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HomeMy WebLinkAbout25G - AGMT - INCLUSIONARY HOUSING 1206 N HARBORREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 17, 20'15 TITLE: INCLUSIONARY HOUSING AGREEMENT WITH C &C N. HARBOR, LLC FOR A NEW MIXED USE DEVELOPMENT AT 1208 NORTH HARBOR BOULEVARD — (STRATEGIC PLAN NOS. 3,2; 3,5; 5, 3; 5, 4) -1 CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 0 =10..r F ❑ As Recommended ❑ As Amended ❑ Ordinance on 1� Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Bearing For CONTINUED TO FILE NUMBER Approve an Inclusionary Housing Agreement with C &C N. Harbor, LLC and the payment of an in- lieu fee for a mixed -use development. CITY COUNCIL ACTION On February 3, 2015, the City Council affirmed the Planning Commission's action approving Vesting Tentative Tract Map No. 2014 -01 to allow a subdivision for individual lots and condominiums for a mixed -use commercial and residential project consisting of 15 live /work units and 95 single - family detached homes at 1205 North Harbor Boulevard in the Harbor Mixed Use Transit Corridor (SP2) zoning district. DISCUSSION The applicant proposes a subdivision in conjunction with a 110 -unit mixed -use development consisting of 15 live /work units and 95 single - family residences. In addition to the action taken by the Planning Commission, the applicant is proposing to satisfy the Housing Opportunity Ordinance (HOO) by payment of an in -lieu fee. The H00 allows payment of a fee if substantial evidence supports that the cost of providing inclusionary units on -site would substantially exceed the amount of the in -lieu fee. The amount of the fee is based on the affordability gap associated with fulfilling the required affordable housing units on -site within the development. A calculation was performed to determine the fee amount. The fee calculation is based on the affordability gap of $91,000 per three - bedroom unit (8 units) and $83,000 per four - bedroom unit (9 units). Together, these gaps result in a total in -lieu fee of $1,475,000 to be paid prior to issuance of a building permit for any portion of the project. Staff and the applicant have evaluated the request and determined that including affordable units in an urban infill project such as the subject site could be more expensive than paying the in -lieu fee. The in -lieu fee is measured solely off the affordability gap between the market sale price and the restricted moderate - income sale price (Exhibit 1). 25G -1 Inclusionary Housing Plan and Agreement February 17, 2015 Page 2 The affordability gap is a good measurement of the impact of the inclusionary requirements. In this case, the cost to provide the Inclusionary units on -site exceeds the amount of the in -lieu fee for providing the units on -site. Approval of the in -lieu fee will allow for the construction of a new mixed -use multi - family project on a 7.6 -acre site located in the Harbor Mixed Use Transit Corridor Specific Plan area (SP -2). STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal No. 3 Economic Development, Objectives No. 2 (create new opportunities for business /job growth and encourage private development through new General Plan and Zoning Ordinance policies) and No. 5 (leverage private investment that results in tax base expansion and job creation citywide) of the Santa Ana Strategic Plan. Moreover, approval of this item supports Goal No. 5 Community Health, Livability, Engagement & Sustainability, Objectives No. 3 (facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods) and No. 4 (support neighborhood vitality and livability). FISCAL IMPACT Funds received will be deposited into the Inclusionary Housing Fund account (No. 41718002- 57896). Vince Fregos , AICP / Interim Executf erector Planning & Building Agency 0 Kelly Re der Executiv Director Community Development Agency APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez s� Executive Director Finance & Management Services Agency AP:rb epWARopons Staff Reports for COWTTM14,01 In Lieu Fee C &C North Harbor Dovt.cc Exhibit: 1. Inclusionary Housing Agreement 25G -2 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO, City of Santa Ana 20 Civic Center Plaza Santa Ana, California 82702 Attention: City Clerk To be recorded without fee, (Space Above This Line For Recorder's Use Only) (Government Code, §§ 6103 and 27383) INCLUSIONARY HOUSING AGREEMENT THIS INCLUSIONARY HOUSING AGREEMENT is dated as of , 2015, by and between the CITY OF Santa Ana, a charter city and California municipal corporation, and C &C N. Harbor, LLC a California limited liability company ( "Developer'). 1x0 III rM W A, The City's Inclusionary Housing Ordinance ( "Ordinance ") became effective on November 28, 2011. B. The Developer is the fee owner of the Property located at 1206 -1310 N. Harbor Boulevard, Santa Ana, California. C. The Developer desires to, at the Developer's sole cost and expense, develop a one - hundred and ten (I 10) unit Project on the Property. D. On February 3, 2015, the City Council approved Ordinance /Resolution Number 2015 -02, which sets forth the City Approvals for the Project. E. On February 17, 2015, the Santa Ana City Council reviewed and approved an Inclusionary Housing Plan that was prepared by the Developer in accordance with the requirements imposed by the Ordinance and the Administrative Procedures Manual established by the City Council to implement the Ordinance requirements. Inclusionary Housing Agreement Page 1 City of Santa Ana February 17, 2015 1603 \14 \1654522.'2 25G-3 F. Pursuant to Santa Ana Municipal Code section 41- 1904(c)(2), any application to pay a fee in lieu of constructing some or all of the required inclusionary units for a project comprised of more than twenty residential units shall be subject to the review and approval of the City Council, which may grant such request if substantial evidence supports a finding that the cost of providing inclusionary units on site would substantially exceed the amount of the applicable in -lieu fee. G. This Inclusionary Housing Agreement, when fully executed by the City and the Developer and recorded, is intended to satisfy the requirement that the Developer enter into an Inclusionary Housing Agreement, as set forth in the Ordinance and the conditions to City Approvals. NOW, THEREFORE, in consideration of the mutual promises set forth in this Inclusionary Housing Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the City and the Developer, the Parties, agree as follows: DEFINITIONS OF TERMS The following words, terms and phrases are used in this Inclusionary Housing Agreement, as follows, unless the particular context of usage of a word, term or phrase requires another interpretation. Administrative Procedures Manual is this administrative procedures manual, which has been prepared by the City for the implementation and enforcement of the Ordinance. A copy of the Administrative Procedures Manual shall be maintained on file with the City, and shall be provided to the Developer. Affordability Gap is equal to the difference between the Fair Market Value of the Inclusionary Unit and the Affordable Sales Price for the Inclusionary, Unit. Affordable Housing Cost means the maximum costs that can be borne by a Low or Moderate Income Household based on the requirements imposed by HSC Section 50052.5. The calculation methodology is described in the Administrative Procedures Manual. Incluslonary Housing Agreement Page 2 City of Santa Ana February 17, 2015 1603 \14 \1654522.2 25G -4 California Health and Safety Code ( "HSC ") provides definitions of household income and affordable housing costs that are used in this Inclusionary Housing Agreement. City means the City of Santa Ana, California. City Approvals are defined as the entitlement approvals and the Inclusionary Housing Plan that must be approved by the City Council prior to the issuance of building permits for the Project. City Council means the City of Santa Ana City Council. City Manager is the City Manager of the City of Santa Ana. Default means the failure of a Party to perform any action or covenant required by this Inclusionary Housing Agreement within the time period provided herein following notice and opportunity to cure, as set forth in Article 3 — Section 1 of this Inclusionary Housing Agreement. Developer means the developer of the residential project that is subject to this Inclusionary Housing Agreement and its successors and assigns. Effective Date means the date on which the Inclusionary Housing Agreement is approved and executed by appropriate authorities of the Developer and the City; and the Inclusionary Housing Agreement is executed by the authorized representatives of the City and delivered to the Developer. Exhibits means the exhibits to this Inclusionary Housing Agreement, which are listed in Article V. Fair Market Value means the value of the Inclusionary Unit under normal circumstances in which the seller and the buyer freely negotiate the terms of the transfer of ownership. The Fair Market Value is estimated based on the assumption that no income or affordability restrictions are placed on the Inclusionary Unit. Gross Income means all income from whatever source from all adult household members for the previous calendar year as defined in California Code of Regulations Title 26 Housing and Community Development Section 6914. The definition includes the following specific requirements: Inclusionary Housing Agreement Page 3 City of Santa Ana February 17, 2015 1603 \14 \1654522.2 25G-5 1. Except as provided in subdivision (2), all payments from all sources received by the head of household (even if temporarily absent) and each additional member of the household who is not a minor shall be included in the annual income of a household. Gross Income shall include, but not be limited to: a� The gross amount, before any payroll deductions, of wages and salaries, overtime pay, commissions, fees, tips and bonuses; b. The net income from operation of a business or profession or from rental or real or personal property (for this purpose, expenditures for business expansion or amortization of capital indebtedness shall not be deducted to determine the net income from a business); C. Interest and dividends; d. The full amount of periodic payments received from social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of periodic receipts (but see subdivision (2)(c)); e, Payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay. f. Public Assistance. If the public assistance payment includes an amount specifically designated for shelter and utilities which is subject to adjustment by the public assistance agency in accordance with the actual cost of shelter and utilities, the amount of public assistance income to be included as income shall consist of: The amount of the allowance or grant exclusive of the amount specifically designated for shelter and utilities, plus H. The maximum amount which the public assistance agency could in fact allow for the household for shelter and utilities, g. Periodic and determinable allowances such as alimony and child support payments, and regular contributions or gifts received from persons not residing in the dwelling; IndU5lenary Housing Agreement Page 4 City of Santa Ana February 17, 2015 160311411654522.2 25G-6 h. All regular pay, special pay and allowances of a member of the Armed Forces (whether or not living in the dwelling) who is head of the household or spouse (but see subdivision (2)(e)). i. Where a household has net assets in excess of $5,000, income shall include the actual amount of income, if any, derived from all of the net household assets or 10 percent (10 %) of the value of all such assets, whichever is greater. For purposes of this section, net households assets means value of equity in real property other than the household's full -time residence, savings, stocks, bonds, and other forms of capital investment. The value of necessary items such as furniture and automobiles shall be excluded. 2. The following items shall not be considered as income: a. Casual, sporadic or irregular gifts; b. Amounts which are specifically for or in reimbursement of the cost of medical expenses; C. Lump -sum additions to household assets, such as inheritances, Insurance payments (including payments under health and accident insurance and worker's compensation), capital gains and settlement for personal or property losses; d. Amounts of educational scholarships paid directly to the student or to the educational institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees, books and equipment. Any amounts of such scholarships, or payments to veterans not used for the above purposes of which are available for subsistence are to be included in income; e. The special pay to a serviceman head of a household away from home and exposed to hostile fire; f. Relocation payments made pursuant to federal, state, or local relocation law; g. Foster child care payments; Incluslonary Housing Agreement Page 5 City of Santa Ana February 17, 2015 1603 \14 \1654522,2 25G-7 h. The value of coupon allotments for the purchase of food pursuant to the Food Stamp Act of 1964 which is in excess of the amount actually charged the eligible household; I. Payments received pursuant to participation in the following volunteer programs under the ACTION Agency: National Volunteer Antipoverty Programs which include VISTA, Service Learning Programs and Special Volunteer Programs. ii. National Older American Volunteer Programs for persons aged 60 and over which include Retired Senior Volunteer Programs, Foster Grandparent Program, Older American Community Services Program, and National Volunteer Program to Assist Small Business Experience, Service Corps of Retired Executive (SCORE) and Active Corps of Executives (ACE). HCD means the California Department of Housing and Community Development HUD means the United States Department of Housing and Urban Development. Inclusionary Housing Administrator has the day -to -day authority for making determinations related to the Ordinance and Administrative Procedures Manual. The Inclusionary Housing Administrator will be appointed by the City Manager. Inclusionary Housing Fund means a separate fund of the City established pursuant to the Housing Opportunity Ordinance of the Santa Ana Municipal Code. The fund was established for the specific purpose of providing the City with funds to assist in the development of housing that is affordable to Low and Moderate Income Households. The allowable uses of Inclusionary Housing Funds, and the related reporting are described in the Administrative Procedures Manual. Inclusionary Housing Plan means an in -lieu fee submitted for approval to the Inclusionary Housing Administrator that details the manner in which the Inclusionary Housing obligations will be fulfilled by the project. The Inclusionary Housing Plan form is presented in the Administrative Procedures Manual. Inclusionary Housing Agreement Page 6 City of Santa Ana February 17, 2016 1603 \14 \16584622.2 25G-8 In -Lieu Fee refers to a fee that may be paid by a developer in specific circumstances in lieu of providing Inclusionary Units within a project. Orange County Median Income is calculated by HCD using non - aggregated census income data and applying trending factors for metropolitan statistical areas (MSA) throughout the country. The MSA for Santa Ana is Orange County. The current household income information is presented in Attachment I of the Administrative Procedures Manual. Low Income Household refers to households whose incomes meet the standards defined Title 25 of the California Code of Regulations Section 6932, and by the HSC Section 50079.5. The maximum household income amount for Low Income Households shall be the amount published by HCD as adjusted to reflect the household size of the Homebuyer of the Inclusionary Unit. Market Rate Unit means any unit in the project that is not restricted for ownership and occupancy by Eligible Purchaser. Moderate Income Household refers to households whose income meets the standards defined Title 25 of the California Code of Regulations Section 6932, and by the HSC Section 50093. The maximum household income amount for Moderate Income Households shall be the amount published by HCD as adjusted to reflect the household size of the Homebuyer of the Inclusionary Unit. Ordinance means the Housing Opportunity Ordinance adopted by the City Council on November 28, 2011 as it has been amended from time to time, which is codified in the Santa Ana Municipal Code, Party and Parties mean the City and the Developer as parties to this Inclusionary Housing Agreement. Project means the housing project proposed to be developed on the Property at the Developer's sole cost and expense. Property means the real property on which the Project is to be developed, for which the legal description is provided in Exhibit A to this Inclusionary Housing Agreement. ARTICLE 1 Inclusionary Housing Agreement Page 7 City of Santa Ana February 17, 2015 1603114 \1654522.2 25G-9 PARTIES; REPRESENTATIONS AND WARRANTIES; EFFECTIVE DATE; RECITALS; AND EXHIBITS I. Parties to the Inclusionary Housing Agreement I -A. City. The City is a charter city and California municipal corporation. The address of the City, for the purposes of this Inclusionary Housing Agreement, is: City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92702 Attention: Executive Director, Community Development Agency -B. Developer. The Developer is a California limited liability company. The principal office and address of the Developer, for the purposes of this Inclusionary Housing Agreement, is: C &C N. Harbor, LLC 14211 Yorba St., Ste. 200 Tustin, CA 92780 Attn: Todd Cottle II. Developer Representations And Warranties The representations and warranties of the Developer contained in Article 1 — Section II shall be based upon the actual knowledge of the Developer as of the Effective Date, and are true and correct as of the Effective Date, The Developer's liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Inclusionary Housing Agreement, shall survive the execution and delivery of the Inclusionary Housing Agreement. The Developer hereby makes the following representations, covenants and warranties, and Developer acknowledges that the execution of this Inclusionary Incluslonary Housing Agreement Page 8 City of Santa Ana February 17, 2015 1603 \14 \1654522.2 25G-10 Housing Agreement by the City has been made in material reliance by the City on such covenants, representations and warranties: II -A. The Developer is a California limited liability company, lawfully entitled to do business in the State of California and the City, The Developer has the legal right, power and authority to enter into this Inclusionary Housing Agreement and the instruments and documents referenced herein and to consummate the transaction contemplated hereby. The persons executing this Inclusionary Housing Agreement and the instruments referenced herein on behalf of the Developer hereby represent and warrant that such persons have the power, right and authority to bind the Developer. II -B. The Developer has taken all requisite action and obtained all requisite consents in connection with entering into this Inclusionary Housing Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required for the Developer's authorization to enter into this Inclusionary Housing Agreement. II -C. Neither the execution of this Inclusionary Housing Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument, or other obligation to which the Developer is a party or by which the Developer may be bound, or under any law, statute, ordinance, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to the Developer or to the Property. 11 -D. This Inclusionary Housing Agreement is, and all agreements, instruments and documents to be executed by the Developer pursuant to this Inclusionary Housing Agreement shall be duly executed by and are or shall be valid and legally binding upon the Developer and enforceable in accordance with their respective terms. III. Effective Date This Inclusionary Housing Agreement is dated , 2015 for reference purposes only. This Inclusionary Housing Agreement shall not go into effect before the Effective Date. Incluslonary Housing Agreement Page 9 City of Santa Ana February 17, 2015 1603 \14 \1654522.2 25G-1 1 IV. Recitals The Recitals set forth above are true and correct. The Recitals are incorporated into this Inclusionary Housing Agreement in their entirety by this reference. V. Exhibit List The following is a list of the exhibits attached to this Inclusionary Housing Agreement. Each of the exhibits is incorporated by reference into the text of this Inclusionary Housing Agreement. Exhibit A Legal Description of Property Exhibit B Site Map Depicting Property and Zoning Designations Exhibit C Calculations of In -Lieu Fee (Inclusionary Housing Plan) ARTICLE 2 INCLUSIONARY HOUSING COVENANTS V1. Developer Compliance with the Ordinance The Developer acknowledges that the City has provided the Developer with copies of the Ordinance and the Administrative Procedures Manual. The Developer is familiar with the requirements of all the foregoing documents and shall ensure that the Project complies with this Inclusionary Housing Agreement and the requirements set forth in all the foregoing documents. VII. In -Lieu Fee On February 17, 2015, the Santa Ana City Council approved Developer's application to pay a fee in lieu of constructing all of the required inclusionary units, based on substantial evidence supporting a finding that the cost of providing inclusionary units on site would substantially exceed the amount of the applicable in -lieu fee. Accordingly, in lieu of providing any Inclusionary Unit specified in the Inclusionary Housing Plan, the Developer shall pay to the City of Santa Ana the sum of Incluslonary Housing Agreement Page 10 City of Santa Ana February 17, 2015 1603114 \1654522.2 25G -12 $1,475,000.00 prior to obtaining the first building permit related to the Project. The final amount of the in -lieu fee is subject to change and will be based upon calculations completed at the time of payment, which must be completed before the issuance of any building permits for the Project. ARTICLE 3 DEFAULTS AND REMEDIES VIII. Default If either Party defaults with regard to any provision of this Inclusionary Housing Agreement, the non - defaulting Party shall serve written notice of such default upon the defaulting Party. If, after the service of written notice of such default, the defaulting Party does not cure such default within thirty (30) calendar days after service of the notice of default (or, if such cure reasonably takes longer than thirty (30) days, if such cure has not been commenced within the thirty (30) day period and is promptly completed within a reasonable time, not to exceed ninety (90) calendar days), the defaulting Party shall be in Default of the terms of the Inclusionary Housing Agreement, and shall be liable to the other Party for damages caused by such Default. Alternatively, the non - defaulting Party, at its option, may institute an action for specific performance of the terms of this Inclusionary Housing Agreement. IX. Legal 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 purposes of this Inclusionary Housing Agreement. IX -A. The laws of the State of California shall govern the interpretation and enforcement of this Inclusionary Housing Agreement. IX -B. In the event that any legal action is commenced by the Developer against the City, service of process on the City shall be made by personal service Inclusionary Housing Agreement Page 11 City of Santa Ana February 17, 2015 1603 \14 \1654522.2 25G-13 upon the City Manager, or in such other manner as may be provided by law. IX -C, In the event that any legal action is commenced by the City against the Developer, service of process shall be made by personal service on the Developer's designated agent at such address as may be specified in written notice to the City, or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. X. Rights and Remedies are Cumulative The rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party. ARTICLE 4 GENERAL PROVISIONS XI. Notices, Demands and Communications Between the Parties Any and all notices, demands or communications submitted by any Party to another Party pursuant to, or required by, this Inclusionary Housing Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, to the address of the City and Developer, as applicable, as designated in Article 1 — Section I of this Inclusionary Housing Agreement. Such written notices, demands and communications may be sent in the same manner to such other addresses as either Party may from time -to -time designate as provided in this Section. Any notice, demand or communication shall be deemed to be received by the addressee, on the day that it is personally delivered, if dispatched by messenger, or two (2) calendar days after it is placed in the United States mail. Inoluslonary Housing Agreement Page 12 City of Santa Ana February 17, 2015 1603 \74 \1654522.2 25G -14 XII. Conflict of Interest No council member, official, contractor, consultant, attorney or employee of the City having any conflict of interest, direct or indirect, related to this Inclusionary Housing Agreement, or in the development of the Property, shall participate in any decision relating to this Inclusionary Housing Agreement. The Parties represent and warrant that they do not have knowledge of any such conflict of interest. XIIh Nonliability of City or City Officials and Employees No council member, official, contractor, consultant, attorney or employee of the City shall be personally liable to the Developer, any voluntary or involuntary successors and assignees, or any lender or other party holding any interest in the Property, in the event of any default or breach by the City, or for any amount which may become due to the Developer or to its successors or assignees, or on any obligations arising under this Inclusionary Housing Agreement. XIV. Indemnification The Developer agrees to indemnify and hold the City, and its officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to any act or omission of the Developer in performing its obligations hereunder. The City agrees to indemnify and hold the Developer and its officers, employees and agents, harmless from and against all damages, judgments, costs expenses and fees arising from or related to any act or omission of the City in performing its obligations hereunder. XV. No Waiver Failure to insist upon strict compliance with any of the terms, covenants, conditions and restrictions hereof on any one occasion shall not be deemed a waiver of such term, covenant, condition or restriction. Any waiver or relinquishment of rights or powers hereunder at any one time or more times shall not be deemed a waiver or relinquishment of such other rights or powers at any other time or times. XVI. Jurisdiction and Venue Any legal action or proceeding concerning this Inclusionary Housing Agreement shall be filed and prosecuted in the appropriate State of California court in Inclusionary Housing Agreement Page 13 City of Santa Ana February 17, 2015 1603 \14 \1654522.2 25G-1 5 Orange County, California. Each Party hereto irrevocably consents to the personal jurisdiction of that court. The City and the Developer each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or jurisdiction, including without implied limitation, federal district court due to any of the following: A. Any diversity of citizenship between the City and the Developer; or B. The fact that the City is a party to such action or proceeding; or C. That a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the Developer and the City specifically waive any rights provided to it pursuant to California Code of Civil Procedure 394. The Developer acknowledges that the provisions of this Article 4 — Section XVI are material consideration to the City for its entry into this Inclusionary Housing Agreement, in that the City will avoid the potential cost, expense and inconvenience of litigating in a distant forum. XVIL Inspection of Books and Records To enforce its rights under this Inolusionary Housing Agreement, the City shall have the right at all reasonable times, at the City's cost and expense, to inspect the books and records of the Developer pertaining to the Property. Matters discovered by the, City shall not be disclosed to third parties unless required by law, or unless otherwise resulting from or related to the pursuit of any remedies or the assertion of any rights of the City hereunder. XVIIL Successors and Assigns This Inclusionary Housing Agreement shall be binding upon, and inure to the benefit of, the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. The rights of Developer under this Inclusionary Housing Agreement may not be transferred or assigned unless the written consent of the City Council is first obtained and any transfer or assignment of the rights under this Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this Agreement if the City grants written consent to transfer the rights. Incluslonary Housing Agreement Page 14 City of Santa Ana Fegruary 17, 2015 1603114 \1654522.2 25G -16 XIX. No Third Party Beneficiaries The performance of the City's and the Developer's respective obligations under this Inclusionary Housing Agreement are not intended to benefit any party other than the City or the Developer, except as expressly provided otherwise herein. No person or entity not a signatory to this Inclusionary Housing Agreement shall have any rights or causes of action against any Party to this Inclusionary Housing Agreement as a result of that Party's performance or non - performance under this Inclusionary Housing Agreement, except as expressly provided otherwise herein. XX. Entire Agreement This Inclusionary Housing Agreement integrates all of the terms and conditions mentioned herein or incidental hereto. This Inclusionary Housing Agreement supersedes all negotiations or previous agreement between the Parties with respect to all or any portion of the Property and the Project thereof. XXI. Recordation The Developer and the City agree to permit recordation of this Inclusionary Housing Agreement, or a memorandum of this Inclusionary Housing Agreement, against the Property in the Office of the County Recorder of Orange County, California. XXII. Termination This Inclusionary Housing Agreement shall be effective until all of the following have been completed: Payment has been received and funds deposited in accordance with Article 2, Section VII of this Inclusionary Housing Agreement. IN WITNESS WHEREOF, the Parties hereto have duly executed this Inclusionary Housing Agreement as of the dates set forth below. [Signatures on Following Pages] Inclusionary Housing Agreement Page 15 City of Santa Ana February 17, 2015 1603114 \1654522.2 25G-17 SIGNATURE PAGE TO INCLUSIONARY HOUSING AGREEMENT APPROVED AS TO LEGAL FORM: Citytorney City of Santa Ana CITY: CITY OF SANTA ANA A California Municipal Corporation 0 Name: Its: Date: Induslonary Housing Agreement Page 16 City of Santa Ana February 17, 2015 1603\14 \1654522.2 25G-18 SIGNATURE PAGE TO INCLUSIONARY HOUSING AGREEMENT DEVELOPER: C &C N. HARBOR, LLC, a California limited liability company LM- Todd R. Cottle, its member By: The Cottle Family Trust Dated 3/8/1987, its member M Barry A. Cottle, Trustee Date: Induslonary Housing Agreement Page 17 City of Santa Ana February 17, 2015 1603 \14 \1654522.2 25G-19 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THE SOUTH 152 FEET OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 10 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA. EXCEPTING THEREFROM AN UNDIVIDED 219 INTEREST IN THE PUMPING PLANT AND WELL LOCATED NEAR THE SOUTHEAST CORNER OF THE LAND ABOVE DESCRIBED AND CONVEYED BY C.A. WESTGATE AND FANNIE C. WESTGATE TO E.H. WATERS, A WIDOWER, BY DEED RECORDED DECEMBER 5, 1930 IN BOOK 437 PAGE 468 OF OFFICIAL RECORDS. SAID LAND IS SHOWN ON LICENSED SURVEYOR'S MAP FILED IN BOOK 19, PAGE 26 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. APN: 198- 043 -25 PARCEL A: THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE RANCHO LAS BOLSAS, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 12 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THE SOUTH 270.00 FEET. PARCEL B: THE WEST 20 FEET OF THE SOUTH 270 FEET OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE RANCHO LAS BOLSAS, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 12 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. APN: 198 - 011 -01, 198- 011 -03, 198 - 011 -02 Incluslonary Housing Agreement City of Santa Ana February 17, 2015 1603 \14 \1654522.2 2513-20 EXHIBIT B SITE MAP DEPICTING PROPERTY 3 EI 1 OdIG I i'e I�'# laa Y 1 et ... nslr� fP 1 �ad r 1�8! j�es 4i i�a �'. 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W � t p a s �� a Y€ ➢ ,p, e21i Y 9 p p uG'Yy� 998A y 4�t�il C b }� P F t S yi �"tQ {j342p y � i +y p3 NRNRNR SY # GYe Yn d 24 � Yh�cd $ 8 M �k in E1A° H k yam, i Q. axq�F s - al 9 1 11 4 q 8 B p t� 3�ItJ0 7NIVl3 to r P dod ��i Ayi t tlszile€ ?EiF?Ii�iPIi�F Inclusienary Mousing Agreement City of Santa Ana _� February 17, 2015 1603 \14\1654522.2 'OA IS ac E of 8 i s gE W � � 1 E Y pp t ii I^ it 4'eY %F % p 4i ii EGY xi 0 ff v NI' 45 ii ��n'= p t� 3�ItJ0 7NIVl3 to r P dod ��i Ayi t tlszile€ ?EiF?Ii�iPIi�F Inclusienary Mousing Agreement City of Santa Ana _� February 17, 2015 1603 \14\1654522.2 EXHIBIT C CALCULATIONS OF IN -LIEU FEE (INCLUSIONARY HOUSING FLAN) IN -UEU FEE CALCULATION OWNERSHIP PROJECTS -15 %MODERATE INCOME INCLUSIONARY REQUIREMENT HOUSING OPPORTUNTY ORDINANCE SANTA ANA, CAUFORNIA 1. Proioct Doscriotlon A. Project Name 6, Project Address 11. OS -Site JpgpslonaN reappraise A. Required Number of lbclusianary Units Total Project Units Inciusloeary, Requirement as %of Total Units Total incluslonary noun hament i Rpund•upj B. incluslonary Unit Distribution Two-bedroom Units Thre - hadraom Units four - bedroom Units Totals Total Building Area (Square Fast) III. Affordabllfty GOO /Unit Calculml. TmO bsedroom Units Three - bedroom Units Four - bedroom Units IV, Affordability Gap Calculation Two - bedroom Units Three- bedroom Urns Pour - bedroom Units Total Affordability Gap 1206 -1310 N Harbor 1206.1310 N Harbor Blvd 110 15% 17 Required 9 of Total Project lnclusionary, Unite %of Total Unless Units' 0,00% 0 49 44.55% 8 61 55,45% 9 110 100100% 17 205,952 Restriotod Price - Moderaie AffordablBty Gap/ Market Prices Incomes Unit $o $0 $0 $455,000 $364,000 $91,000 $415,000 $332,000 $83,000 Affordability incluslonary Total Affordability Gap/ Unit Units Gap $0 $0 $91AOO 8 $728,000 $83,000 9 $747,000 $1A75,GOn otal In -Ueu Fee' $1,475,000 Per Total Unit $13,400 Per Income Restricted Unit $86,800 Per Square root of Total Building Area $7.16 This column mustadd up to 100 %. I Multiply the% of Total Units times the Total incluslonary Requirement. Equal to the lesser of the defined Affordable Sales Price or 20% less than the projected Market Price. ° The Total lns LUou Fee is equal to the Total Affordability Gap. Prepared by Gty of 5anm Ana 9/25/3014 lnclusionary Housing Agreement City of Santa Ana February 17, 2015 1603 \14 \1654522.2 25G-22 INCLUSIONARY HOUSING PLAN OWNERSHIP PROJECT APPLICATION NUMBER: City of Santa Ana, Planning Division 20 Civic Center Plaza Santa Ana, California 92701 714.667.2700 Project Address: 1310 N Harbor Boulevard Assessor Parcel Number(s): 198- 011 -01, 198- 011 -03, 198 - 011 -02, 198 - 043 -25 Site Dimension and Square Footage: 7.6 acres 1206 -1226 N Harbor- C. J. Skirvin and Daisie Frances Skirvin Family Trust, dated January 28, 1981 Property Owner's Name: ,1310 N Harbor- C &C N Harbor, LLC Contact Person: Todd Cottle Email: todd @c- edev.com Work Telephone: Todd Cottle Street Address: City: Tustin 14211 Yorba St., Ste. 200 Mobile Phone: 714- 288 -7600 State: CA Zip: 92780 Applicant's Name: C &C N. Harbor, LLC and C &C Development Co., LLC Contact Person: Todd Cottle- Same as above Email: Work Telephone: Street Address: City: Inclusionary Housing Plan — Ownership Project Santa Ana, California Mobile Phone: State: 25G -23 Zip: August 11, 2014 INCLUSIONARY HOUSING ALTERNATIVES Select the applicable alternatives to indicate how the project will comply with the inclusionary housing requirement: On -site construction of inclusionary units X In -lieu fee payment for entire obligation In -lieu fee payment for fractional unit' Land dedication Note: Alternatives other than "on -site units" require City Council approval. PROJECT DESCRIPTION Describe the project in the following chart: Number of Bedrooms Unit Size (Square Feet.) Number of Market Rate Units Number of Moderate Income Units Total Number of Units Studio 1 2 3 1,771 -1,849 49 49 4 1,707 -2,024 61 61 5 ' If the calculation of the number of required inclusionary housing units results in a fraction, the developer has the option to (a) provide an additional inclusionary housing unit or (b) pay an In -Lieu Fee equal to the percentage represented by the fractional inclusionary housing unit multiplied by the applicable In -Lieu Fee. Inclusionary Housing Plan — Ownership Project Page 2 Santa Ana, California August 11, 2014 25G -24 Q B. C. III. A. B. C. Identify the gross livable area of the proposed project (including private balconies, decks and patios. Will the project be constructed in phases? Is a density bonus being requested in accordance with Municipal Code Section 41 -1600 223,248 square feet X Yes No Yes X No REQUIRED EXHIBITS TO THE INCLUSIONARY HOUSING PLAN A narrative description of the entire project; Attached A site plan that depicts the entire project (minimum 11" x 17 "); Attached A depiction of the location of the inclusionary housing units; and N/A D. If applicable, a phasing plan that provides for the proportionate number of the total inclusionary housing unit requirement to be built within each phase of the project. N/A Inclusionary Housing Plan — Ownership Project Santa Ana, California 25G -25 Page 3 August 11, 2014 IV. PROPERTY OWNER'S AFFIDAVIT I hereby certify that I am the legally authorized owner of all property involved in this application or have been empowered to sign as the property owner on behalf of a corporation, partnership, business, etc., as evidenced by separate instrument attached herewith. I herby grant to the applicant submitting this form full power to sign all documents related to this application, including any conditions or litigation measures as may be deemed necessary. I declare under penalty of perjury that the foregoing is true and correct. Executed on (Date) \� I %Zl I Property Owner's Signature _ at Tustin California Printed Name Todd Cottle, Authorized Signatory, C &C N Harbor, LLC * See attached authorization from C. J. Skirvin and Daisie Frances Skirvin Family V. APPLIC/ Trust, dated January 28, 1981 1 hereby certify that the statements furnished above and in the attached exhibits represent the data and information required for this initial evaluation and that the facts, statements and information presented are true and correct to the best of my knowledge and belief. Further, should the stated information be found false or insufficient, I agree to the return of this form for appropriate revisions, understanding the City of Santa Ana cannot process this form until all applicable information is corrected or provided by the applicant. I herby certify that I have been legally authorized by the property owner to present this application and to sign on behalf of all documents related to this application, including any conditions or litigation measures as may be deemed necessary. Note: When the applicant is a corporation, partnership, business, etc., a separate document verifying the authorization to sign for such applicant is required. I declare under penalty of perjury that the foregoing is true and correct. Executed on (Date) I at - CvS-GN California Applicant's Signature Applicant's Printed Name Todd Cottle, Authorized Signatory, C &C N Harbor, LLC Incluslonary Housing Plan — Ownership Project Page 4 Santa Ana, California August 11, 2014 25G -26 C &C N Harbor, LLC 14211 Yorba St., Suite 200 Tustin, CA 92780 November 12, 2014 RE: 1206 -1310 N Harbor Affordable Housing Plan Application To Whom It May Concern: The owner of record of parcel 198- 043 -25 is C &C N Harbor, LLC and the owner of record of parcels 198 - 011 -01, 198 - 011 -03, and 198 - 011 -02 is the CJ Skirvin and Daisie Frances Skirvin, Trustees of the C.J. Skirvin and Daisie Frances Skirvin Family Trust, Dated January 28, 1981. C &C N Harbor, LLC has the authority to process applications for the parcels it does not own. Please see the attached authorization. C &C N Harbor, LLC can be contacted at the following: C &C N Harbor, LLC 14211 Yorba St., Suite 200 Tustin, CA 92780 714 288 -7600 Sincerely, Todd Cottle C &C N Harbor, LLC Attached: Owner Authorization Letter 1310 N Harbor Grant Deed 25G -27 FORM OF APPOINTMENT OF AGENT The undersigned, C1. Skirvin and Daisie Frances Skirvin Family Trust, dated January 28, 1981 (collectively the "Seller"), the owner of that certain real property described on Exhibit "A" attached hereto (the "Property'I, hereby appoint C & C Development Co., LLC or its designee, ( "Buyer'), as agent to execute, in place and stead of the undersigned, all applications, maps, and other documents required by the City or other public or quasi -public agency or utility necessary for the entitlement and development of the Property, including, without limitation, documents concerning @ zoning, (ii) subdivision, (iii) design review, and (iv) use, grading, and construction permits, but excepting any documents which would cause the undersigned to incur personal liability or obligation or create alien or monetary encumbrance upon the Property or change the use of the Property before Close of Escrow; said agency shall be binding on any successors -in- interest or assigns to the undersigned's fee interest in the Property, is a power coupled with an interest, and shall not be affected by the disability of the undersigned or its successors or assigns. The undersigned hereby gives and grants Buyer the full power and authority to do and perform all acts whatsoever requisite, necessary, or appropriate for the limited purposes state above as the undersigned might or could do if personally present, hereby ratifying all that Buyer, in its capacity as agent for the undersigned, shall lawfully do or cause to be done by virtue of these presents. This Appointment of Agent shall expire, and shall cease to be of any further force or effect, without any further action by Buyer or the undersigned, upon the earlier of (1) conveyance of title to the Property to Buyer, or (2) termination of that certain Purchase Agreement and Escrow between Buyer and the undersigned, Executed this 10 A day of 2013. C.J. Skirvin aan�d� D,aisiee Frances Skirvin Family Trost, dated January 28,1981 \I Signature- '�"�� p By: AA1 S PA-Vu, Tide: �RUi0P4'u�e. Date: 1603WIN13534772 25G -28 RECORDING REQUESTED BY: Stewart Title of California, Inc. AND WREN RECORDED MAIL TO AND MAIL TAR STATEMENTS TO: C&C N. Harbor, LLC 14211 Yorba Street, Suite 200 Tustin, CA 92780 THEE ORDER NO. 7037-364526 ESCROW N0.7005- 364526 This Document was electronically recorded by Stewart Title ,road in Official Records, Orange County Daly, Clerk- Recorder 12.00 2011000516688 02.57pm 10/17/11 422 G02 3 NonrOs 10 0.00 0.00 0.00 6.00 0.00 0.00 0.00 THE UNDERSIGNED GRANTOR(S) hereby request that the tax declaration not be made a part of the permanent record in the Of&e of the county recorder pursuant to section 11932 of the revenue and taxation code. FOR A VALUABLE CONSIDERATION, receipt of which is hereby aclmowledged, Lords F. Brenler and Carolyn L. Bremer, Trustees of the Bremer Family Trust Established June 4,1990, Amended and Restated February 7, 2011 hereby ORANT(s) to: C &C N. harbor, LLC, a California limited liability company data� the real property in the City of , County of,� IM of California, described as: LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT "A" AND MADE A PART HEREOF Dated: October 14, 2011 STATE OF CALMRft COUNTY On c CYi- rJ¢i'� 8efore me, �® Mary Pu ; persopallyusaxed who proved to me on the basis of aabati� #aot�oey evidence the persons) whose names) is( ubacdbed to Gus within instrument and aclm wledged to me that a executed the same in 1 authorized capacity(Ies), and that by biaAtar u�` signature(s) on the instrument the person(&), or the entity upon behalf of which the person(&) acted, executed the iu&trament. I certify under PENALTY. OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal. * A. NME /`= Louis F. Brener. Trustee ofthe Brener Pand Trust Established June 4, 1990 and Amended February 7.2011 . E!sfrolyn L. Merrier, Trustee of the Brener Family Trust Established June 4, 1990 and Amended February 7,2011 Fill (Seal) MAIL TAX STATEMENT AS DutECTED ABOVE 25G -29 Section III.A. Narrative Description of the Entire Project The project involves the redevelopment of an approximately 7.5 acre site located at 1206 -1226 N Harbor Blvd. The site is located within the Harbor Mixed Use Transit Corridor Specific Plan. It has a Corridor District designation. The project will involve the construction of 95 detached single family units ranging from 2 -3 stories and 15 attached shopkeepers townhome units. The shopkeeper units will be situated in three story buildings located along Harbor Blvd and the detached units will be located behind the attached project to the west of Harbor Blvd. The density of the project is approximately 14.6 du /ac (I 10 units / 7.5 acres). Homes will range from 1,707 — 2,024 sf and will contain 3 — 4 bedrooms. Each home will have an attached two car garage. Guest and customer parking will be situated in parking spaces located throughout the site. The project exceeds the parking requirements of the Harbor Mixed Use Transit Corridor Specific Plan by 42 %. 25G -30 § f \o y r E9 |AA! |/ } }�� A)!!a! (,2 & \N§ ! §f flol / Q£!!:1 § \E }�\ 10 5r E ! �40- G { ! � 25G-31 �! & eE ZL 2§ R }\ 2 I\ 2) 0 e% CL (D o � " � $/ )� i (\( 2 ; ( \ ■ ■ ■ ',/ / ( \ � � ( /!�_! a =! !! 9 ! G !! ,!!� !!!! § f \o y r E9 |AA! |/ } }�� A)!!a! (,2 & \N§ ! §f flol / Q£!!:1 § \E }�\ 10 5r E ! �40- G { ! � 25G-31 �! & eE ZL 2§ R }\ 2 I\ 2) 0 e% CL (D o � 25G -32