifamily apartment developments serving persons of special
needs (physical or developmentally challenged) residential units shall
provide a minimum of one (1) parking space per unit. In addition, guest
parking spaces should be provided in an amount not less than 24 percent
of the minimum required spaces. There shall be a minimum of one
resident drop-off and pick-up parking space located at the main building
entrance; minimum dimension to be ten (10) feet wide by eighteen (18) feet
in length.
Covered parking structures are to be compatible with architectural design
of the main residential building.
5. Storage
A separate, enclosed lockable storage space shall be reserved for
each apartment unit. This personal resident storage space shall be
at least two hundred fifty (250) cubic feet in size and shall have
minimum dimensions for four feet by eight (8) feet.
6. Private Open Space
Each residential unit shall provide private open space of no less than
ninety (90) square feet and shall have a minimum dimension of six
(6) feet in each direction. Refer to Section 8, page 5, for common
open space requirements.
7. Amenities
Project amenities that are consistent with an special needs
apartment complex must be provided. These amenities shall
include:
(a) Community multi-purpose/recreation area and kitchen
(b) Classroom/ training area
(c) Universal design features (such as roll-in showers, a fully
accessible handicap kitchen and emergency pull cord alert system)
(d) Common outdoor seating, picnic tables, fountain, and walking
paths
(e) Central laundry room per floor
3
80A-70
(f) Office area for site management and support services
(g) Access to shuttle vans
8. Landscape
(a) A landscape area not less than twenty five (25) feet wide shall
be maintained along any property line to the extent it abuts a
public street, except approved driveways.
(b) A landscape area not less than ten (10) feet wide shall be
provided along the westerly property line for a distance of one
hundred seventy (170) beginning at northern (Memory Lane)
boundary of project site. A landscape area not less than
twenty (20) feet landscape area shall be provided along the
remaining westerly property line to separate the property
adjacent used for single family residential purposes from
proposed two story multifamily housing use. The landscape
area shall provide:
(c) A landscape area not less than ten (10) feet wide shall be
provided along any property line to the extent that serves to
separate the property adjacent zoned or used from public open
space and the proposed multifamily housing use, except
approved pathways and driveways.
(d) The landscape areas references above (8a, 8b, and 8c) shall
provide:
a. One 24-inch canopy tree per 25 lineal feet. The trees can
be placed in groups in order to achieve a particular design.
b. Six (6) five-gallon size shrubs per 25 lineal feet, either
clustered or liner.
(e) A landscape planter not less than eight and one half (8-1/2) feet
by eighteen (18) feet, including the thickness of the raised curb,
shall be provided for every ten required parking spaces. These
landscape areas shall provide:
a. One fifteen (15) gallon size tree.
b. Eleven (11) five-gallon size shrubs and ground cover or
annual cover to serve as a filler material.
(f) Landscape Plan for this project shall be approved which is
consistent with the concept plans of Attachment B, and include
drought tolerant and California native plant palette. Detailed
landscape plans prepared by a landscape architect shall be
submitted and approved by the City of Santa Ana Planning
4
80A-71
Division prior to issuance of a building permit and installed prior
to issuance of a Certificate of Occupancy.
(g) All trees shall be double-staked at time of installation. Trees
generally regarded as having invasive or with surface roots
shall be installed in root control barriers as specified in the City
of Santa Ana Tree Planting Standard No. 24.
(h) Vehicle parking may not be located within any required
landscape area.
(i) Landscape hedges shall be maintained to not exceed four (4)
feet in height along required front yard on Memory Lane.
(j) Landscaping shall be installed and maintained in accordance
with the approved landscaping plan by the owner(s) and
manager of the development. Plant material will be maintained
and dead material replaced as specified in SAMC Section 41-
609.
SECTION 8 DEVELOPMENT STANDARDS FOR COMMON AREAS
The following general development standards are applicable to all common areas
and improvements:
1. Common Open Space
(a) Usable and active common open space shall be provided at a rate
of two hundred fifty (250) square feet per residential unit, with a
minimum dimension of twenty (20) feet, and be located in a central
area.
(b) Usable and passive common open space shall be provided at a
rate of three hundred fifty (350) square feet per residential unit,
with a minimum dimension of twenty (20) feet.
(c) Common open space shall be ground level and open to the sky
with such amenities appropriate for residents with special needs
including picnic tables, benches, pathways, fountains, and
gardens. Covered shade structures are permitted as part of
common open space areas.
5
80A-72
2. Perimeter Walls/Fences and Entries
A perimeter wall, fence and security gates shall be constructed to secure
the majority of the residential development. Visitor parking and a portion of
the residential parking shall remain open and accessible per Attachment A.
(a) The south and west perimeter of site shall include a solid wall
not exceed six (6) feet in height, as measured from the top of
the curb, or eight (8) feet from the top of the finish grade of the
adjacent property at the location of the wall. All walls shall be
constructed of a decorative block such as slump stone, split-
face block or equivalent and shall have decorative cap.
(b) The majority of the easterly perimeter of the site adjacent to
the Santa Ana River Corridor shall provide a minimum
decorative wrought iron fence a minimum of five and one half
(5-'/2) feet in height, as measure from top of curb, and not
exceed eight (8) feet in height. This fencing is intended to
provide security while allowing screened visual access to and
from the Santa Ana River scenic corridor. Adjacent to the
future park site and in conjunction with the vehicular and
pedestrian security gates to the residential development,
fencing shall integrate decorative pilasters and caps.
(c) The northeast perimeter of the site shall include a wrought
iron fence with intermittent decorative stone pilasters four (4)
feet in height. This low front yard fence is intended to provide
a physical separation between the future park, while allowing
visually accessibility to the future open space area from
Memory Lane and residential development.
(d) To visually define the project entryways, colored paving
materials and concrete shall be used as accent materials at
entry locations including: 1) the driveway entrance to the
development, 2) area surrounding the vehicular security gate,
and 3) the primary pedestrian entrance to the apartment
complex.
3. Signage
The entry monument and all other signage shall comply with the
Santa Ana Municipal Code. A sign permit is required and should be
submitted for review and approval to the Planning Division. Entry
sign to include "Santa Ana" to identified development as a gateway
into the City of Santa Ana.
80A-73
4. Li htin
Site lighting shall meet the minimum Citywide Design Guidelines and
Police Department standards. Light fixture and standards shall be
designed to be compatible with the architectural style of the building.
5. Mailboxes and other Appurtenances
(a) Mailboxes shall be located in a common area that is
accessible to residents and the U.S. Postal Service, and
decorative in nature.
(b) All appurtenances shall be located outside the walkway,
sidewalk and parkway, and shall be screened.
(c) All public and private utilities shall be installed in underground
vaults. The City shall approve the location.
SECTION 9 MISCELLANEOUS REGULATIONS
Regulations Specifically Included Herein By Reference
All requirements, limitations, restrictions and waivers encompassed
in Chapter 41, Article III, Division 24, of the Santa Ana Municipal
Code (PRD use district regulations) shall apply to SD- use district,
excepting there from the requirement of an approved conditional use
permit and any other requirements, limitations, restrictions and
waivers which are in conflict with other sections of this ordinance.
Mgm~PlarncanmlSD83VistadelRio
7
80A-74
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FREE RECORDING REQUESTED PURSUANT
TO GOVERNMENT CODE SECTION 6103 & 27383
When Recorded Mail to:
City of Santa Ana
Community Redevelopment Agency
20 Civic Center Plaza (M-37)
P.O. Box 1988
Santa Ana, California 92702
Attention: Executive Director
LOAN AGREEMENT
by and between the
CITY OF SANTA ANA,
And
VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership
Dated: July 20, 2009
80A-77
LOAN AGREEMENT
HOME PROGRAM/TAX INCREMENT
THIS LOAN AGREEMENT (the "Agreement") dated, for identification purposes only, as of
July 6, 2009, is made and entered into by and between the CITY OF SANTA ANA, a charter
city and municipal corporation (referred to herein separately as the "City") and VISTA DEL RIO
HOUSING PARTNERS, L.P., a California limited partnership ("Vista Del Rio"), with
reference to the following:
RECITALS:
A. City has received an allocation of funds from the United States Department of
Housing and Urban Development ("HUD") under the HOME Investment Partnership Program
(the "HOME Program") (42 U.S.C. § 12701, et seq.,) to be used in accordance with applicable
statutory requirements and regulations (the "HOME Regulations") (24 CFR Part 92);
B. A portion of City's allocation of HOME Program funds is reserved for Community
Housing Development Organizations (the "HOME Program funds"), and Vista Del Rio has
qualified and is in good standing as a Community Housing Development Organization;
C. Among the purposes of the HOME Program are (1) to expand the supply of
decent, safe, sanitary, and affordable housing, with primary attention to rental housing, for very
low-income and low-income Americans; and (2) to provide participating jurisdictions, on a
coordinated basis, with the various forms of federal housing assistance, including capital
investment, mortgage insurance, rental assistance, and other federal assistance, needed (a) to
promote the development of partnerships among the federal government, states and units of
general local government, private industry, and nonprofit organizations able to utilize all
available resources to provide more of such housing, and (b) to expand the capacity of nonprofit
community housing development organizations to develop and manage decent, safe, sanitary and
affordable housing;
D. The Community Redevelopment Agency of the City of Santa Ana (the "Agency")
is authorized by the Community Redevelopment law of the State of California (Health and Safety
Code sections 33000 et seq.) to expend funds to increase the supply of very low and low-income
housing available at affordable housing costs.
E. In part to further this goal, the Agency has created the Merged Project Area,
within the City (the "Project Area"), and adopted a Redevelopment Plan for the development of
the Project Area.
F. Vista Del Rio has simultaneously entered into an agreement (the "Disposition and
Development Agreement") with the Agency to acquire and develop approximately 3.2 acres,
within the Project Area, located generally at 1600 Memory Lane in the City of Santa Ana, within
the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the
2
80A-78
"Property"). The loans referenced herein shall assist in the acquisition and Construction of said
Property that is improved with a multifamily residential housing development.
G. In furtherance of the HOME Program and the Redevelopment Plan and
redevelopment purposes, Vista Del Rio has applied to City for a loan with which to:
1. provide deeper affordability for a longer term, as well as acquire and develop
the Property, and
2. thereafter to maintain, operate and professionally manage the Property
as decent, safe, sanitary and affordable rental housing.
H. City, on certain terms and conditions, desires to make such loan to Vista Del Rio in
order to make possible the acquisition and Construction of the Property, thereby eliminating blight
while expanding the supply of decent, safe, sanitary and affordable housing.
I. If there is any discrepancy between Federal and State guidelines with regard to any
of the terms and conditions contained herein, the more stringent shall apply.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, City and Vista Del Rio agree as follows:
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms. All capitalized terms used herein, including, without
limitation, in the Recitals above and in all other Project Documents, unless otherwise
expressly defined, are defined where first used in this Agreement and/or as set forth in this
Article 1.
"Agency" means the Community Redevelopment Agency of the City of Santa
Ana, a public body, corporate and politic, exercising governmental functions and powers, and
organized and existing under the Community Redevelopment Law of the State of California (Health
and Safety Code Section 33000 et seg.) The principal office of the Agency is located at 20
Civic Center Plaza, Santa Ana, California, 92702. Said term may be referred to collectively with
"the City".
"Affordable Housing" means housing operated in accordance with the
requirements of 24 CFR 92.252 and the rents governed by California Health and Safety Code
Section 50052.5.
"Affordability Restrictions on Transfer of Property" means that
certain document affecting real property benefiting both the Agency and City, attached hereto as
Exhibit B.
"Affordable Rent" means the monthly rents that are set forth in more detail in
Section 7 of this Agreement.
80A-79
"Building Permit" means the building permit(s) issued by City and
required for the Construction.
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs.
"Calendar Year" means each consecutive twelve (12) month period from
January 1 to December 30.
"Certificate of Completion" has the meaning set forth in Article 17.
"City" means the City of Santa Ana, California, a charter city and
municipal corporation.
"City/HOME Loan" means the loan with principal amount of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) to be made to Vista Del Rio by City from HOME funds
pursuant to Article 5 of this Agreement.
"City/HOME Loan Deed of Trust" means the deed of trust encumbering
the Property, in the form attached hereto as Exhibit C, to be executed by Vista Del Rio pursuant
to Section S.B.2 in order to secure the Loan Note.
"City/HOME Loan Note" means that certain promissory note in the
original principal amount of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) in the
form attached hereto as Exhibit D, and to be executed by Vista Del Rio in favor of City to
evidence the obligation of Vista Del Rio to repay the City/HOME Loan.
"Close of Escrow" shall mean the date upon which the City/HOME Loan
Deed of Trust is recorded in the Official Records of the County.
"Closing Statement" means the final statement of Vista Del Rio's
Escrow account for the purchase and sale of the Property pursuant to the Purchase Contract.
"Construction" means the demolition and construction activities required to
construct, until Certificate of Completion, the 41 residential unit, multi-family project specified
in City Site Plan Review No. 2009-02.
"County" means the County of Orange, California.
"Escrow" means Escrow No.
"Escrow Holder" means First American Title Company in Santa Ana, California
4
80A-80
"Event of Default" has the meaning set forth in Section 20.1.
"Executive Director" means the Deputy City Manager for
Development Services or designee.
"Extremely Low Income" means an adjusted income which does not exceed
thirty percent (30%) of the area median income for the Orange County, California PMSA,
adjusted for household size, as published by HUD.
"General Partner(s)" means the General Partners of Vista Del Rio.
"Governmental Authority" means any governmental or quasi
governmental agency, board, bureau, commission, department, court, administrative tribunal or
other instrumentality or authority, and any public utility.
"Hazardous Materials" means flammable materials, explosives,
radioactive materials, hazardous wastes, toxic substances and similar substances and materials,
including all substances and materials defined as hazardous or toxic wastes, substances or
materials under any applicable law, including without limitation the Resource Conservation and
Recovery Act, 42 U.S.C. §§ 6901 et sue., and the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended.
"HOME Compliance Period" means fifteen (15) years from the issuance of the
Certificate of Compliance or until payment of principal and all accrued interest on the HOME
Loan, whichever comes last.
"HOME Program" has the meaning set forth in Recital "A" above
"HOME Regulations" has the meaning set forth in Recital "A" above.
"HUD" means the United States Department of Housing and Urban Development
and any successors or assigns thereof.
"Improvements" means all improvements and fixtures now and hereafter
comprising any portion of the Property, including, without limitation, landscaping, trees and
plant materials; and offsite improvements (including, without limitation, streets, curbs, storm
drains, and adjacent street lighting).
"Indebtedness" of a person means (a) all indebtedness for borrowed
money, (b) notes payable and drafts accepted representing extensions of credit, whether or not
representing obligations for borrowed money, (c) any obligation for the purchase of property or
services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or
(ii) evidenced by a note or similar instrument, and (d) all recourse and all non-recourse
indebtedness secured by any Lien on any property or asset of such person (whether or not
assumed by such person).
5
80A-81
"Indemnitees" has the meaning set forth in Section 14.5.
"Laws" means all statutes, laws, ordinances, regulations, orders, writs,
judgments, injunctions, decrees or awards of the United States or any state, county, municipality
or other Governmental Authority.
"Lien" means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention agreement, any
lease in the nature thereof, and any agreement to give any lien or security interest).
"Limited Partner" means the Limited Partners of Vista Del Rio, and their
successors and assigns.
"Loan Documents" means, collectively, this Agreement, the City/HOME
Loan Note, the City/HOME Deed of Trust, the Agency Loan Note, the Agency Deed of Trust,
the Affordability Restrictions on Transfer of Property, and any other agreement, document, or
instrument that the City or Agency requires in connection with the execution of this Agreement
or from time to time to effectuate the purposes of this Agreement.
"Median Income for the Area" means the median income for the Orange
County, California PMSA as most recently determined by HUD. Also may be referred to
interchangeably in the Loan Documents as "Area Median Income" or "AMI".
"Partnership Agreement" means the Agreement of Vista Del Rio Housing
Partners, L.P., dated on or about August 1, 2008.
"Permitted Encumbrances for the Affordable Housing Restrictions"
means, collectively, the Senior Loan Deed of Trust and all other title exceptions and
limitations with respect to the Property hereafter approved by the Executive Director in
writing.
"Permitted Encumbrances for the Agency Loan Deed of Trust and
the City Loan Deed of Trust" means, collectively, the Senior Loan Deed of Trust and all other
title exceptions and limitations with respect to the Property hereafter approved by the Executive
Director in writing.
"Project" means the acquisition and Construction of the Property in accordance
with the Scope of Work by Vista Del Rio pursuant to this Agreement.
"Project Budget" means the line-item budget for the Project
attached hereto as Exhibit E, as modified from time to time in accordance with this Agreement.
"Project Costs" means all costs of any nature incurred in connection with
the Project in accordance with generally accepted accounting principles.
6
80A-82
"Property" means the approximately 2.74 acres, within the Project Area, located
generally at 1600 Memory Lane in the City of Santa Ana, within the City of Santa Ana,
California, and is more fully described in the "Legal Description" of the Property attached hereto as
Exhibit A and incorporated herein by reference.
"Section 504" means section 504 of the federal Rehabilitation Act of 1973, codified
at 29 U.S.C. § 701 et seq., and its implementing regulations located at 24 CFR Part 8.
"Senior Lender" means
Senior Loan Note(s).
or any other holder of the
"Senior Loan" shall mean the senior loan being made by
_ ,concurrent to the City/HOME Loan for payment of a portion of the
acquisition and Construction Costs, and shall include any subsequent loan that refinances the
initial Senior Loan.
"Senior Loan Deed of Trust" means the deed of trust securing the
Senior Loan by encumbering the Property.
"Senior Loan Documents" means, collectively, the loan agreement
governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other
agreement, document or instrument that the Senior Lender requires in connection with the Senior
Loan.
"Senior Loan Note" means the promissory note evidencing the
Senior Loan from
"Term" the terms and conditions contained herein shall remain in effect for fifty-
five (55) years.
"Very Low Income" means an adjusted income which does not exceed fifty
percent (50%) of the area median income for the Orange County, California PMSA, adjusted for
household size, as published by HUD.
"Vista Del Rio" means Vista Del Rio Housing Partners, L.P., a California limited
partnership, and its successors and assigns.
"Vista Del Rio's Representative" shall mean the Chief Executive Officer of the
General Partner of Vista Del Rio or his/her designee.
1.2 Singular and Plural Terms. Any defined term used in the plural in this
Agreement or any other City Loan Document shall refer to all members of the relevant class and
any defined term used in the singular shall refer to any number of the members of the relevant
class.
7
80A-83
1.3 References and Other Terms. Any reference to this Agreement or any Loan
Document shall include such document both as originally executed and as it may from time to
time be modified. References herein to Articles, Sections and Exhibits shall be construed as
references to this Agreement unless a different document is named. References to subparagraphs
shall be construed as references to the same Section in which the reference appears. The term
"document" is used in its broadest sense and encompasses agreements, certificates, opinions,
consents, instruments and other written material of every kind. The terms "including" and
"include" mean "including (include) without limitation."
1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement,
as now existing and as the same may from time to time be modified, are incorporated herein by
this reference.
2. [RESERVED]
SCOPE OF WORK/ PROJECT BUDGET
A "Scope of Work" for the Property is attached hereto as Exhibit E. Any material change
to the Scope of Work requested by the Vista Del Rio shall be subject to the prior written
approval of the Executive Director.
A line-item budget for the Project, including a summary statement of sources and uses of
funds, is incorporated into Exhibit E (the "Project Budget"). Any material change to the Project
Budget requested by Vista Del Rio shall be subject to the prior written approval of the Executive
Director.
4. COMPLIANCE WITH REHABILITATION ACT
The design and Construction of the Project shall at all times comply with Section 504.
5. CITY LOAN:
A. Amount and Purpose. Subject to the terms and conditions of this Agreement, City
agrees to make a loan of HOME funds to Vista Del Rio in the principal amount of up to FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) (the "City Loan") for the acquisition and
Construction of the Property.
B. City/HOME Note and Deed of Trust The City/HOME Loan shall be evidenced
by the City/HOME Loan Note in the form attached hereto as Exhibit C. The City Loan shall be
secured by the City/HOME Loan Deed of Trust in the form attached hereto as Exhibit B. The
City/HOME Deed of Trust shall be a deed of trust encumbering the Property, subordinate to the
Senior Loan(s) and the Agency Deed of Trust securing the Agency Loan made to Vista Del Rio.
C. City/HOME Loan Terms The terms and conditions of the City/HOME Loan are
as set forth in the City/HOME Loan Note which is a residual receipts note. The City/HOME
8
80A-84
Loan Note shall be subordinate to the Senior Loan, and shall continue in full force and effect for
the entire HOME Compliance Period.
6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS
6.1 Conditions Precedent. City's obligation to disburse the Loan Amount(s) is subject to the
satisfaction, or waiver by the Executive Director, of the following conditions precedent:
( a) Loan Documents. Vista Del Rio shall have delivered to the
Escrow Holder, signed by the authorized officer or officers of Vista Del Rio, with such
signature(s) acknowledged where necessary, each of the following documents:
(i) the Agency DDA
(ii) The City/HOME Loan Note;
(iii) The City/HOME Deed of Trust; and
(iv) The Affordability Restrictions on Transfer of Property.
(b) Title Insurance. Agency and City shall have received an LP-10
ALTA Lender's loan policy of title insurance (1970 edition), or evidence of a commitment
therefore satisfactory to City, issued by First American Title Insurance Company and in form
and substance satisfactory to City, together with all endorsements and binders required, naming
City and Agency as the insured, in a policy amount of not less than the City/HOME Loan
Amount and the Agency Loan Amount, showing Vista Del Rio as the fee owner of the Property
and insuring the City/HOME Deed of Trust and the Agency Deed of Trust to be valid priority
liens on the Property. The City/HOME Loan Note and Deed of Trust and the Agency Note and
Deed of Trust shall be subordinate to the Senior Loan Note and First Deed. The Agency Loan
documents shall take priority over the City/HOME Loan documents pursuant to City/Agency's
request.
(c) Affordability Restrictions on Transfer of Property. Vista Del Rio
shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit B, the
Affordability Restrictions on Transfer of Title pursuant to which, among other things, Vista Del
Rio agrees that the Property shall be used only for decent, safe, sanitary and affordable rental
housing pursuant to the affordability requirements of Code of Federal Regulations ("CFR")
section 92.252 or 92.254 and California Health and Safety Code ("H&S") sections 50052.5 and
33334.3, as applicable.
(d) Documents Recorded. This Loan Agreement, the Agency Loan Deed of
Trust, the City/HOME Loan Deed of Trust and the Affordability Restrictions on Transfer of
Property shall have been recorded in the Official Records of the County.
(e) Request for Notice For the benefit of City, Escrow
9
80A-85
Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for
Notice of Default").
(f) Insurance. City shall have received evidence satisfactory to
the City Attorney that all of the policies of insurance required by Section 19 of this Agreement
are in full force and effect.
(g) Representations and Warranties The representations and
warranties of Vista Del Rio contained in this Agreement and the other Loan Documents shall be
correct as of the Close of Escrow as though made on and as of that date, and if requested by the
Executive Director, City shall have received a certificate to that effect signed by Vista Del Rio's
Representative.
(h) No Default. No Event of Default by Vista Del Rio shall have occurred, and no
event shall have occurred which, with the giving of notice or the passage of time or both, would
constitute an Event of Default by Vista Del Rio under this Agreement, and if requested by the
Executive Director, City shall have received a certificate to that effect signed by Vista Del Rio's
Representative.
6.2 Disbursement Procedures for Loan
A portion of the Loan proceeds shall be disbursed through Escrow to finance the
acquisition of the Property, with other proceeds being used for the Construction (as evidenced in
Exhibit E). The Loan proceeds shall not be used for any purpose other than for acquisition costs of
the Property and/or construction costs, including developer's fees and soft costs related to
development of the Project (costs all subject to City's prior review).
6.3 First Disbursement. City's obligation to make the first disbursement of the Construction
Portion is subject to satisfaction of the following conditions precedent:
(a) General Contractor. If the Executive Director has not yet
approved the General Contractor, the Executive Director shall have approved the identity
and qualifications of the General Contractor.
(b) Construction Contract. If the Executive Director has not yet
approved the Construction Contract, the Executive Director shall have approved the
Construction Contract.
6.4 Termination for Failure of Condition. If (a) any of the conditions set forth herein are
not timely satisfied or waived by the Executive Director, and (b) City is not in default under this
Agreement, City may terminate this Agreement without any further liability on its part by giving
written notice of termination to Vista Del Rio. Upon the giving of such notice, all principal,
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interest and other amounts owing under the City Loan Note(s) shall be immediately due and
payable, regardless of any other specified due date.
6.5 Any Disbursement. City's obligation to make any disbursement of the Construction
Portion (including the first and final disbursements) is subject to the
satisfaction of the following conditions precedent:
(a) Satisfactory Pro ress. The Executive Director shall be satisfied,
based on his/her own inspections or other reliable information, that the Construction is
progressing satisfactorily in conformance with all applicable laws and other requirements
(including HOME regulations).
(b) Condition of Title. Either (i) the Executive Director reasonably
believes that no event has occurred since the Close of Escrow that would give rise to a
colorable claim against the Property e(~. ., a mechanic's lien) superior to the claim of City against
the Property with respect to the subject disbursement, or (ii) City must have received, at Vista
Del Rio's expense but payable out of the Construction Proceeds, from the title insurer who
issued City's LP-10 Title Policy, all endorsements thereto then reasonably required by City
(including, without limitation, CLTA Form 122 -priority of advance endorsements).
(c) Representations and Warranties The representations and
warranties of Vista Del Rio contained in this Agreement and the other City Loan Documents
shall be correct as of the date of the disbursement as though made on and as of that date.
(d) No Default. No Event of Default by Vista Del Rio shall remain
uncured and no event shall have occurred which, with the giving of notice or the passage of time
or both, would constitute an Event of Default by Vista Del Rio.
6.6 Final Disbursement. City's obligation to disburse that portion of the Construction
Portion retained pursuant to Section 6.12 is subject to the satisfaction of the following additional
conditions precedent:
(a) Construction Complete. The Construction shall be complete.
(b) Certificate of Occupancy Issued. Any portion of the Construction
requiring inspection or certification by any Governmental Authority shall have been
inspected and certified as complete. Vista Del Rio shall request that the Building Department
issue a Certificate of Occupancy, a copy of which shall be delivered to the Executive Director, in
order for final disbursement to occur.
(c) Lien Free. At least one of the following shall have occurred:
(i) Thirty-five (35) days shall have passed since the
recording of a valid notice of completion for the Construction, and no mechanic's
or material man's lien shall be outstanding; or
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(ii) Ninety-five (95) days shall have passed since actual
completion of the Construction, and no mechanic's or materialman's lien shall be
outstanding, or Vista Del Rio shall have bonded over any such lien to City's reasonable
satisfaction.
6.7 Waiver of Conditions. The conditions set forth pertaining to City's
obligation to make disbursements of the Construction Portion are for City's benefit only and the
Executive Director may waive all or any part of such rights by written notice to Vista Del Rio.
6.8 Disbursement Reauests. The Construction Portion proceeds shall be
disbursed on a line-item by line-item basis in accordance with the Construction Budget and
subject to the conditions in this section. In no event shall City have any obligation to disburse
any amount for any item in excess of the amount allocated to such item in the Construction
Budget. Disbursements shall be made only upon Vista Del Rio's written request in the form of a
Disbursement Request showing all costs which Vista Del Rio intends to fund with such
disbursement, itemized in such detail as City may reasonably require, accompanied in each case
by (a) invoices and lien releases satisfactory to City, including in any event partial lien releases
executed by each contractor and subcontractor who has received any payment for work
performed, and (b ) all other documents and information reasonably required by City.
Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date
of the requested disbursement, and shall not be submitted more often than monthly.
Prior to each disbursement by City of proceeds of the City Loan, Borrower shall deliver to City
and to Bank a draw request ("Draw Request"), and all required supporting information as set
forth in the Loan Documents or as otherwise reasonably required by City or Bank in order to
provide information for evaluating the requested disbursement pursuant to customary
construction lending practices of institutional lenders in Southern California.
City and Bank shall notify the other and Borrower of approval or disapproval of each Draw
Request within five (5) business days after receipt of the Draw Request, using the Bank's
"Disbursement/Change Order Approval Notice". City and Bank shall have the right, but not the
obligation, to discontinue processing Draw Requests unless and until receipt of notification from
the other of approval or disapproval of each outstanding Draw Request.
6.9 Manner of Disbursement. City may make any disbursement by check payable to Vista
Del Rio; or on a voucher basis; or by check payable jointly to Vista Del Rio and any contractor,
subcontractor or other claimant; or directly to any such claimant; or by any other means
reasonably selected by City.
6.10 Cost Overruns. In the event that, at any time and for any reason, (a) the
actual cost reasonably estimated by City or Vista Del Rio to be required to complete all matters
included in any line item by $10,000.00 in the Construction Budget exceeds the amount allocated
to that line item in the Construction Budget, (b) Construction Costs for any matters not covered
by a specific line item have been or will be incurred in excess of $10,000.00, or (c) the
undisbursed portion of the Construction Portion is or may be insufficient to pay all Construction
Costs that may be payable under the City Loan Documents or otherwise in connection with the
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Construction, Vista Del Rio shall, within ten (10) days after it receives written notice thereof
from City of any of the foregoing matters, do one or more of the following:
(a) provide satisfactory evidence to City that Vista Del Rio has
previously paid such excess or otherwise provided for such insufficiency (collectively, the
"Excess Cost") with funds from a source other than the City Loan;
(b) reallocate sufficient funds to pay the Excess Cost from funds
allocated to "Contingency" in the Construction Budget; provided, however, that the
Executive Director's consent to any such reallocation shall be required; or
(c) deposit an amount equal to the Excess Cost in anon-interest
bearing account (the "Overrun Account") with City from which withdrawals may be made only
with the consent of the Executive Director but which will be exhausted prior to any further
disbursement for any line item, so that any resulting surplus in any line item of the Construction
Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be
incurred.
City shall have no obligation to make further disbursements until Vista Del Rio has paid or
otherwise provided for the overrun as required above. Amounts deposited by Vista Del Rio in the
Overrun Account for any Excess Costs shall be disbursed by City prior to the disbursement of
any remaining Construction Portion proceeds in the manner described in subsection 9.3(c).
6.11 Cost Savings. Upon completion of and disbursement for all matters covered by any line
items in the Construction Budget, any remaining undisbursed amounts allocated to that line item
shall be reallocated to "Contingency" and thereafter be available for disbursement in accordance
with the terms of this Agreement.
6.12 Retainage. City will withhold a Retainage of 10% from each Disbursement for each
of the Hard Cost line items of the Project Cost Breakdown (and other line items thereof
designated for withholding of retainage) until all conditions to the final Disbursement of Hard
Costs have been satisfied. In lieu of City's withholding Retainage, Vista Del Rio can by written
notice to City elect not to draw any overhead or profit as would otherwise be permitted under the
Construction Contract until such time as Retainage would otherwise have been released.
City shall not retain funds for building materials purchased by Vista Del Rio for which Vista Del
Rio supplies documentation to City proving payment in full or for soft costs.
6.12.1 Holdback. The retainage otherwise available for disbursement
shall be subject to a holdback of one hundred twenty-five percent (125%) of the estimated cost
(as determined by the Executive Director) for "punch-list" items. Such holdback will be released
when all punch-list items have been completed to the satisfaction of City.
6.13 Waiver of Disbursement Conditions. Unless City otherwise
agrees in writing, the making by City of any disbursement with knowledge that any condition to
such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to
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the particular disbursement made, and such condition shall be condition to all further
disbursements until fulfilled.
6.14 Modification of Disbursement Conditions and Procedures. The
Executive Director shall have the authority to modify the disbursement conditions and
procedures set forth herein in order to conform them to the payment provisions of the
Construction Contract.
6.15 Other Terms and Conditions of Loan.
A. The Note(s) shall become immediately due and payable, in the event of any of
the following:
(1) failure to complete the Project within three (3) years of the recording
date;
(2) violation of any of the use covenants and restrictions contained in this
Agreement after the expiration of any applicable notice and cure periods;
(3) an Event of Default by Vista Del Rio which is not timely cured after
expiration of any applicable notice and cure periods pursuant to the terms of
this Agreement.
6 .16 Closing Costs and Fees. Vista Del Rio shall pay (a) all escrow fees and charges, (b) all
recording fees and charges on any document recorded pursuant to this Agreement, and (c) the
premium for the title insurance required hereunder.
7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE
PROPERTY
7.1 Use Covenants and Restrictions.
A. Vista Del Rio agrees and covenants, which covenants shall run with the land and bind Vista
Del Rio, its successors, its assign and every successor in interest to the Property that Vista Del Rio
will make all rental units on the Property available to extremely low and very low households at rents
affordable to such households for fifty-five (55) years from the effective date of this Agreement. The
HOME restrictions for the four (4) HOME assisted units shall be enforced until the date that is fifteen
(15) years after the date on which the City reports the Project as complete to the Department of
Housing and Urban Development. Upon expiration of the HOME Compliance Period, the Agency
will enforce affordability of said units with the same income and rent restrictions as the other units,
pursuant to Agency guidelines and the California Health and Safety Code.
B. The Project, shall consist of forty units (and one managers unit). There shall be four (4)
HOME assisted units and thirty-six (36) Agency assisted units. The HOME assisted units shall
be four (4) units, which may be floating and shall be distributed throughout the complex with
comparable amenities to the other units.
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C. At initial lease up, households in the HOME assisted units cannot earn more than 50% of
AMI, however existing tenants at the Property who are otherwise eligible under the HOME
Program may continue their tenancy at the Property. Rental increases shall be in conformance
with federal and state law. After the HOME Compliance Period, the City shall require that the
units remain affordable, with rents calculated based on assumed household size at the same
income levels, as required by the California Health & Safety Code.
D. .The maximum incomes of residential tenants eligible to rent the Units shall be determined
on the basis of the Area Median Income ("AMI") for the Orange County, California PMSA,
published approximately annually by the United States Department of Housing and Urban
Development ("HUD"). For purposes of this Agreement, the term "Extremely Low Income"
shall mean a household income that does not exceed 30% of the area median income, adjusted
for family size as determined by the HUD or successor agency; the term "Very Low Income"
shall mean a household income that does not exceed 50% of the area median income, adjusted
for family size as determined by the HUD or successor agency; and the term "Low Income" shall
mean a household income that does not exceed 80% of the area median income, as determined
by HUD, adjusted for family size. The manager's unit shall rent for an amount that does not
exceed the rent paid by a household whose income does not exceed the standard for "Low
Income."
E. Affordable rents charged to tenants shall be governed by California Health and Safety Code
Sections 50052.5 and 50053(b)(1), and as provided in the HOME Regulations 24 CFR section 92.2,
whichever is less.
7.2 Affordable Gross Starting Rents (Less Reasonable Utility Allowance): Initial rents may
be recalculated to allowable rental amounts at the time of initial lease-up following
completion of construction in accordance with any changes in allowable rent and income
tables as published by HUD and the State of California.
A. A~ency and HOME Assisted Units
City and Vista Del Rio agree that the initial rents and the breakdown of unit affordability for the
Extremely Low Income Units shall be as follows:
# of Units # of HOME 2009 Max.
(Agency) units* Gross Monthly
Rents
Studio Extremely Low Units 5 1 $452
One Bedroom Extremely Low Units 10 0 $517
Two Bedroom Extremely Low Units 3 1 $581
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City and Vista Del Rio agree that the initial rents and the breakdown of unit affordability for the
Very Low Income Units shall be as follows:
# of Units # of HOME 2009 Max.
(Agency) units* Gross
Monthly Rents
Studio Very Low Units 8 1 $753
One Bedroom Very Low Units 9 1 $861
Two Bedroom Very Low Units 2 0 $969
7.3 Rent Increases: On an annual basis, the City shall provide Vista Del Rio with the maximum
allowable schedule of rents for the Property in accordance with changes in allowable rent and
income tables published by HUD and the State of California, provided however that the rent for the
HOME units shall in no event be higher than the rent for the equivalent Agency assisted unit. In no
event can Vista Del Rio charge any tenant more than such amount.
7.4 Maintenance of the Prouerty. Solely at Vista Del Rio's expense, Vista Del Rio agrees to
maintain the Property in a clean and orderly condition and in good condition and repair and keep the
Property free from any accumulation of debris and waste materials. If at any time Vista Del Rio
fails to maintain, or cause to be maintained, the Property as required by this section, and said
condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30)
days from the date of written notice from the City, unless such condition cannot reasonably be cured
within thirty (30) days, in which case Vista Del Rio shall have such additional time as reasonably
necessary to complete such cure, the Agency or City may perform the necessary maintenance and
Vista Del Rio shall pay all reasonable costs incurred for such maintenance. The City shall inspect
the Property annually after the date of issuance of the Certificate of Completion as described in
Article 17 of this Agreement.
7.5 Obligation to Refrain from Discrimination. Vista Del Rio covenants and agrees for itself,
its successors, its assigns and every successor in interest to the Property or any part thereof, that
there shall be no discrimination against or segregation of any person or group of persons on account
of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Vista Del Rio itself
or any person claiming under or through him establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall
run with the land and shall remain in effect for the term of the Agreement.
8. DEFAULTS AND REMEDIES
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8.1 Event of Default. Failure or delay by either party to perform any term of provision of this
Agreement within the time periods provided herein for such performance constitutes a default under
the Agreement. If any party defaults in performance of its obligations, covenants or agreements
hereunder, the defaulting party shall be entitled to cure the default in accordance with this section.
The injured party shall give written notice of default to the party in default, specifying the default
complained of by the injure party. Delay in giving such notice shall not constitute a waiver of any
default nor shall it change the time of default. The defaulting party must, within thirty (30) days
following service of said written notice, commence to cure, correct or remedy such failure or delay
and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by
Vista Del Rio which is not cured within thirty (30) days following service of said notice, unless such
default cannot reasonably be cured within thirty (30) days, in which case Vista Del Rio shall have
such additional time as reasonably necessary to complete such cure but no more than ninety (90)
days, the Agency shall have the right to terminate this Agreement by delivery of written notice of
termination to Vista Del Rio.
8.2 Institution of Leal Actions. In addition to any other rights or remedies, either party may
institute legal action to cure, correct or remedy any default to recover damages for any default, or to
obtain any other remedy consistent with the purpose of this Agreement.
8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the right and remedies of the parties are
cumulative and the exercise by either party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any other rights or remedies for the
same default or any other default by the other party.
8.4 Damages. In the event that the City is liable for damages to Vista Del Rio, such liability
shall not exceed costs incurred by the Vista Del Rio in the performance of this Agreement and shall
not extend to compensation for loss of future income, profits or assets; provided, however, Vista
Del Rio's only remedy for any breach of this Agreement by the City shall be an action for specific
performance of such party's obligations.
8.5 Nonrecourse Liability. Neither Vista Del Rio, nor any partner of Vista Del Rio, shall have
any personal liability under this Agreement, or the attached Note(s) and Deed(s) of Trust, and any
judgment, decree or order for the payment of money obtained in any action to enforce the obligation
of Vista Del Rio to repay the loan evidenced by such documents shall be enforceable against Vista
Del Rio only to the extent of Vista Del Rio's interest in the Property.
9. GENERAL PROVISIONS AND WARRANTIES
As a material inducement to City to enter into this Agreement, Vista Del Rio represents and
warrants as follows:
9.1 Formation, pualification and Compliance Vista Del Rio (a) is a limited partnership,
validly existing and in good standing under the laws of the State of California, (b) has all
requisite authority to conduct its business and own and lease its properties, and (c) is qualified
and in good standing in every jurisdiction in which the nature of its business makes qualification
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necessary or where failure to qualify could have a material adverse effect on its financial
condition or the performance of its obligations under the Loan Documents. Vista Del Rio is in
compliance with all laws applicable to its business and has obtained all approvals, licenses,
exemptions and other authorizations from, and has accomplished all filings, registrations and
qualifications with, any Governmental Authority that are necessary for the transaction of its
business.
9.2 Execution and Performance of Loan Documents.
9.2.1 Vista Del Rio has all requisite authority to execute and
perform its obligations under the Loan Documents.
9.2.2 The execution and delivery of Vista Del Rio of, and the
performance by Vista Del Rio of its obligations under, each Loan Document has been authorized
by all necessary action and does not and will not:
(a) require any consent or approval not heretofore
obtained of any person having any interest in Vista Del Rio;
(b) violate any provision of, or require any consent or
approval not heretofore obtained under, any articles of incorporation, by-laws or other governing
document applicable to Vista Del Rio;
(c) result in or require the creation of any lien, claim,
charge or other right of others of any kind (other than under the City Loan Documents) on or
with respect to any property now or hereafter owned or leased by Vista Del Rio;
(d) violate any provision of any law presently in effect;
or
(e) constitute a breach or default under, or permit the
acceleration of obligations owed under, any contract, loan agreement, lease or other agreement or
document to which Vista Del Rio is a party or by which Vista Del Rio or any of its property is
bound.
9.2.3 Vista Del Rio is not in default, in any respect that is materially adverse
to the interests of City under the Loan Documents or that would have any material adverse effect
on the financial condition of Vista Del Rio or the conduct of its business, under any law,
contract, lease or other agreement or document described in sub-paragraph (d) or (e) of the
previous subsection.
9.2.4 No approval, license, exemption or other authorization from, or
filing, registration or qualification with, any Governmental Authority is required which has not
been previously obtained in connection with:
(a) the execution of Vista Del Rio of, and the
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performance by Vista Del Rio of its obligations under, the Loan Documents; and
Documents.
(b) the creation of the liens described in the Loan
9.3 Financial and Other Information. To the best of Vista Del Rio's knowledge,
all financial information furnished to City with respect to Vista Del Rio in connection with the
Loans (a) is complete and correct in all material respects as of the date of preparation thereof, (b)
accurately presents the financial condition of Vista Del Rio, and (c) has been prepared in
accordance with generally accepted accounting principles consistently applied or in accordance
with such other principles or methods as are reasonably acceptable to City. To the best of Vista
Del Rio's knowledge, all other documents and information furnished to City with respect to
Vista Del Rio, in connection with the Loans, are correct and complete insofar as completeness is
necessary to give the City accurate knowledge of the subject matter. To the best of Vista Del
Rio's knowledge Vista Del Rio has no material liability or contingent liability not disclosed to
City in writing and there is no material lien, claim, charge or other right of others of any kinds
(including liens or retained security titles of conditional vendors) on any property of Vista Del
Rio not disclosed in such financial statements or otherwise disclosed to City in writing.
9.4 _No Material Adverse Change. There has been no material adverse
change in the condition, financial or otherwise, of Vista Del Rio since the dates of the latest
financial statements furnished to City. Since those dates, Vista Del Rio has not entered into any
material transaction not disclosed in such financial statements or otherwise disclosed to City in
writing.
9.5 Tax Liability. Vista Del Rio has filed all required federal, state and local tax
returns and has paid all taxes (including interest and penalties, but subject to lawful extensions
disclosed to City in writing) other than taxes being promptly and actively contested in good faith
and by appropriate proceedings. Vista Del Rio is maintaining adequate reserves for tax liabilities
(including contested liabilities) in accordance with generally accepted accounting principles or in
accordance with such other principles or methods as are reasonably acceptable to City.
9.6 Governmental Requirements. Vista Del Rio is in compliance with all laws
relating to the Property and all Governmental Authority approvals, including zoning, land use,
planning requirements, and requirements arising from or relating to the adoption or amendment
of, any applicable general plan, subdivision and parcel map requirement; environmental
requirements, including the requirements of the California Environmental Quality Act and the
National Environmental Policy Act and the preparation and approval of all required
environmental impact statements and reports; use, occupancy and building permit requirements;
and public utilities requirements.
9.7 Rights of Others. Vista Del Rio is in compliance with all covenants,
conditions, restrictions, easements, rights of way and other rights of third parties relating to the
Property.
9.8 Litigation. There are no material actions or proceedings pending or, to
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the best of the Vista Del Rio's knowledge, threatened against or affecting Vista Del Rio or any
property of Vista Del Rio before any Governmental Authority, except as disclosed to City in
writing prior to the execution of this Agreement.
9.9 Bankruptcy. To the best of Vista Del Rio's knowledge, no attachments,
execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending or threatened against Vista Del Rio, nor are any
of such proceedings contemplated by Vista Del Rio.
9.10 Information Accurate. To the best of Vista Del Rio's knowledge, all
information, regardless of its form, conveyed by Vista Del Rio to City, by whatever means, is
accurate, correct and sufficiently complete to give City true and accurate knowledge of its
subject matter, and does not contain any misrepresentation or omission.
9.11 Conflicts of Interest. No member, official or employee of the City shall have any personal
interest, direct or indirect, in this Agreement, nor shall any such member, official or employee
participate in any decision relating to this Agreement which affects his/her personal interests or the
interests of any corporation, partnership or association in which he/she has a direct or indirect
financial interest. The Vista Del Rio warrants that it neither has paid nor given, nor will pay or give,
any third party any money or other consideration for obtaining this Agreement.
9.12 Nonliability of City Officials and Employees. No member, official or employee of the City
or Agency shall be personally liable to the Vista Del Rio in the event of any default or breach by the
City or Agency or for any amount which may become due to Vista Del Rio or on any obligations
under the terms of this Agreement.
9.13 No Assignment. Vista Del Rio expressly acknowledges and agrees that the City and Agency
have only agreed to assist the Vista Del Rio as a means by which to induce the
Construction/development of the Property. Accordingly, Vista Del Rio further expressly
acknowledges and agrees that this Agreement is a personal right of Vista Del Rio that is neither
negotiable, transferable, nor assignable except as set forth herein. Vista Del Rio may assign some or
all of its rights under the Agreement only with the prior written consent of the Executive Director of
the Agency (such consent not to be unreasonably withheld), except that no prior consent is
necessary for an assignment by an investor limited partner of Vista Del Rio to an affiliate, or as
otherwise provided in the Deed(s) of Trust.
9.14 Applicable Law. This Agreement shall be interpreted, governed and enforced under federal
and state laws.
9.15 Third Parties. This Agreement is made for the sole benefit of Vista Del Rio and the City and
Agency and their successors and assigns, and no other person or persons shall have any rights or
remedies under or by reason of this Agreement or any right to the exercise of any right or power of
the City hereunder or arising from any default by Vista Del Rio, nor shall the City owe any duty
whatsoever to any claimant for labor performed or materials furnished in connection with the
Construction of the Property.
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9.16 Control of Property. The parties acknowledge that neither the Agency nor City has at
anytime participated in any manner in the management or operation of the Property, and will not so
participate at any time hereafter.
10. CONDITIONS FOR CONSTRUCTION
10.1 Permits and Approvals. Vista Del Rio shall diligently obtain all permits,
including all building permits, licenses, approvals, exemptions and other authorizations of
Governmental Agencies required in connection with the Construction and conversion of the
Property.
10,2 Commencement and Completion of Construction.
The Construction shall be considered complete for purposes of this Agreement only when
(a) all work described has been completed and fully paid for, and (b) all work requiring
inspection or certification by Governmental Authority has been completed and all requisite
certificates, approvals and other necessary authorizations (including required final certificates of
occupancy) have been obtained.
10.3 Change Orders. The Construction Contract shall not be modified
except pursuant to change orders. All change orders:
(a) shall be in writing, numbered in sequence, signed
by Vista Del Rio and submitted to City prior to the proposed effectiveness thereof and
accompanied by any working drawings and a written narrative of the proposed change.
(b) Shall be subject to the Executive Director's and Senior Lender's
prior written approval.
10.4 Entry and Inspection. At all times prior to completion of the
Construction, upon reasonable notice, City and their agents shall have (a) the right of free access
to the Property and all sites away from the Property where materials for the Construction are
stored, (b) the right to inspect all labor performed and materials furnished for the Construction,
and (c) the right to inspect and copy all documents pertaining to the Construction.
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10.5 Compliance with Section 3 Clause. Section 3 of the Housing and Urban
Development act of 1968, 12 U.S.C. 1701u, as amended by Section 915 of the Housing and
Community Development Act of 1992 requires that economic opportunities generated by HUD
financial assistance for housing and community development programs be targeted toward low-
and very low- income persons. Whenever HUD assistance generates opportunities for
employment or contracting, state and local grantees, as well as other recipients of HUD housing
assistance funds must, to the greatest extent feasible, provide these opportunities to low- and
very low- income persons and to businesses owned by or employing low- and very low- income
persons. Section 3 applies to projects for which HUD's share of project costs exceeds $200,000
and contracts and subcontracts awarded on projects for which HUD's share or project costs
exceeds $200,000 and the contract or subcontract exceeds $100,000.
For purposes of this Section 3 Clause and compliance thereto, whenever the word
"contractor" is used it shall mean and include, as applicable, the Vista Del Rio, and its contractor
and subcontractor(s), if any. The particular text to be utilized in any and all contracts of any
contractor doing work covered by Section 3 shall be in substantially the form of the following, as
reasonably determined by the Agency, or as directed by HUD or its representative, and shall be
executed by the applicable contractor under penalty of perjury:
"(a) The work to be performed under this contract is subject to the
requirements of Section 3 of the Housing and Urban Development Act of 1968, as
amended, 12 U.S.C. 1701u ("Section 3"). The purpose of Section 3 is to ensure that
employment and other economic opportunities generated by HUD assistance or HUD-
assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to
low-and very low-income persons [inclusive of Very Low Income Persons, Very Low
Income Households, and Very Low Income Tenants served by the Project], particularly
persons who are recipients of HUD assistance for housing.
(b) The parties to this contract agree to comply with HUD's regulations in 24
CFR part 135, which implement Section 3. As evidenced by their execution of this
contract, the parties to this contract certify that they are under no contractual or other
impediment that would prevent them from complying with the part 135 regulations.
(c) The contractor agrees to send to each labor organization or representative
of workers with which the contractor has a collective bargaining agreement or other
understanding, if any, a notice advising the labor organization or workers' representative
of the contractor's commitments under this Section 3 clause, and will post copies of
notices in conspicuous places at the work site where both employees and applicants for
training and employment positions can see the notice. The notice shall describe the
Section 3 preference, shall set forth minimum number of job titles subject to hire,
availability of apprenticeship and training positions, the qualifications for each; and the
name and location of person(s) taking applications for each of the position; and the
anticipated date the work shall begin.
(d) The contractor agrees to include this Section 3 clause in every subcontract
subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate
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action, as provided in an applicable provision of the subcontract or in this Section 3
clause, upon a finding that the subcontractor is in violation of the regulations 24 CFR part
13 5. The contractor will not subcontract with any subcontractor where the contractor has
notice or knowledge that the subcontractor has been found in violation of the regulations
in 24 CFR part 135.
(e) The contractor will certify that any vacant employment positions,
including training positions, that are filled (a) after the contractor is selected but before
the contract is executed, and (b) with persons other than those to whom the regulations of
24 CFR part 135 require employment opportunities to be directed, were not filled to
circumvent the contractor's obligations under 24 CFR part 135.
(f) Noncompliance with HUD's regulations in 24 CFR part 135 may result in
sanctions, termination of this contract for default, and debarment or suspension from
future HUD assisted contracts."
After the foregoing Section 3 Clause, there shall be a signature block for the
contractor, as applicable, the following text shall be included immediately above the signature
block: "The contractor/provider by his/her signature affixed hereto declares under penalty of
perjury that contractor has read the requirements of the Section 3 Clause and accepts all its
requirements contained therein for all of his/her operations related to this contract."
To the extent applicable, the Vista Del Rio shall comply and/or cause compliance
with Section 3 Clause requirements for the Project. For example, when and if Vista Del Rio or
its contractor(s)/subcontractor(s) hire(s) full time employees, rather than volunteer labor or
materials, Section 3 is applicable and all disclosure and reporting requirements apply.
10.6 Construction Information. From time to time during the course of the
Construction but in no event more often than monthly, within ten (10) Business Days following
Agency or City's written demand therefore, Vista Del Rio shall furnish requested reports of
project costs, progress schedules and contractors' costs breakdowns for the Construction,
itemized as to trade description and item, showing the name of the contractor(s) and/or
subcontractor(s), and including such indirect costs as real estate taxes, legal and accounting fees,
insurance, architects' and engineers' fees, loan fees, interest during construction and contractors'
overhead.
10.7 Protection Against Liens: Vista Del Rio shall diligently file a valid
Notice of Completion upon completion of the Construction, diligently file a notice of cessation
in the event of a cessation of labor on the Construction for a period of thirty (30) days or more,
and take all actions reasonably required to prevent the assertion of claims of lien against the
Property. In the event that any claim of lien is asserted against the property or any stop notice or
claim is asserted against the Agency or the City by any person furnishing labor or materials to
the Property, Vista Del Rio shall immediately give written notice of the same to City and shall,
promptly and in any event within ten (10) Business Days after written demand therefor, (a) pay
and discharge the same, (b) effect the release thereof by delivering to City a surety bond
complying with the requirement of applicable laws for such release, or (c) take such other action
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as City may require to release City from any obligation or liability with respect to such stop
notice or claim.
11. FEDERAL (HOME PROGRAM) AND STATE REDEVELOPMENT
COVENANTS
11.1 [Intentionally Omitted]
11.2 Qualification as Affordable Housing. As more particularly provided in
the Affordability Restrictions on Transfer of Property, Vista Del Rio shall use, manage and
operate the Property in accordance with the requirements of 24 CFR 92.252 and California
Health and Safety Code section 50052.5 so as to qualify the housing on the Property as
Affordable Housing with affordable rents.
11.3 Tenant and Participant Protection. Vista Del Rio shall comply with the
requirements of 24 CFR 92.253.
11.4 [Intentionally Omitted]
11.5 Handicapped Accessibility. Vista Del Rio shall comply with (a) Section
504 of the Construction Act of 1973, and implementing regulations at 24 CFR 8C governing
accessibility of projects assisted under the HOME Program; and (b) the Americans with
Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36 in order to provide
handicapped accessibility to the extent readily achievable.
11.6 Use of Debarred. Suspended, or Ineligible Participants. Vista Del Rio shall
comply with the provisions of 24 CFR 24 relating to the employment, engagement of services,
awarding of contracts, or funding of any contractor or subcontractor during any period of
debarment, suspension, or placement in ineligibility status.
11.7 Maintenance of Drug-Free Workplace. Vista Del Rio shall certify that Vista Del
Rio will provide adrug-free workplace in accordance with 24 CFR 84.13.
11.8 Lead-Based Paint. Vista Del Rio shall comply with the requirements, as
applicable of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846) and
implementing regulations at 24 CFR 35.
11.9 Affirmative Marketing. Vista Del Rio shall implement and perform such
affirmative marketing procedures and requirements for the Property (24 CFR 92.351) in
compliance with the City's adopted Program (a copy of which is attached hereto and
incorporated herein as Exhibit F).
11.10 Equal Opportunity and Fair Housing. Vista Del Rio shall carry out the
Construction and perform its obligations under this Agreement in compliance with all of the state
and federal laws and regulations regarding equal opportunity and fair housing described in 24
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CFR 92.350. Vista Del Rio must also follow the requirements of Health and Safety Code section
33435.
11.11 Property Standards. Vista Del Rio shall cause the Property to meet the housing
quality standards set forth in 24 CFR 882.109, as well as all applicable local, state and federal
codes and ordinances, including zoning ordinances. Vista Del Rio shall also cause the Property
to meet the current edition of the Model Energy Code published by the Council of American
Building Officials.
11.12 f Intentionally Omittedl
11.13 Other Program Requirements. Vista Del Rio shall carry out each activity in
compliance with all federal laws and regulations described in subpart H of 24 CFR 92, except
that Vista Del Rio does not assume City's responsibilities for environmental review in 24 CFR
92.352 or the intergovernmental review process in 24 CFR 92.359.
11.14 Request for Disbursements of Funds. Notwithstanding anything contained in
this Agreement to the contrary, Vista Del Rio may not request disbursements of funds under this
Agreement until the funds are needed for payment of eligible costs (such funds shall be used
solely towards the acquisition of the Property). The amount of each request shall be limited to
the amount needed.
11.15 Eligible Costs. Vista Del Rio shall use HOME Funds only to pay costs defined
as "eligible costs" pursuant to 24 CFR 92.206.
11.16 Records and Reports. Vista Del Rio shall maintain and from time to time
submit to City such records, reports and information as the Executive Director may reasonably
require in order to permit City to meet the record keeping and reporting requirements required of
it pursuant to 24 CFR 92.508.
11.17 Reserved.
11.18 Conflict of interest. Vista Del Rio shall comply with and be bound by the
conflict of interest provisions set forth at 24 CFR 570.611, as well as state regulations pertaining
to conflict of interest.
11.19 Monitoring. Vista Del Rio shall allow the City to conduct periodic
inspections of the HOME assisted units on the Property as required by the Program after the date
of Construction completion, with reasonable notice. Vista Del Rio shall cure any defects or
deficiencies found by the City while conducting such inspections within thirty (30) days of
written notice thereof, or such longer period as is reasonable within the sole discretion of the
City. Health and Safety Code section 33418 requires that the Agency monitor, on an ongoing
basis, any affordable housing.
11.20 Recertification of Tenant Income.
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(A) Vista Del Rio shall take all necessary steps to review the income of all tenants prior
to renting to them, as well as reviewing current tenants on an annual basis, in accordance
with HOME regulations and guidelines. Every fifth (5th) year, Vista Del Rio shall require
new original income documents to be submitted by tenants. Tenants in HOME assisted
units whose incomes no longer comply with federal income guidelines shall have their
rents adjusted in accordance with federal HOME guidelines (24 CFR 92.252-92.253).
(B) HOME assisted units continue to qualify as affordable housing despite a temporary
non-compliance caused by increases in the incomes of existing tenants if actions
satisfactory to HUD are being taken to ensure that all vacancies are filled in accordance
with this section until the non-compliance is corrected.
11.21 Other HOME Program Requirements. Vista Del Rio shall comply with all
other applicable requirements of the HOME Program.
11.22 Controlling Covenants. If there is a discrepancy between State and Federal law
with regard to any of the aforementioned covenants, the more stringent shall apply.
12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND
REPAIR OF PROPERTY
12.1 Maintenance. Vista Del Rio shall maintain the Property (and all abutting grounds,
sidewalks, roads, parking and landscape areas which Vista Del Rio is otherwise required to
maintain) in good condition and repair; shall operate the Property in a businesslike manner; shall
prudently preserve and protect its own as well as the Agency and City's interests in connection
with the Property; shall not commit or permit any waste or deterioration of the Property (except
for normal wear and tear); shall not abandon any portion of the Property or leave the Property
unguarded or unprotected; and shall not otherwise act, or fail to act, in such a way as to
unreasonably increase the risk of any damage to the Property or of any other impairment of
City's interests under the Loan Documents. Without limiting the generality of the foregoing, and
except as otherwise agreed by City in writing from time to time, Vista Del Rio shall promptly
and faithfully perform and observe each of the following provisions:
12.1.1 Alterations and Repair. Vista Del Rio shall not remove, demolish or materially
alter any Improvement without City's prior consent, except to make non-structural repairs which
preserve or increase the Property's value, and shall promptly restore, in a good and professional
manner, any Improvement (or other aspect or portion of the Property) that is damaged or
destroyed from any cause.
12.2 Compliance. Vista Del Rio shall comply with all laws and requirements of
Governmental Authority (including, without limitation, all requirements relating to the obtaining
of Governmental Authority approvals), all Governmental Authority approvals and all rights of
third parties, relating to Vista Del Rio, the Property or Vista Del Rio's business thereon.
12.3 Taxes and Impositions. Vista Del Rio shall pay, prior to delinquency,
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all of the following (collectively, the "Impositions"): (a" all general and special real property
taxes and assessments imposed on the Property; (b) all other taxes and assessments and charges
of every kind that are assessed upon the Property (or upon the owner and/or operator of the
Property) and that create or may create a lien upon the Property (or upon any personal property
or fixtures used in connection with the Property), including, without limitation, non-
governmental levies and assessments pursuant to applicable covenants, conditions or restrictions;
and (c) all license fees, taxes and assessments imposed on City (other than City's income or
franchise taxes) which are measured by or based upon (in whole or in part) the amount of the
obligations secured by the Property. If permitted by law, Vista Del Rio may pay any Imposition
in installments (together with any accrued interest).
12.3.1 Right to Contest. Vista Del Rio shall not be required to pay any Imposition so
long as (a) its validity is being actively contested in good faith and by appropriate proceedings,
(b) Vista Del Rio has demonstrated to City's reasonable satisfaction that leaving such Imposition
unpaid pending the outcome of such proceedings could not result in conveyance of the Property
in satisfaction of such Imposition or otherwise impair City and Agency's interests under the Loan
Documents, and (c) Vista Del Rio has furnished City with a bond or other security satisfactory in
an amount not less than 100% of the applicable claim (including interest and penalties).
12.1.3.1 Evidence of Payment. Upon demand by City from
time to time, Vista Del Rio shall deliver to City, within thirty (30) days following the due date of
any Imposition, evidence of payment reasonably satisfactory to City.
12.1.3.3 Books and Records. Vista Del Rio shall maintain complete books of
account and other records reflecting its operations (in connection with any other businesses as
well as with respect to the Property), in accordance with generally accepted accounting
principles applied on a consistent basis or in accordance with such other principles or methods as
are reasonably acceptable to City, in accordance with 24 CFR 92.508.
12.4 (Intentionally omittedl
12.5 Proiect OperatinE Budget. Vista Del Rio must promptly deposit all project
income directly into a segregated depository account established exclusively for the Project
("Project Operating Account"). Withdrawals from this account may be made only in accordance
with the provisions of this Agreement and the approved Budget, as it may be revised from time
to time with City approval. Vista Del Rio may make withdrawals from this account solely for
the payment of project expenses and project fees. Withdrawals from this account for other
purposes may be made only with the prior written approval of the City.
12.6 Replacement Reserve Account. Vista Del Rio must establish or cause to be
established a segregated interest-bearing replacement reserve depository account ("Replacement
Reserve Account") no later than sixty (60) days after the Certificate of Completion is filed.
Vista Del Rio must make monthly deposits from project income into the Replacement Reserve in
accordance with Vista Del Rio's Budget, as amended from time to time. Vista Del Rio may
withdraw funds from the Replacement Reserve Account solely to fund capital improvements for
the Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of
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the Project that are reasonably required to preserve the Project. Vista Del Rio may not withdraw
funds from the Replacement Reserve Account for any other purpose without the prior written
approval of the City.
13. NONDISCRIMINATION COVENANTS
that:
13.1 Obligation to Refrain from Discrimination. Vista Del Rio covenants and agrees
A. In Use of Property. There shall be no discrimination
against or segregation of any person, or group of persons, on account of race, color, creed,
religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Property, nor shall Vista Del Rio or any person claiming
under or through it, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees, or vendors of the Property.
B. In Affordable Housing Restrictions. The
foregoing covenant shall (a) be included in the Affordability Restrictions on Transfer of
Property, (b) run with the land, and (c) remain effective for the term of the contract (for 55
years).
C. In Employment. In construction on the Property,
Vista Del Rio shall not discriminate against any employee or applicant because of race, color,
creed, religion, sex, marital status, national origin, or ancestry. Vista Del Rio shall take
affirmative action to ensure that applicants are employed, and that employees are treated during
employment, without regard to their race, color, creed, religion, sex, marital status, national
origin, or ancestry.
D. In all Contracts. Vista Del Rio shall cause the foregoing
covenants to be inserted in all contracts for any work covered by this Agreement so that such
provisions will be binding upon each contractor for the benefit of City, provided that the
foregoing covenant shall not apply to contracts or subcontracts for standard commercial supplies
or raw materials.
14. ENVIRONMENTAL MATTERS
14.1 Representation and Warranty. Except as disclosed in writing to the City, Vista
Del Rio has no knowledge (a) of the presence on, under or about the Property, now or in the past,
of any Hazardous Materials, or of the transportation to or from the Property of any Hazardous
Materials, (b) that asbestos or polychlorinated biphenyls (PCBs) are contained in or stored on the
Property, or (c) that there are any underground storage tanks located in, on or under the Property.
14.2 Compliance with Environmental Laws. Vista Del Rio shall (a) comply with all
environmental laws and environmental permits applicable to the Construction of the Property,
(b) immediately pay or cause to be paid all costs and expenses incurred by reason of such
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compliance, (c) keep the Property free and clear of any environmental claims or liens imposed
pursuant to any environmental law, and (d) obtain and renew all environmental permits required
for ownership or use of the Property.
14.3 Presence of Hazardous Materials. Vista Del Rio shall not, and shall not permit
anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on
the Property, or transport or permit the transportation of Hazardous Materials to or from the
Property except for de minimis quantities used at the Property in compliance with all applicable
environmental laws and required in connection with the routine operation and maintenance of the
Property.
14.4 Notice of Environmental Matters. Vista Del Rio shall immediately advise City
in writing of any of the following: (a) any pending or threatened environmental claim against
Vista Del Rio or the Property, (b) any condition or occurrence that (i) results in noncompliance
with any applicable environmental law, (ii) could reasonably be anticipated to cause the Property
to be subject to any restrictions on the ownership, occupancy, use or transferability of the
Property under any environmental Law, or (iii) could reasonably be anticipated to form the basis
of an environmental claim against the Property or Vista Del Rio.
14.5 Environmental Indemnification by the Vista Del Rio. Vista Del Rio agrees to
defend, indemnify and hold harmless the City and their respective officers, directors, employees
and agents (collectively the "lndemnitees ") fro" and against any and all obligations (including
removal and remediation), losses, claims (including third party claims), suits, judgments,
liabilities, penalties, damages (including consequential and punitive damages), costs and
expenses (including consultants, and attorneys' fees' of whatever kind or nature whatsoever that
may at any time be incurred by, imposed on, or asserted against the lndemnitees directly or
indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous
Materials on the Property.
15. OTHER AFFIRMATIVE COVENANTS
While any obligation of Vista Del Rio under the City Loan Notes or Deeds of Trust
remain outstanding, the following provisions shall apply, except to the extent that Executive
Director otherwise consents in writing:
15.1 Existence. Vista Del Rio's managing general partner shall maintain its existence
in good standing under the laws of the State of California, and Vista Del Rio shall
provide documentation of such status annually to the City.
15.2 Protection of Lien. Vista Del Rio shall maintain the lien of the City Deed(s) of
Trust as a valid second and third priority deed of trust on the Property and take all
actions, and execute and deliver to City all documents, reasonably required by City from
time to time in connection therewith.
15.3 Notice of Certain Matters. Vista Del Rio shall give notice to City, within ten
(10) days of Vista Del Rio's learning thereof, of each of the following:
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(a) any filed litigation or claim affecting or relating to the
Property and involving an amount in excess of $5,000; and any litigation or claim that might
subject Vista Del Rio or any general partner to liability in excess of $5,000, whether covered by
insurance or not;
(b) any dispute between Vista Del Rio and a Governmental
Authority relating to the Property, the adverse determination of which might materially affect the
Property;
(c) any change in Vista Del Rio's principal place of business;
(d) any aspect of the Improvements that is not in
substantial conformity with the plans or code;
(e) any Event of Default or event which, with the giving of
notice or the passage of time or both, would constitute an Event of Default;
(f) any material default by Vista Del Rio or any other party under
any Senior Loan document, or the receipt by Vista Del Rio of any notice of default under any
Senior Loan document;
(g) the creation or imposition of any mechanics' or materialmans' lien
or other lien against the Property which might materially affect the Property; and/or
Vista Del Rio.
(h) any material adverse change in the financial condition of
15.4 Further Assurances. Vista Del Rio shall execute and acknowledge (or cause to
be executed and acknowledged) and deliver to City all documents, and take all actions,
reasonably required by City from time to time to confirm the rights created or now or hereafter
intended to be created under the Loan Documents; to protect and further the validity, priority and
enforceability of the City Deeds of Trust; to subject to the Deed(s) of Trust any property
intended by the terms of any Loan Document(s) to be covered by the City Deeds of Trust or
otherwise to carry out the purposes of the Loan Documents and the transactions contemplated
thereunder .
15.5 Annual Financial Statements. Vista Del Rio shall deliver to City, within one
hundred twenty (120) days after the end of each Calendar Year, (a) a certified public accountant
reviewed balance sheet for Vista Del Rio as of the end of such Calendar Year and a certified
public accountant reviewed statement of profit and loss for Vista Del Rio and for Vista Del Rio's
operations in connection with the Property for such Calendar Year, together with all supporting
schedules, (b) a certificate of such certified public accountant that such documents were
reviewed by such certified public accountant in accordance with generally accepted accounting
principles and otherwise comply with generally accepted accounting principles review
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requirements, and (c) a certificate of Vista Del Rio's chief financial officer that such documents:
(i) were prepared in accordance with generally accepted accounting principles applied on a
consistent basis or in accordance with such other principles or methods as are reasonably
acceptable to City, (ii) fairly present Vista Del Rio's financial condition, (iii) show all material
liabilities, direct and contingent, and (iv) fairly present the results of Vista Del Rio's operations.
Vista Del Rio shall also provide the City with any other annual audit reports issued by other
monitoring agencies.
15.6 Audits and Access to Records. Vista Del Rio agrees that City, the U.S.
Department of Housing and Urban Development, the Comptroller General of the United States
or any of their authorized representatives shall have the right of access, upon reasonable notice,
to any books, documents, papers, or other records of Vista Del Rio which are pertinent to this
Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Vista Del
Rio will maintain all books and records pertaining to this Agreement for a period of not less than
five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are
resolved in accordance with applicable federal or state laws, regulations or policies, and when a
period of affordability or recapture applies to Vista Del Rio's activities, for a period of not less
than five (5) years after the affordability or recapture period ends.
15,7 Termite Inspection Report. Vista Del Rio shall deliver a termite report
pertaining to the Property to the City every fifth (5th) year beginning January 2013.
16. OTHER NEGATIVE COVENANTS
While any obligation of Vista Del Rio under the City Notes or City Deeds of Trust
remain outstanding, the following provisions shall apply, except to the extent that Executive
Director otherwise consents in writing:
16.1 Default on Senior Loan. Vista Del Rio shall not default on any of the Senior
Loan documents, provided however, that Vista Del Rio shall have such period as is provided in
the Senior Loan Documents during which to effectuate a cure.
16.2 Sale or Lease of Property. Unless and until Vista Del Rio has received a
Certificate of Completion for the Construction from City, Vista Del Rio shall not sell, lease,
sublease or otherwise transfer all or any part of the Property or any interest therein without the
prior written consent of the Executive Director, which consent may be withheld in the Executive
Director's reasonable discretion. In connection with the foregoing consent requirements, Vista
Del Rio acknowledges that City relied upon Vista Del Rio's particular expertise in entering into
this Agreement and continues to rely on such expertise to ensure the satisfactory completion of
the Construction.
Notwithstanding anything to the contrary contained herein, a "transfer" shall not include
(i) a transfer of a General Partner's interest in Vista Del Rio when made in connection with the
exercise by the Vista Del Rio's limited partner (the "Limited Partner") of "its rights upon a
default by a General Partner under the Vista Del Rio's Partnership Agreement (the "Partnership
Agreement") or upon a General Partner's withdrawal in violation of the Partnership Agreement,
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so long as the removal and substitution of the defaulting General Partner is made within thirty
(30) days of such default or, if such removal and substitution cannot reasonably be completed
within thirty (30) days, so long as the Limited Partner commences to take action to remove and
substitute the General Partner with a reasonable period and thereafter diligently proceeds to
complete such substitution; (ii) any transfer of the Property to the Managing General Partner
pursuant to the right of first refusal or to the General Partners pursuant to the purchase option, as
provided for in the Partnership Agreement; (iii) Any Transfer of the Limited Partner's interest in
connection with a default by the Limited Partner under and in accordance with the Partnership
Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of
the Vista Del Rio.
17. CERTIFICATE OF COMPLETION
Upon satisfactory completion of the Construction and upon the request of Vista Del Rio,
or at its own election, the City of Santa Ana shall issue a Certificate of Completion. Such
Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory
completion of the Construction.
If City declines to furnish a Certificate of Completion after written request from Vista
Del Rio, the Executive Director shall, within thirty (30) days after receipt of the request, provide
Vista Del Rio with a written statement of the reasons therefore. The statement shall contain a
description of the action Vista Del Rio must take to obtain a Certificate of Completion. If the
reason therefore is that the Vista Del Rio has not completed a minor portion of the Construction,
City may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting
with City of a bond or other form of security acceptable to the Executive Director in the amount
of the fair value of the uncompleted work.
A Certificate of Completion is not evidence of compliance with or satisfaction of the
Loan Documents or any obligation of Vista Del Rio to any other party whatsoever, including any
holder of a mortgage or deed of trust. A Certificate of Completion is not "notice" of completion"
referred to in Section 3093 of the California Civil Code.
18. INDEMNIFICATION
18.1 Nonliability of Agency and City. Vista Del Rio acknowledges and agrees that:
(a) The relationship between Vista Del Rio and City is and
shall remain solely that of borrower and lender, City neither undertakes nor assumes any
responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform Vista
Del Rio of any matter in connection with the Construction, including matters relating to: (i) the
performance of the Construction Work, (ii) architects, contractors, subcontractors and
materialmen, or the workmanship of or materials used by any of them, or (iii) the progress of the
Construction; and Vista Del Rio shall rely entirely on its own judgment with respect to such
matters and acknowledges that any review, inspection, supervision, approval or information
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supplied to Vista Del Rio by City in connection with such matters is solely for the protection of
City and that neither Vista Del Rio nor any third party is entitled to rely on it;
(b) Notwithstanding any other provision of any Loan Document: (i) the
Agency and City are not a partner, joint venture, alter-ego, manager, controlling person or other
business associate or participant of any kind of Vista Del Rio and City does not intend to ever
assume any such status; (ii) City's activities in connection with the Loan(s) shall not be "outside
the scope of the activities of a lender of money" within the meaning of California Civil Code
Section 3434, as modified or recodified from time to time, and City does not intend to ever
assume any responsibility to any person for the quality or safety of the Property; and (iii) City
shall not be deemed responsible for or a participant in any acts, omissions or decisions of Vista
Del Rio;
(c) City shall not be directly or indirectly liable or responsible for any loss or
injury of any kind to any person or property resulting from any construction on, or occupancy or
use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or
other onsite or offsite improvement; (ii) any act or omission of Vista Del Rio or any of Vista Del
Rio's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on
the Property or any fire or other casualty or hazard thereon; and
(d) By accepting or approving anything required to be performed or given
to City under the Loan Documents, including any certificate, financial statement, survey,
appraisal or insurance policy, City shall not be deemed to have warranted or represented the
sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a
warranty or representation by City to anyone.
18.2 Indemnity. Vista Del Rio shall defend (by counsel satisfactory to City),
indemnify and save and hold harmless the Indemnitees from and against all claims, damages,
demands, actions, losses, liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the making of
the Loan(s); (iii) a claim, demand or cause of action that any person has or asserts against Vista
Del Rio; (iv) any act or omission of Vista Del Rio, any contractor, subcontractor or material
supplier, engineer, architect or other person with respect to the Property; or (vi) the ownership,
occupancy or use of the Property. Notwithstanding the foregoing, Vista Del Rio shall not be
obligated to indemnify City with respect to the consequences of any act of gross negligence or
willful misconduct of City. Vista Del Rio's obligations under this Section shall survive the
cancellation of the City Loan Note(s), release and reconveyance of the City Deed(s) of Trust,
issuance of the Certificate of Completion, and termination of this Agreement.
18.2.1 Notwithstanding the foregoing, neither Vista Del Rio, nor any of its partners, shall
be personally liable for any indemnification obligation hereunder which would
result as the repayment of principal and/or interest under the Loan(s).
18.3 Reimbursement of City. In the event of Default, Vista Del Rio shall reimburse
City immediately upon written demand for all costs reasonably incurred by City (including the
reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether
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the same are independent contractors or employees of City) in connection with the enforcement
of the Loan Documents and all related matters including all claims, demands, causes of action,
liabilities, losses, commissions and other costs against which City is indemnified under the Loan
Documents. Such reimbursement obligations shall bear interest from the date occurring twenty
(20) days after City gives written demand to Vista Del Rio and shall be secured by the City
Deed(s) of Trust. Such reimbursement obligations shall survive the cancellation of the Loan
Note, release and reconveyance of the City Deed(s) of Trust, issuance of a Certificate of
Completion, and termination of this Agreement
19. INSURANCE, CASUALTY AND CONDEMNATION
19.1 Policies Required. While any obligation of Vista Del Rio under the Loan
Documents remains outstanding, Vista Del Rio shall maintain at Vista Del Rio's sol' expense,
with insurers either (i) admitted in California or (ii) are not admitted to California but have an
A.M. Best Rating of "A" or above and reasonably approved by the City, the following policies of
insurance in form and substance reasonably satisfactory to the City Attorney:
(a) worker's compensation insurance and any other insurance
required by law in connection with the Construction;
(b) prior to commencement until following completion of the
Construction, fire and hazard "all risk" insurance covering 100% of the replacement cost of the
Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all
other risks normally covered by "all risk" coverage policies in the area where the Property is
located; which said insurance shall expressly include damage or loss by flood or storm;
(c) upon commencement of the Construction and at all
times prior to completion of the Construction, builder's risk'-all risk insurance covering 100% of
the replacement cost of all Improvements (including offsite materials) during the course of
construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious
mischief and all other risks normally covered by "all risk" coverage policies in the area where the
Property is located; which said insurance shall expressly include damage or loss by flood or
storm;
(d) public liability insurance in amounts reasonably required
by City from time to time, and in no event less than $1,000,000 for "single" occurrence;"
(e)" property damage insurance in amounts reasonable
required by City from time to time, and in no event less than $1,000,000.
All such insurance shall provide that it may not be canceled or materially modified without thirty
(30) days prior written notice to City. The policies required under subparagraphs (b) and (c) shall
include a "lender's loss payable endorsement" (For" 438BFU) in form and substance satisfactory
to City, showing the Agency and the City as encumbrance. The Agency and the City shall be
named as an additional insureds) in the policies required under subparagraphs (d) and (e).
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Certificates of insurance for the above policies (and/or original policies, if required by City) shall
be delivered within ten (10) days after demand therefore, and prior to start of any Construction
work. All policies insuring against damage to the Improvements shall contain an agreed value
clause sufficient to eliminate any risk of co-insurance. No less than thirty (30) days prior to the
expiration of each policy, Vista Del Rio shall deliver to City evidence of renewal or replacement
of such policy reasonably satisfactory to City Attorney.
19.2 City Attorney May Modify. The City Attorney
may modify the type and amounts of insurance required pursuant to this Section.
19.3 Claims and Proceedings. Vista Del Rio shall give City
immediate notice of any material casualty to any portion of the Property, whether or not covered
by insurance, and of the initiation or threatened initiation of any proceeding for the
condemnation or other taking for public or quasi-public use of any portion of the Property
(collectively, "Condemnation"), an" shall provide City with copies of all documents which
pertain to any such casualty or Condemnation. Vista Del Rio shall take all action reasonably
required by City in connection therewith to protect the interests of Vista Del Rio and/or City, and
City shall be entitled (without regard to the adequacy of its security) to participate in any action,
claim, adjustment or proceeding and to be represented therein by counsel of its choice. Vista Del
Rio shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without
prior written approval, which approval shall not be unreasonably withheld or delayed.
19.4 Delivery of Proceeds to City. In the event that,
notwithstanding the "lender's loss payable endorsement" requirement set forth above, the
proceeds of any casualty insurance policy described herein are paid to Vista Del Rio, Vista Del
Rio shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the
Agency and City immediately upon receipt.
19.5 Application of Casualty Insurance Proceeds. Any
proceeds collected (the "Proceeds") under any casualty insurance policy described in this
Agreement shall be disbursed to Vista Del Rio as provided below, but only upon fulfillment of
each of the following conditions (the "Restoration Conditions") within ninety (90) days (unless
extended by mutual agreement of Vista Del Rio and City) following the occurrence of the
damage for which the Proceeds are collected:
(a) Vista Del Rio shall demonstrate to City's reasonable
satisfaction that the Proceeds (together with amounts deposited by Vista Del Rio pursuant to
subparagraph (b)) will be adequate to repair the Improvements and to restore the fair market
value of the Property, within a time period reasonably determined by City, to at least the value it
had immediately prior to sustaining the damage. Such demonstration shall include delivery to
City of (i) plans and specifications reasonably satisfactory to City, and (ii) a Construction
contract in form and content, and with a contractor, reasonably satisfactory to City.
(b) To the extent that the Proceeds are insufficient to
accomplish the restoration required above, Vista Del Rio shall deliver to City funds (the
"Shortfall Funds") in the amount of such shortfall, which funds shall be assigned to City as
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security for Vista Del Rio's obligation hereunder and held and disbursed in the same manner as
the Proceeds.
(c) Vista Del Rio shall execute such documents as City requires to
evidence and secure Vista Del Rio's obligation to use all amounts
disbursed for the diligent restoration of the Property.
(d) No Event of Default shall remain uncured.
19.6 Method of Disbursement and Undisbursed Funds.
Any Proceeds and Shortfall Funds to be disbursed to Vista Del Rio shall be held by Agency/ City
and disbursed in accordance with then customary disbursement procedures and related
provisions. Any amounts remaining undisbursed following completion of such restoration shall
be returned to Vista Del Rio up to the amount of any Shortfall Funds deposited by Vista Del Rio,
and any other amounts remaining shall either be paid to Vista Del Rio or applied by City against
any obligations to City that are secured by a lien on the Property, as they elect in their sole and
absolute discretion.
19.7 Failure to Satisfy Conditions. In the event that Vista Del Rio
fails to fulfill the Restoration Conditions within ninety (90) days (unless extended pursuant to
Section 19.5) following the date on which the damage occurs, the Proceeds shall be applied by
City against any obligations to City that are secured by a lien on the Property, and the selection
of which such obligations to apply the Proceeds against shall be made by City in their sole and
absolute discretion.
19.8 Restoration. Nothing in this Article 19 shall be
construed to excuse Vista Del Rio from repairing and restoring all damage to the Property in
accordance with other Loan Document provisions, regardless of whether insurance proceeds are
available or sufficient.
19.9 Condemnation; Treatment of Compensation
Subject to any superior rights of Senior Lender, Vista Del Rio hereby assigns to the Agency and
City, as security for all obligations to Agency or City secured by a lien on the Property, all
amounts payable to Vista Del Rio in connection with any Condemnation, and any proceeds of
any related settlement (collectively, "Compensation"). Subject to any superior rights of Senior
Lender, Vista Del Rio shall deliver such remaining Compensation to City immediately upon
receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion
of City, renders or is likely to render the Property not economically viable or if, in City's
reasonable judgment Vista Del Rio's security is otherwise impaired, City may apply the
Compensation received due to judgment or settlement in connection with any condemnation or
other taking to reduce the unpaid obligations secured in such order as City may determine, and
without any adjustment in the amount or due dates of payments due under the Note. If so
applied, any award in excess of the unpaid balance of the Note and other sums due to City shall
be paid to Vista Del Rio or Vista Del Rio's assignee. City shall have no obligation to take any
action in connection with any actual or threatened condemnation or other proceeding.
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80A-112
19.9.1 Notwithstanding the foregoing, as long as the value of City's liens are not
impaired, any condemnation proceeds may be used by the Borrower for repair and/or restoration
of the project.
19.10 Waiver of Subrogation. Vista Del Rio hereby waives all rights to
recover against the Agency or the City (or any officer, employee, agent or representative of
Agency or City) for any loss incurred by Vista Del Rio from any cause insured against or
required by any Loan Document, to be insured against; provided, however, that this waiver of
subrogation shall not be effective with respect to any insurance policy if the coverage thereunder
would be materially reduced or impaired as a result. Vista Del Rio shall use its best efforts to
obtain only policies which permit the foregoing waiver of subrogation.
20. DEFAULTS AND REMEDIES
20.1 Events of Default. The occurrence of any of the following, whatever the reason
therefore, shall constitute an Event of Default by Vista Del Rio:
(a) Vista Del Rio fails to make any payment of principal or
interest under the City Loan Note(s) when due, and such failure is not cured within fifteen (15)
Business Days after Vista Del Rio's receipt of written notice that such payment was not received
when due;
(b) Vista Del Rio fails to perform any other obligation for the
payment of money under any Loan Document, and such failure is not cured within fifteen (15)
Business Days after Vista Del Rio's receipt of written notice that such obligation was not
performed when due;
(c) Vista Del Rio fails to perform any obligation (other than the
obligations described in subparagraphs (a) and (b) above) under any Loan Document, and such
failure is not cured within thirty (30) days after Vista Del Rio's receipt of written notice that such
obligation was not performed; provided that, if cure cannot reasonably be effected within such
thirty (30)-day period, such failure shall not be an Event of Default so long as Vista Del Rio (in
any event, within ten (10) days after receipt of such notice) commences to cure, and thereafter
diligently (in any event within ninety (90) days after receipt of such notice) prosecutes such cure
to completion;
(d) Any representation or warranty in any Loan Document proves to
have been incorrect in any material respect when made;
(e) Reserved.
( f) The Property is materially damaged or destroyed by fire or other
casualty unless Vista Del Rio fulfills the Restoration Conditions set forth in the insurance
provisions of this Agreement within ninety (90) days (unless extended pursuant to Section 19.5)
and thereafter diligently restores the Property in accordance with this Agreement;
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80A-113
(g) Work on the Construction ceases for thirty (30) consecutive days
for any reason (other than governmental orders, decrees or regulations, acts of God or any other
deity, strikes or other causes beyond Vista Del Rio's reasonable control), provided that the same
do not, in the aggregate and in the City's reasonable judgment, threaten to delay the completion
of the Construction beyond the required completion date set forth in this Agreement;
(h) Vista Del Rio is enjoined or otherwise prohibited by any
Governmental Authority from constructing and/or occupying the improvements and such
injunction or prohibition continues unstayed for sixty (60) days or more for any reason;
(i) [intentionally omitted];
(j) Vista Del Rio is dissolved, liquidated or terminated, or all or
substantially all of the assets of Vista Del Rio are sold or otherwise transferred without the
Executive Director's prior written consent;
(k) Vista Del Rio is the subject of an order for relief by a bankruptcy
court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment
for the benefit of creditors; or Vista Del Rio applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any
part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of Vista Del Rio and the
appointment continues undischarged or unstayed for ninety (90) days; or Vista Del Rio institutes
or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
dissolution, custodianship, conservatorship, liquidation, Construction or similar proceeding
relating to it or any part of its property; or any similar proceeding is instituted without the
consent of Vista Del Rio and continues undismissed or unstayed for ninety (90) days; or any
judgment, writ, warrant of attachment or execution, or similar process is issued or levied against
any property of Vista Del Rio and is not released, vacated or fully bonded within ninety (90)
days after its issue or levy; or
(1) (i) any of the Senior Loan documents is revoked or terminated, in
whole or in part and for any reason (except due to repayment of such loans), without the
Executive Director's prior written consent, or (ii) Vista Del Rio defaults or otherwise fails to
perform any of its duties or obligations under or in connection with any of the Senior Loan
documents, subject to all applicable notice and cure periods, or (iii) any of the Senior Loan
documents is amended, supplemented or otherwise modified without City's prior written consent,
which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary
contained herein, City hereby agrees that any cure of any default made or tendered by Vista Del
Rio's Limited Partner shall be deemed to be a cure by Vista Del Rio and shall be accepted or
rejected on the same basis as if made or tendered by Vista Del Rio.
20.2 Remedies Upon Default. Upon the occurrence of any Event of Default, City
may, at its option and in its absolute discretion, do any or all of the following:
(a) By written notice to Vista Del Rio, declare the principal of all
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80A-114
amounts owing under the Loan Documents, together with all accrued interest and other amounts
owing in connection therewith, to be immediately due and payable, regardless of any other
specified due date; provided that any Event of Default described in Section 20.1 (e) shall
automatically, without notice or other action on City's par', cause all such amounts to be
immediately due and payable;
(b) In its own right or by acourt-appointed receiver, take possession of the
Property, enter into contracts for and otherwise proceed with the completion of the Construction
by expenditure of its own funds;
(c) Exercise any of its rights under the Loan Documents and any rights
provided by law, including, without limitation, the right to seek specific performance and the
right to foreclose on any security and exercise any other rights with respect to any security, all in
such order and manner as City elects in its sole and absolute discretion; and,
(d) Suspend or terminate the award of HOME funds if Vista Del Rio fails
to comply with any term of that award.
(e) Suspend or terminate the award of the tax increment funds if
Vista Del Rio fails to comply with any term of that award.
20.3 Cumulative Remedies: No Waiver. City's rights and remedies under the Loan
Documents are cumulative and in addition to all rights and remedies provided by law. The
exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor
invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the
Agency or City in the exercise of any other right or remedy. No waiver of any default shall be
implied from any omission by City to take action on account of such default if such default
persists or is repeated. No waiver of any default shall affect any default other than the default
expressly waived, and any such waiver shall be operative only for the time and to the extent
stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any
subsequent breach of the same provision. City's consent to or approval of any act by Vista Del
Rio requiring further consent or approval shall not be deemed to waive or render unnecessary
City's consent to or approval of any subsequent act. The Agency or the City's acceptance of the
late performance of any obligation shall not constitute a waiver by City of the right to require
prompt performance of all further obligations; City's acceptance of any performance following
the sending or filing of any notice of default shall not constitute a waiver of either party's right to
proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of
any partial performance shall not constitute a waiver by City of any rights.
21. MISCELLANEOUS
21.1 Obligations Unconditional and Independent. Notwithstanding the existence at
any time of any obligation or liability of City to Vista Del Rio, or any other claim by Vista Del
Rio against City, in connection with the Loan or otherwise, Vista Del Rio hereby waives any
right it might otherwise have (a) to offset any such obligation, liability or claim against Vista Del
Rio's obligations under the Loan Documents, or (b) to claim that the existence of any such
39
80A-115
outstanding obligation, liability or claim excuses the nonperformance by Vista Del Rio of any of
its obligations under the Loan Documents.
21.2 Notices. All notices, demands, approvals and other communications provided for
in the Loan Documents shall be in writing and be delivered to the appropriate party by personal
service or U.S. mail at its address as follows:
If to Vista Del Rio: Vista Del Rio Housing Partners, L.P.
c/o Foundation for Affordable Housing V, Inc.
30950 Rancho Viejo Road, Suite 100
San Juan Capistrano, CA 92675
Attention: Thomas E. Willard
Telephone: (949) 443-9101
Email: tom@ffah.org
If to City: City of Santa Ana
Executive Director (CDA/RDA)
20 Civic Center Plaza (M-37)
P .0. Box 1988
Santa Ana, California 92702
With a copy to: City/Attorney
City of Santa Ana
20 Civic Center Plaza, 7th Floor (M-29)
Santa Ana, California 92702
Addresses for notice may be changed as required by written notice to all other parties. All
notices personally served shall be effective when actually received. All notices mailed shall be
effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing
notwithstanding, the non-receipt of any notice as the result of a change of address of which the
sending party was not notified or as the result of a refusal to accept delivery shall be deemed
receipt of such notice.
21.3 Survival of Representations and Warranties. All representations and
warranties in the Loan Documents shall survive the making of the Loan(s) described herein and
have been or will be relied on by City notwithstanding any investigation made by either party.
21.4 No Third Parties Benefited. This Agreement is made for the purpose of setting
forth rights and obligations of Vista Del Rio and the Agency and City, and no other person shall
have any rights hereunder or by reason hereof.
21.5 Binding Effect; Assignment of Obligations. This Agreement shall bind, and
shall inure to the benefit of, Vista Del Rio and City and their respective successors and assigns.
Other than as expressly provided to the contrary in this Agreement, Vista Del Rio shall not
assign any of its rights or obligations under any Loan Document without the prior written
40
80A-116
consent of City, which consent may be withheld in City's sol' and absolute discretion. Any such
assignment without such consent shall, at Agency or City's option, be void.
21.6 Prior Agreements; Amendments; Consents. This Agreement (together with
the other Loan Documents) contains the entire agreement between the Agency, City and Vista
Del Rio with respect to the Loan(s) and the Property, and all prior negotiations, understandings
and agreements are superseded by this Agreement and such other Loan Documents. No
modification of any Loan Document (including waivers of rights and conditions) shall be
effective unless in writing and signed by the party against whom enforcement of such
modification is sought, and then only in the specific instance and for the specific purpose given.
21.7 Governing Law. All of the Loan Documents shall be governed by, and
construed and enforced in accordance with, the laws of the State of California and Federal law,
whichever is more stringent. Vista Del Rio irrevocably and unconditionally submits to the
jurisdiction of the Superior Court of the State of California for the County of Orange or the
United States District Court of the Central District of California, as City may deem appropriate,
in connection with any legal action or proceeding arising out of or relating to this Agreement or
the Loan Documents. Assuming proper service of process, Vista Del Rio also waives any
objection regarding personal or in rem jurisdiction or venue.
21.8 Severability of Provisions. No provision of any Loan Document that is held to
be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of
the Loan Documents are hereby declared to be severable.
21.9 Headings. Article and section headings are included in the Loan Documents for
convenience of reference only and shall not be used in construing the Loan Documents.
21.10 Conflicts. In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, this Agreement, unless otherwise expressly provided,
shall prevail; provided however that, with respect to any matter addressed in both such
documents, the fact that one document provides for greater, lesser or different rights or
obligations than the other shall not be deemed a conflict unless the applicable provisions are
inconsistent and could not be simultaneously enforced or performed.
21.11 Time of the Essence. Time is of the essence under this Agreement and in the
performance of every term, covenant, and obligation contained herein.
21.12 Conflict of Interest. No member, official or employee of the Agency or the City
shall have any direct or indirect interest in this Agreement, nor participate in any decision
relating to the Agreement which is prohibited by law.
21.13 Warranty Against Payment of Consideration. Vista Del Rio warrants that it
has not paid or given, and will not pay or give, any third person any money or other
consideration for obtaining this Agreement.
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21.14 Nonliability of City Officials and Employees. No member, official or
employee of City shall be personally liable to Vista Del Rio, or any successor in interest, in the
event of any default or breach by City or for any amount which may become due to Vista Del
Rio or successor, or on any obligation under the terms of this Agreement.
21.15 Plans and Data. Where Vista Del Rio does not proceed with the work and
Construction of the Property, and when this Agreement is terminated with respect thereto for any
reason, Vista Del Rio shall deliver to City any and all plans and data concerning the Property,
and City or any person or entity designated by City shall have the right to use such plans and
data without compensation to Vista Del Rio. Such right of City shall be subject to any right of
the preparer of the plans to their use.
21.16 Authority to Enter Agreement. Each undersigned represents and warrants that its
signature hereinbelow has the power, authority and right to bind their respective parties to each of
the terms of this Agreement, and shall indemnify the Agency and City fully, including reasonable
costs and attorney's fees, for any injuries or damages to City in the event that such authority or
power is not, in fact, held by the signatory or is withdrawn.
21.17 Subsequent Approvals. Except where otherwise indicated, all subsequent
approvals identified in this Agreement, other than approvals by the City Council of the City of
Santa Ana, shall not be unreasonably withheld, delayed or conditioned.
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80A-118
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on
the date set forth at the beginning of this Agreement.
ATTEST:
Patricia E. Healy
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
THE CITY OF SANTA ANA
By:
David N. Ream
City Manager
VISTA DEL RIO HOUSING PARTNERS, L.P.,
a California limited partnership
By: Foundation for Affordable Housing V, Inc.
A California nonprofit public benefit corporation
Managing General Partner
By:
Deborrah A. Willard
President
43
Benjamin Kaufman
Chief Assistant City Attorney
80A-119
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Real property in the City of Santa Ana, County of Orange, State of California, described as follows:
IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF THE
NORTHEAST QUARTER OF SECTION 2, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE
RANCHO LAS BOLSAS, AS PER MAP RECORDED IN BOOK 51, PAGE 12 OF MISCELLANEOUS
MAPS, RECORDS OF SAID COUNTY, AS DESCRIBED IN A DEED TO THE NEWBERT
PROTECTION DISTRICT, RECORDED OCTOBER 16, 1919 IN BOOK 339 PAGE 382 OF DEEDS
IN THE OFFICE OF SAID COUNTY RECORDER MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE MOST NORTHEASTERLY CORNER OF LOT 38 OF TRACT NO. 2887 AS
SHOWN ON A MAP FILED IN BOOK 117, PAGES 28 THROUGH 30, INCLUSIVE, OF
MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY, BEING ALSO THE WESTERLY
CORNER OF THAT CERTAIN STRIP OF LAND DEEDED TO THE CITY OF SANTA ANA ON
MAY 14, 2002 BY INSTRUMENT N0.20020400664 OF OFFICIAL RECORDS OF SAID COUNTY,
THE SOUTHERLY LINE OF SAID STRIP BEING A TANGENT CURVE, CONCAVE SOUTHERLY
AND HAVING A RADIUS OF 867.00 FEET, THENCE SOUTHEASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 10° 23' 48", AN ARC LENGTH OF 157.32 FEET TO THE
END OF SAID CURVE; THENCE SOUTH 69° 55' 32" EAST A DISTANCE OF 77.35 FEET ALONG
THE SOUTHERLY LINE OF SAID STRIP; THENCE DEPARTING SAID SOUTHERLY LINE ON A
COURSE BEARING SOUTH 20° 04' 28" WEST A DISTANCE OF 7.00 FEET; THENCE NORTH
69° 55' 32" WEST A DISTANCE OF 28.00 FEET; THENCE SOUTH 62° 04' 28" WEST A
DISTANCE OF 13.38 FEET; THENCE SOUTH 14° 04' 28" WEST A DISTANCE OF 36.00 FEET;
THENCE SOUTH 40° O1' 11" EAST A DISTANCE OF 27.44 FEET; THENCE SOUTH 25° 35' 43"
EAST A DISTANCE OF 29.37 FEET TO THE BEGINNING OF ANON-TANGENT CURVE,
CONCAVE SOUTHWESTERLY, HAVING A RADIAL BEARING OF SOUTH 39° 52' 08" WEST
AND A RADIUS OF 42.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 50° 45' 00" AN ARC LENGTH OF 37.20 FEET TO THE END OF SAID
CURVE; THENCE ALONG A LINE TANGENT TO SAID CURVE SOUTH 00° 37' 08" WEST A
DISTANCE OF 140.00 FEET; THENCE SOUTH 89° 22' S2" EAST A DISTANCE OF 14.00 FEET TO
A POINT ON THE NORTHWESTERLY LINE OF "PARCEL 1" OF A DOCUMENT RECORDED IN
BOOK 9034, PAGE 417, OFFICIAL RECORDS OF SAID COUNTY; THENCE SOUTH 26° 53' 03"
WEST A DISTANCE OF 534.66 FEET ALONG THE NORTHWESTERLY LINE OF SAID "PARCEL
1" TO A POINT ON THE EASTERLY LINE OF SAID TRACT 2887; THENCE NORTH 0° 37' 08"
EAST ALONG SAID EASTERLY LINE A DISTANCE OF 802.28 FEET TO THE POINT OF
BEGINNING.
The area of the described land consisting of 2.740 acres, more or les
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80A-120
EXHIBIT B
AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY
45
80A-121
EXHIBIT C
CITY/HOME LOAN DEED OF TRUST
FREE RECORDING REQUESTED PURSUANT
TO GOVERNMENT CODE SECTION 27383
When Recorded Mail to:
City of Santa Ana -Community Development Agency
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, California 92702
Attn: Executive Director
DEED OF TRUST
AND ASSIGNMENT OF RENTS
THIS DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust")
made this day of 20, among Vista Del Rio, a California limited
partnership (the "Trustor"), First American Title Insurance Company, a California
corporation, (the "Trustee"), and the City of Santa Ana, a charter city and municipal
corporation duly organized and existing under the Constitution and laws of the State of
California (the "Beneficiary").
Trustor, in consideration of the promises herein recited and the trust herein created,
irrevocably grants, transfers, conveys and assigns to Trustee, intrust, with power of sale, the
property located in the City of Santa Ana, County of Orange, State of California, described
in the attached Exhibit A and more commonly known 1600 West Memory Lane, Santa Ana,
California (the "Property");
TOGETHER with all the improvements now or hereafter erected on the property,
and all easements, rights, appurtenances and all fixtures now or hereafter attached to the
Property, all of which, including replacements and additions thereto, shall be deemed to be
and remain a part of the Property covered by this Deed of Trust;
TOGETHER with the right, power and authority during the continuance of these
Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the
right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of
Trust or in the performance of any agreement under this Deed of Trust, to collect and retain
these rents, issues and profits as they become due and payable; and,
TOGETHER with all articles of personal property or fixtures now or hereafter
attached to or used in and about the building or buildings now erected, or hereafter to be
erected, on the Property which are necessary to the complete and comfortable use and
occupancy of such building or buildings for the purposes for which they were or are to be
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80A-122
erected, including all other goods and chattels and personal property as are ever used or
furnished in operating a building, or the activities conducted therein, similar to the one
herein described and referred to, and all renewals or replacements thereof or articles in
substitution therefore, whether or not the same are, or shall be attached to said building or
buildings in any manner; and all of the foregoing, together with the Property, is herein
referred to as the "Security";
To have and to hold the Security together with acquittances to the Trustee, its
successors and assigns forever;
TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a
promissory note to the Beneficiary executed by Trustor, dated , 20_, in the
principal amount of Five Hundred Thousand Dollars and 00 cents ($500,000.00) (the
"HOME Loan"); (b) the performance of the covenants and agreements of Borrower
contained in the HOME Loan Agreement recorded with the County of Orange as Document
No. and the Disposition and Development Agreement dated July 20, 2009
("DDA"); and (c) the payment of all other sums, with interest thereon, advanced in
accordance herewith to protect the security of this Deed of Trust; and the performance of the
covenants and agreements of Trustor contained herein.
TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS:
1. The HOME Loan Program. This Deed of Trust is executed and delivered,
along with the Promissory Note, pursuant to and in implementation of the 41 unit special
needs affordable apartment project in the aforementioned HOME Loan Agreement and
DDA entered into by and between the Beneficiary and Trustor, to benefit the Property, a
copy of which is on file as a public record with the Beneficiary. Trustor acknowledges that
but for the execution of this Deed of Trust, the Beneficiary would not enter into the
Promissory Note secured by this Deed of Trust.
2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and
has the right to grant and convey the Security; that other than this Deed of Trust, the
Security is not encumbered except for obligations secured by deeds of trust, or any other
security agreement, to secure financing or refinancing for the purchase and rehabilitation of
the Property.
3. Repayment of the Loan. Trustor will promptly repay, when due, the
principal and interest, if any, as required by the Promissory Note secured by this Deed of
Trust.
4. Subordination. This obligation secured by this Deed of Trust shall be
subordinated to any and all obligations secured by deeds of trust, or any other security
agreement, to secure financing or refinancing for the purchase and rehabilitation of the
Properly.
5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform
all of Trustor's obligations under any mortgage, deed of trust or other security agreement
with a lien which has priority over this Instrument, including Trustor's covenants to make
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payments when due. Trustor will pay all taxes, assessments and other charges, fines and
impositions attributable to the Security which may attain a priority over this Deed of Trust,
by Trustor making any payment, when due, directly to the payee thereof. Trustor will
promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in
the event Trustor makes payment directly, Trustor will promptly discharge any lien which
has priority over this Deed of Trust; provided that Trustor will not be required to discharge
the lien of the Deed of Trust securing any senior lender or any other lien described in this
paragraph so long as Trustor will agree in writing to the payment of the obligation secured
by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such
lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent
the enforcement of the lien or forfeiture of the Security or any part thereof.
6. Hazard Insurance. Trustor will keep the Security insured by such insurance
policies in such amounts and for such periods as called for in the Agreement. All insurance
policies and renewals thereof will include a standard mortgagee clause with standard
lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their
interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall
have the right to hold, or cause its designated agent to hold, the policies and renewals
thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the
original insurance policies or certificates of insurance, all renewal notices and all receipts of
paid premiums. In the event of loss, Trustor will give prompt notice to the insurance carrier
and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may
make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days'
advance notice of cancellation of any insurance policies required under this Section.
Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds,
subject to the rights of any senior lender, will be applied to restoration or repair of the
Security damaged, provided such restoration or repair is economically feasible and the
security of this Deed of Trust is not thereby impaired. If such restoration or repair is not
economically feasible or if the security of this Deed of Trust would be impaired, again,
subject to the rights of any senior lender, the insurance proceeds will be used to repay the
grant under this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is
abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated
agent within 30 days from the date notice is mailed by either of them to Trustor that the
insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its
designated agent, is authorized to collect and apply the insurance proceeds at the
Beneficiary's option either to restoration or repair of the Security or to repay the loan.
If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in
and to any insurance policy and in and to the proceeds thereof resulting from damage to the
Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums
secured by this Deed of Trust immediately prior to such sale or acquisition subject to the
rights of any senior lender.
7. Preservation and Maintenance of Security. Trustor will keep the Security in
good repair and will not commit waste or permit impairment or deterioration of the Security.
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8. Protection of the Beneficiary's Security. If Trustor fails to perform the
covenants and agreements contained in this Deed of Trust or if any action or proceeding is
commenced which materially affects the Beneficiary's interest in the Security, including, but
not limited to, default under this Deed of Trust securing any senior lender, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or
decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may
make such appearances, disburse such sums and take such action as it determines necessary
to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable
attorneys' fees and entry upon the Security to make repairs.
Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest
thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless
Trustor and the Beneficiary agree to other terms of payment, such amount will be payable
upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear
interest from the date of disbursement at the rate payable from time to time on outstanding
principal under the Promissory Note unless payment of interest at such rate would be
contrary to applicable law, in which event such amounts will bear interest at the highest rate
permissible under applicable law. Nothing contained in this paragraph will require the
Beneficiary to insure any expense or take any action hereunder.
9. Inspection. The Beneficiary may make, or cause to be made, reasonable
entries upon and inspections of the Security during normal business hours; provided that the
Beneficiary will give Trustor reasonable notice of inspection.
10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the
Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any
such right or remedy. The procurement of insurance or the payment of taxes or other liens
or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the
maturity of the indebtedness secured by this Deed of Trust.
11. Remedies Cumulative. All remedies provided in this Deed of Trust are
distinct and cumulative to any other right or remedy under this Deed of Trust or any other
document, or afforded by law or equity, and may be exercised concurrently, independently
or successively.
12. Successors and Assigns Bound. The covenants and agreements herein
contained shall bind, and the rights hereunder shall inure to, the respective successors and
assigns of the Beneficiary and Trustor subj ect to the provisions of this Deed of Trust.
13. Joint and Several Liability. All covenants and agreements of Trustor shall be
joint and several.
14. Notice. Except for any notice required under applicable law to be given in
another manner, (a) any notice to Trustor provided for in this Deed of Trust will be given by
certified mail, return receipt requested, addressed to Trustor at ,and
(b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to
the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702,
Attention: CDA, or at such other address as the Beneficiary may designate by notice to
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Trustor as provided above. Notice shall be effective as of the date received by the
Beneficiary as shown on the return receipt.
15. Governing Law. This Deed of Trust shall be governed by the laws of the
State of California.
16. Severability. In the event that any provision or clause of this Deed of Trust
or the Promissory Note conflicts with applicable law, such conflict will not affect other
provisions of this Deed of Trust or the Promissory Note which can be given effect without
the conflicting provision, and to this end the provisions of the Deed of Trust and the
Promissory Note are declared to be severable.
17. Captions. The captions and headings in this Deed of Trust are for
convenience only and are not to be used to interpret or define the provisions hereof.
18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or
agreement of Trustor in this Deed of Trust or the Promissory Note secured by this Deed of
Trust, including, but not limited to, the covenants to pay, when due, any sums secured by
this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust
immediately due and payable by delivering to Trustor notice thereof specifying: (1) The
breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the
date the notice is received by Trustor as shown on the return receipt, by which such breach
is to be cured provided, however, that if such default is not reasonable susceptible to being
cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as
Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such
breach on or before the date specified in the notice may result in acceleration of the sums
secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor
of Trustor's right to reinstate after acceleration and the right to bring a court action to assert
the non-existence of default or any other defense of Trustor to acceleration and sale.
If the breach is not cured on or before the date specified in the notice or such longer
period as provided above, the Beneficiary, at the Beneficiary's option, may: (a) declare all
of the sums secured by this Deed of Trust to be immediately due and payable without
further demand and may invoke the power of sale and any other remedies permitted by
California law; (b) either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its
security, enter upon the Security and take possession thereof (or any part thereof) and of any
of the Security, in its own name or in the name of the Trustee, and do any acts which it
deems necessary or desirable to preserve the value or marketability of the Property, or part
thereof or interest therein, increase the income therefrom or protect the security thereof. The
entering upon and taking possession of the Security shall not cure or waive any breach
hereunder or invalidate any act done in response to such breach and, notwithstanding the
continuance in possession of the Security, the Beneficiary shall be entitled to exercise every
right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach,
including the right to exercise the power of sale; (c) commence an action to foreclose this
Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants
hereof; (d) deliver to the Trustee a written declaration of default and demand for sale,
pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et
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seg., as amended from time to time; or (e) exercise all other rights and remedies provided
herein, in the instruments by which Trustor acquires title to any Security, or in any other
document or agreement now or hereafter evidencing, creating or securing all or any portion
of the obligations secured hereby, or provided by law.
The Beneficiary shall be entitled to collect all reasonable costs and expenses
incurred in pursuing the remedies provided in this paragraph, including, but not limited to,
reasonable attorneys' fees.
19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration
of the sums secured by this Deed of Trust, Trustor will have the right to have any
proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time
prior to 5 days before sale of the Security pursuant to the power of sale contained in this
Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a)
Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and
no acceleration under the Promissory Note has occurred; (b) Trustor cures all breaches of
any other covenants or agreements Trustor contained in this Deed of Trust and the
Covenants; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the
Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of
Trust and the Covenants, and in enforcing the Beneficiary's and the Trustee's remedies,
including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as
the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the
Beneficiary's interest in the Security and Trustor's obligation to pay the sums secured by this
Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this
Deed of Trust and the obligations secured hereby will remain in full force and effect as if no
acceleration had occurred.
20. Acceptance by Trustee. Trustee accepts this Trust when this Deed, duly
executed and acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party to this Deed of Trust of pending sale under any other deed of
trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party
unless brought by Trustee.
21. Reconveyance. Upon payment or forgiveness of all sums secured by this
Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will
surrender this Deed of Trust and the Promissory Note to the Trustee. The Trustee will
reconvey the Security without warranty and without charge to the person or persons legally
entitled thereto. Such person or persons will pay all costs of recordation, if any.
22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from
time to time remove the Trustee and appoint a successor trustee to any Trustee appointed
hereunder. The successor trustee will succeed to all the title, power and duties conferred
upon the Trustee herein and by applicable law.
23. Request for Notice. Trustor requests that copies of the notice of default and
notice of sale be sent to Trustor at the address set forth in Section 14 above.
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24. Nonrecourse Liability. Neither Trustor nor any general partner of Trustor
shall have any personal liability under the HOME Loan Agreement, Promissory Note, and
this Deed of Trust and any judgment, decree or order for payment of money obtained in any
action to enforce the obligation of Trustor to repay the loan evidenced by such documents
shall be enforceable against Trustor only to the extent of Trustor's interest in the Property.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date
first written above.
"Trustor"
Dated:
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
VISTA DEL RIO
a California limited partnership
By:
"Beneficiary"
CITY OF SANTA ANA
By:
Its:
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EXHIBIT D
CITY/HOME PROMISSORY NOTE
PROMISSORY NOTE
(secured by Deed of Trust)
[City/HOME Loan]
Santa Ana, California
$500,000.00
1. FOR VALUE RECEIVED, the undersigned, VISTA
DEL RIO, a California limited partnership (the "Owner") promises to pay to
the CITY OF SANTA ANA, a charter city and municipal corporation duly
organized and existing under the Constitution and laws of the State of
California ("City"), at 20 Civic Center Plaza, Santa Ana, California, 92701,
or such other location as the holder hereof may designate, the principal sum
of Five Hundred Thousand Dollars and No Cents ($500,000.00) plus
accrued interest at three percent (3%) per annum, in accordance with the
terms of that certain HOME Loan recorded with the County of Orange as
Document No. for the property located at 1600 Memory Lane,
and DDA, This Note is secured by a Deed of Trust of even date herewith
("Trust Deed").
2. This Note shall accrue interest at the rate of three
percent (3%) per annum on the initial principal balance only from the
recordation of the HOME Loan Agreement until forgiven or repaid. No
payments will be required prior to the Conditional Loan coming due as
provided above. If a Certificate of Compliance is not issued within the time
provided for in the HOME Loan Agreement, this Note, together with
accrued interest, shall immediately become due and payable in full.
3. The Owner waives presentment for payment, demand,
protest, and notices of dishonor and of protest; the benefits of all waivable
exemptions; and all defenses and pleas on the ground of any extension or
extensions of the time of payment or of any due date under this Note, in
whole or in part, whether before or after maturity and with or without notice.
The Owner hereby agrees to pay all costs and expenses, including
reasonable attorney's fees, which may be incurred by the holder hereof in the
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enforcement of this Note, the Trust Deed or any term or provision of either
thereof.
"Owner"
Dated:
VISTA DEL RIO, a
a California limited partnership
By:
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
CITY OF SANTA ANA
By:
Its:
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EXHIBIT E
PROJECT BUDGET
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EXHIBIT F
MARKETING PLAN
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RESOLUTION NO. 2009-xxx
A RESOLUTION OF THE CITY COUNCIL OF SANTA ANA
MAKING CERTAIN FINDINGS WITH RESPECT TO THE
CONSIDERATION TO BE RECEIVED BY THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA
PURSUANT TO A DISPOSITION AND DEVELOPMENT
AGREEMENT BETWEEN THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF SANTA ANA, AND VISTA DEL RIO
HOUSING PARTNERS, L.P., A CALIFORNIA LIMITED
PARTNERSHIP, FOR THE SALE OF CERTAIN REAL PROPERTY
IN THE MERGED PROJECT AREA, AND APPROVING THE SALE
OF SAID REAL PROPERTY UPON THE TERMS AND
CONDITIONS CONTAINED IN THAT AGREEMENT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA, AS
FOLLOWS:
Section 1: The City Council of the City of Santa Ana hereby finds, determines and
declares as follows:
A. The Community Redevelopment Agency of the City of Santa Ana
(hereinafter referred to as the "Agency") is engaged in activities necessary
to execute and implement the Redevelopment Plan for the Merged Project
Area, in the sub-area formerly known as the Bristol Project Area ("the
Redevelopment Plan").
B. In order to implement the Redevelopment Plan, the Agency has
agreed, subject to the approval of this Council, to sell certain real property in
the Project Area, pursuant to the terms and provisions of a Disposition and
Development Agreement (hereinafter referred to as the "Agreement")
between the Agency and Vista Del Rio, L.P., a California limited
partnership, which is attached to the Request for Council/Agency Action
submitted in conjunction with this Resolution, in which said Site, commonly
known as 1600 West Memory Lane, Santa Ana, California and consisting of
approximately 2.740 acres, is further described. This Request for
Council/Agency Action and its attachments dated July 20, 2009 are
incorporated herein by this reference as though fully set forth.
C. The Agreement contains all of the provisions, terms, conditions and
obligations required by the state and local laws.
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D. Vista Del Rio, L.P., a California limited partnership, possess the
qualifications and financial resources necessary to acquire and insure
development of the Site, in accordance with the purpose and objectives of
the Redevelopment Plan.
E. In accordance with the California Environmental Quality Act, a
negative declaration has been approved by the City Council for this
project.
F. Pursuant to the provisions of the California Redevelopment Law, the
Agency and the City Council have held a duly noticed joint public hearing on
the proposed sale of the Site pursuant to the Agreement. The City Council
has considered all evidence submitted, both oral and written, as has been
fully advised prior to adoption of this Resolution.
Section 2. The City Council has considered all terms and conditions of the
proposed sale and hereby finds and determines that the sale and the redevelopment of
the Site pursuant to the Agreement is the best interests of the City of Santa Ana and the
health, safety and welfare of its residents, and is in accord with the public purpose and
provisions of the applicable state and local laws.
Section 3. The City Council hereby finds and determines that the consideration
for the sale of the Site pursuant to the Disposition and Development Agreement is not
less than the fair reuse value of the Site determined in accordance with the covenants
and conditions governing the sale.
Section 4. The sale of the Site by the Agency to Vista Del Rio, L.P., a California
limited partnership, upon the terms and conditions contained in the Agreement is hereby
approved.
Section 5. The City Manager or designee is authorized to accept deeded title to
the approximately 0.465 acres owned by the Agency immediately adjacent to the project
that are to be transferred to the City of Santa Ana to be improved and maintained by the
City for open space and park purposes.
Section 6. The Clerk of the Council shall attest to and certify the vote adopting
this Resolution.
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ADOPTED this day of , 2009.
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES: Councilmembers:
NOES: Councilmembers:
ABSTAIN: Councilmembers:
NOT PRESENT: Councilmembers:
CERTIFICATION OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of Council, do hereby attest to and certify the attached
Resolution No. to be the original resolution adopted by the City Council
of the City of Santa Ana on
Date:
Clerk of Council
City of Santa Ana
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