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HomeMy WebLinkAbout32A - TRACT MAP - 4010 W MCFADDEN AVEREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JANUARY 19, 2016 TITLE: TENTATIVE TRACT MAP NO. 2015 -04 (COUNTY MAP NO. 17715) AND DENSITY BONUS AGREEMENT NO. 2015 -01 TO ALLOW A SUBDIVISION FOR FIVE SINGLE - FAMILY CONDOMINIUM UNITS AT 4010 WEST MCFADDEN AVENUE - HABITAT FOR HUMANITY, APPLICANT (STRATEGIC PLAN NOS. 3, 2, 5; 5, 3, 4) e / CITY MANAGE RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: r_1:77:Z01TV; ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2 °d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Receive and file the staff report approving Tentative Tract Map No. 2015 -04 as conditioned and with the additional unit permitted by Density Bonus Agreement No. 2015 -01 and no other deviations from the City Zoning Ordinance. 2. Authorize the City Manager and Clerk of the Council to execute the attached Density Bonus Agreement with Habitat for Humanity of Orange County, subject to non - substantive changes approved by the City Manager and City Attorney for the development of five (5) affordable for - sale units. PLANNING COMMISSION ACTION At its regular meeting on December 14, 2015 by a vote of 5:0 (Alderete absent), the Planning Commission adopted a resolution approving Tentative Tract Map No. 2015 -04 as conditioned and Density Bonus Agreement No. 2015 -01 to construct five detached single - family condominium units at 4010 West McFadden Avenue located in the Agriculture (A -1) zoning district. The Planning Commission made no changes to the recommended conditions of approval outlined in the attached staff report (Exhibit A). DISCUSSION Habitat for Humanity proposes a subdivision in conjunction with a five -unit single - family residential development. A tract map is proposed for the project that will allow the sale of the single - family condominium units. As part of the tract map, existing infrastructure in the area will be upgraded to service the project. These upgrades include construction of new driveways, sidewalks, curbs and gutters; planting of new trees in the landscape parkway; and new street lighting, all per City standards. Full -sized site plans are available for public viewing in the Clerk of the Council Office. 32A -1 TTM No, 2016-04 - DBA Igo, 2016 -01 —Family Condominiums at 4010 W, McFadden Avenue January 19, 2016 Page 2 Pursuant to aAMC Section 14 -1600 et seq., developers wishing to pursue deviations from the City's established densities and development standards must enter into a Density Bonus Agreement (DBA) with the City. The code also states that if the proposed DBA includes requests for deviations from zoning and development standards, those deviations must first be approved by the Planning Commission prior to consideration of the Agreement by the City Council. Habitat for Humanity is seeking a density bonus from the maximum density permitted by the LR -7 {general Plan land use designation and General Agricultural (A -1) zoning district in order to construct all five units on the subject site, Under the provisions of the LR -7 designation and General Agricultural (A ®1) zoning district, only four dwelling units are allowed. Approval of the DBA application and requested deviation will allow construction of the entire project (Exhibit B). STRATEGIC P6AN ALIQNMgNI Approval of this Item supports the City's efforts to meet Goal #3 - Economic Development, Objective #2 (create now opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies) and Objective #5 (leverage private Investment that results in tax base expansion and job Creation oltywide); Goal #6 - Community Health, Livability, Engagement & Sustainability, Objectives #3 (facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods) and Objective #4 (support neighborhood vitality and livability). FISCAL IMPACT There is no fiscal impact associated with this action, Hassan Haghani, AICP � Executive Director Planning & Building Agency AP: rb apWARQpoV tff Rapartli Par P61TTM1544 MUM HOW for Humanity Aft 19A,ou Exhibits: A. Planning Commission Staff Report B, Density Bonus Agreement 32A -2 REQUEST O. Planning Commission Action PLANNING COMMISSION DATE: DECEMBER 14,2015 PUBLIC HEARING — FILED BY HABITAT FOR HUMANITY FOR TENTATIVE TRACT MAP NO. 2015 -04 (COUNTY MAP NO. 17715) AND DENSITY BONUS AGREEMENT NO. 2015 -01 TO ALLOW A SUBDIVISION FOR FIVE SINGLE- FAMILY CONDOMINIUM UNITS AT 4010 WEST MCFADDEN AVENUE (STRATEGIC PLAN NOS. 3, 2; 3, 5; 5, 3; 5, 4) Prepared by Ali Pezeshkpour__ -� xectai+Uirector ['3tfilPTf li Fe;�irT�litTilE'F.�£�7��,i.'� APPROVED • As Recommended • As Amended • Set Public Hearing For DENIED • Applicant's Request • Staff Recommendation CONTINUED TO Planning Man e 1. Adopt a resolution approving Tentative Tract Map No. 2015 -04 as conditioned. 2. Adopt a resolution approving Density Bonus Agreement No. 2015 -01. Reguest of the Applicant George Abrina, representing Habitat for Humanity of Orange County, is requesting approval of a tentative tract map to create five single - family residential condominium units for Habitat for Humanity on property owned by the Redevelopment Agency of the City of Santa Ana. Applications for subdivisions over four parcels or condominium units require approval of a tentative tract map by the Planning Commission pursuant to Section 34 -127 of the Santa Ana Municipal Code (SAMC). In addition, the applicant is proposing a deviation from the density standards of the Low - Density Residential (LR -7) General Plan land use designation and General Agricultural (A -1) zoning district as allowed by SAMC Section 41 -1606 and the State of California Government Code Section 65915 -65918 as an incentive to provide affordable housing. Proiect Location and Site Description The project site consists of a single, 26,180- square foot (0.60 -acre) parcel on the south side of McFadden Avenue west of Harbor Boulevard. The project site is flat and rectangular in shape and is currently vacant. The General Plan land use designation for the site is Low- Density Residential (LR -7), which allows for residential land uses, making the proposed land use consistent with this General Plan land use designation. The zoning for the site is General Agricultural (A -1). The A -1 zoning district allows for single - family residences. The proposed project is also consistent with the zoning designation. Land uses surrounding the site include single- family residences to the east, south and west, and multiple - family dwellings to the north (Exhibits 1, 2, and 3). EXHIBIT A 32A -3 TTM No. 2015 -04 DBA No. 2015 -01 December 14, 2015 Page 2 Project Description Subdivision Summary — Habitat for Humanity proposes a subdivision in conjunction with a five -unit single- family residential development. A tract map is proposed for the project that will allow the sale of the single- family condominium units. As part of the tract map, existing infrastructure in the area will be upgraded to service the project. These upgrades include construction of new driveways, sidewalks, curbs and gutters; planting of new trees in the landscape parkway; and new street lighting, all per City standards, Development Summary — The project proposes five single - family residences with a common area to serve the residents of the development. Three units will contain four bedrooms and two and one -half baths, and two units will contain three bedrooms and two and one -half baths. All structures are proposed in the Craftsman architectural style, with variations in colors and building materials to diversify the appearance of the development. Four of the units will take access from a single, private motor -court off McFadden Avenue, while the westernmost unit will have frontage directly on McFadden Avenue. All units will contain a two -car garage and space for two additional vehicles in each driveway. An additional guest surface parking space is also proposed. The project's parking exceeds the minimum number of spaces that are required for single- family residential developments. No gates or other private entries are proposed at this time. Each unit will have private side and rear yard areas and open front yards. A single common area toward the rear of the project site will include a barbecue, seating, and a turf area. This open space has been designed to connect with the westernmost unit via a pathway within the project site (Exhibits 4, 5, and 6). Project Background ound In March 2011, the Community Redevelopment Agency of the City of Santa Ana adopted Community Redevelopment Agency Resolution No. 2011 -003. This resolution established a Disposition and Development Agreement between the City's Community Redevelopment Agency and Habitat for Humanity of Orange County. The terms of the agreement specified required improvements for 10 project sites in Santa Ana to be developed by Habitat for Humanity, including the subject site known as Site 10A. Community Redevelopment Agency Resolution No, 2011 -003 requires that Site 10A, the subject project site, be developed with five dwelling units, of which flour must be sold to low - income households and One to a moderate- income household. The proposed project is consistent with the terms of the agreement. 32A -4 TTM No. 2015 -04 DBA No. 2015 -01 December 14, 2015 Page 3 Project Analvsis The project requires approval of a tentative tract map to allow the parcel to be subdivided into five condominium units for sale to individual buyers. In addition, the project requires approval of a density bonus agreement (DBA) application to allow construction of the fifth unit in excess of the maximum number of units allowed by the LR -7 General Plan land use designation for the property. Staff has prepared the following analyses, which form the basis for the recommendation contained in this report. Tentative Tract Map Tentative tract map requests are governed by Section 34 -119 through 34-318 of the SAMC. Tentative tract map requests may be granted when it can be shown that the project is consistent with the General Plan; conforms to all applicable requirements of the zoning, subdivision, and other applicable City codes and ordinances; is physically suitable for the type and density of the proposed project; will not cause substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat; will not cause serious public health problems; and will not conflict with easements necessary for public access. The proposed subdivision is consistent with the LR -7 land use designation; however, the DBA application, if approved, will allow construction of the fifth unit to exceed the prescribed maximum density. Additional information on the DBA application is provided in the Density Bonus Agreement subsection on the following page. The proposed subdivision is consistent with several policies within the Land Use Element of the General Plan, including: Policy 1.5 (Maintain and foster a variety of residential land uses in the City); Policy 1.7 (Support open space in underserved areas); and Policy 3.1 (Support development which provides a positive contribution to neighborhood character and identity). Moreover, the proposed subdivision conforms to the minimum requirements as well as meets the letter and intent of the State of California Subdivision Map Act provisions. The project is in keeping with the site plan review for the project as well as Chapters 34 and 41 of the Santa Ana Municipal Code, Covenants, Conditions and Restrictions (CC &Rs) are required for the project, which need to be approved by the City prior to the recordation of the final map. Further, there are no physical constraints on the site that preclude development of the site. The proposed site consists of approximately 0.60 acres of land that is physically suitable for the residential development as proposed, The proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. The parcel is located in an urbanized area, and there are no known fish or wildlife populations existing on the project site. The proposed subdivision will not have any detrimental effects upon the general public and qualifies for a categorical exemption under the provisions of the California 32A -5 TTM No. 2015 -04 DBA No. 2015 -01 December 14, 2015 Page 4 Environmental Quality Act (CEQA). Additional information is provided in the CEQA analysis section on pages 5 and 6 of this report. Finally, the design or improvements of the proposed project will not conflict with easements necessary for public access through or use of the property within the proposed project since there is no public access easement located within this property (Exhibit 7). Density Bonus Agreement Pursuant to SAMC Section 14 -1600 et seq., developers wishing to pursue deviations from the City's established densities and development standards must enter into a Density Bonus Agreement (DBA) with the City. The code also states that if the proposed DBA includes requests for deviations from zoning and development standards, those deviations must first be approved by the Planning Commission prior to consideration of the Agreement by the City Council. The State Density Bonus Law was created to effectuate quality affordable housing. While the provisions of the law allow cities to approve qualified projects that would have units, or densities, in excess of cities' statutory density caps, the provisions also allow deviations from certain standards to facilitate affordable housing production. Under this law, California cities, including charter cities, were required to adopt implementing legislation, which Santa Ana did in 2001 with the adoption of Density Bonus for Affordable Housing (SAMC Sections 41 -1600 through 1607) provisions. Under this article, developers wishing to pursue projects that meet the requirements for a specified amount of affordable housing units may request to enter into a Density Bonus Agreement with the City and, pending approval of such an agreement, may also request deviations from the City's existing density caps and development standards that would be necessary to facilitate the development of the project. Pursuant to the provisions of SAMC Section 14 -1600, DBA requests may be granted when it can be shown that the proposed development will materially assist in accomplishing the goal of providing affordable housing opportunities; the development will not be inconsistent with the purpose of the underlying zone or applicable General Plan land use designation; and the deviation is necessary to make it economically feasible for the applicant to utilize a density bonus authorized for the development pursuant to Section 41 -1603 of the SAMC. Habitat for Humanity is seeking a density bonus from the maximum density permitted by the LR -7 General Plan land use designation and General Agricultural (A -1) zoning district in order to construct all five units on the subject site. Under the provisions of the LR -7 designation and General Agricultural (A -1) zoning district, only four dwelling units are allowed. Approval of the DBA application and requested deviation will allow construction of the entire project and will also allow the project to comply with the terms contained within the disposition and development agreement as approved by Community Redevelopment Agency Resolution No. 2011 -003. 32A -6 TTM No, 2015 -04 DBA No. 2015 -01 December 14, 2015 Page 5 The proposed five -unit residential development will materially assist in accomplishing the goal of providing affordable housing opportunities in an economically balanced community. The applicant will construct and sell all five units, representing 100 percent of the proposed development, to low- or moderate - income households, thus increasing the total supply of affordable units available for that level of affordability. As proposed, the project will be consistent with the purpose of the A -1 zoning district, which allows single - family residential development. With the approval of the deviation requested by the applicant, the project will comply with all applicable development standards established in the A -1 zoning district and the guidelines within the Citywide design standards. Additionally, the project will be consistent with purpose of the General Plan Land Use Element and Housing Element, as it will further the goals and policies of the plan and not obstruct their attainment. Public Notification The project is located within the boundaries of the Riverview West Neighborhood Association. Staff contacted the president of the Riverview West Association to ensure that he was notified of this project and to identify any areas of concern. The president identified no concerns with the proposed project. The project site was also posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter, and mailed notices were sent to all property owners and tenants within 500 feet of the project site. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. CEQA Compliance In accordance with the California Environmental Quality Act, the proposed project is categorically exempt from CEQA review per Section 15332. The Class 32 exemption applies to projects characterized as infill development meeting the following conditions: • The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations, including the State's Density Bonus Law. • The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. • The project site has no value as habitat for endangered, rare or threatened species. • Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. • The site can be adequately served by all required utilities and public services 32A -7 TTM No. 2015 -04 DBA No. 2015 -01 December 14, 2015 Page 6 In analyzing the project, staff finds that the project qualifies for the Class 32 exemption. The project, as proposed in conjunction with the DBA application, is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. As proposed, with concurrent approval of the DBA, the project will meet the intent and standards of the LR -7 General Plan land use designation and A -1 zoning district standards. Moreover, the proposed development will take place within city limits and is on a project site that is less than five acres in size and is surrounded by urban uses. The project site has no value as habitat for endangered, rare, or threatened species and is not identified in the General Plan as having such value. Approval of the project will not result in any significant effects relating to traffic, noise, air quality, or water quality. The City's Planning Division and Public Works Agency have reviewed the proposed project and have determined that the amount of traffic, noise, air quality impacts, or water quality impacts are below thresholds that would warrant further analyses. Finally, the site is already served by all required utilities and public services as it is located within a heavily- urbanized area near the intersection of Harbor Boulevard and McFadden Avenue. Based on this analysis, a Notice of Exemption for Environmental Review No. 2014 -12 will be filed for this project. Strategic Plan Alicinrnent 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). Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Tentative Tract Map No. 2015 -04 as conditioned and Density Bonus Agreement No. 2015 -01. Ali Pezeshkpour, AICP Assistant Planner I AP:jm apU Reports\Staff Reports for PC \TTM15 -04 DBA75 -01 Habitat for Humanity Site 10A.pc 32A -8 1TM No. 2015 -04 DBA No. 2015 -01 December 14, 2015 Page 7 Attachments: Exhibit 1 — General Vicinity Map Exhibit 2 — Land Use Map Exhibit 3 — Site Photo Exhibit 4 — Site Plan Exhibit 5 — Building Elevations Exhibit 6 — Landscape Plan Exhibit 7 — Tentative Tract Map 32A -9 ..r.�� I FIRST II II J LJ 1 ST. 1C II . it II II m— C5 CS eC2, C2 fl_,1 IIC211 —" a .i 1 ��1 ua n u 3it II [Z Ml 50.3$ 11 �fl)flAO TI 2 MI R Y'; II it 11 R1 R1 Nil _ A, PAD so y_ V~i rl _ -R) 'Ili I_ jl fll 3.l I_ R2JLfl0 II ? =_M� =� $ IL i$ J , �w: R3 f —Il If II II II _ I rl �I II 1�� II II III R1 I I 11 �I 1i —coca JII � - -n —II 11 "'a Al IISP- I 'l f 0(y' R4 '113 AEI I'' AI AI R2„ �.rRA R2 JGbI.JI'� Al R2 OI yAI� nr. 3 MCff00EN AVE. __,,: nl II +- R1 Y 4 Ii x3 RI yP.2 RI O li t nRi / s ,A 1v RT II RI RI RI I. - R7 P1 w u 3 RI oM� n c RI R71 RI ) .�R a Rl Rl R1 Rl Ill 2) ! 9 +R.�a. 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The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Tentative Tract Map No. 2015 -04 and Density Bonus Agreement No. 2015 -01 to allow a five -unit single - family condominium subdivision at the property located at 4010 West McFadden Avenue, B. Santa Ana Municipal Code Section 34 -127 requires approval of a tentative tract map by the Planning Commission for subdivisions over four (4) parcels or condominium units. C. Santa Ana Municipal Code Section 41 -1600 et seq. requires approval of a density bonus agreement for projects requesting to construct units in excess of applicable General Plan or Zoning Code density standards and for projects requesting deviations from the City's density or development standards. D. On December 14, 2015, the Planning Commission held a duly noticed public hearing on Tentative Tract Map No. 2015 -04 and Density Bonus Agreement No. 2015 -01. E. The Planning Commission of the City of Santa Ana determines that the following findings, which must be established in order to grant the Tentative Tract Map pursuant to Santa Ana Municipal Code (SAMC) Section 34 -127, have been established for Tentative Tract Map No. 2015- 04 to allow a five -unit single - family condominium subdivision: That the proposed project, as conditioned, and its design and improvements are consistent with the Industrial land use designation of the General Plan and are otherwise consistent with all other elements of the General Plan and any applicable specific plans. Resolution No, 2015 -xx Page 1 of 8 32A -20 The proposed subdivision, Tentative Tract Map No. 2015 -04, in conjunction with the concurrent Density Bonus Agreement No. 2015 -01, is consistent with the Low - Density Residential (IR -7) land use designation and density prescribed and all other elements of the General Plan. Specifically, the proposed subdivision is consistent with several policies within the Land Use Element of the General Plan, including: Policy 1.5 (Maintain and foster a variety of residential land uses in the City); Policy 1.7 (Support open space in underserved areas); and Policy 3.1 (Support development which provides a positive contribution to neighborhood character and identity). 2. That proposed project, as conditioned, conforms to all applicable requirements of the zoning and subdivision codes as well as other applicable City ordinances. The proposed subdivision, in conjunction with the concurrent Density Bonus Agreement No. 2015 -01, conforms to the minimum requirements as well as meets the letter and intent of the State of California Subdivision Map Act provisions. Vesting Tract Map No. 2015 -04 is in keeping with the site plan review for the project as well as Chapters 34 and 41 of the Santa Ana Municipal Code, Covenants, Conditions and Restrictions (CC &Rs) are required for the project, which need to be approved by the City prior to the recordation of the final map. 3. That the project site is physically suitable for the type and density of the proposed project. There are no physical constraints on the site that preclude development of the site. The proposed site consists of approximately 0.601 acres of land within the General Agricultural (A -1) zoning district, which is physically suitable for the residential development as proposed. Access to the site will occur from two points on McFadden Avenue. 4, That the design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. The proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. The project site is located in an urbanized area, and there are no known fish or wildlife populations existing on the project site. In accordance with Resolution No. 2015 -xx Page 2 of 8 32A -21 the California Environmental Quality Act (CEQA), the proposed project is categorically exempt from CEQA review per Section 15332. The Class 32 exemption applies to projects characterized as infill development meeting five specified conditions. The proposed project, in conjunction with the concurrent Density Bonus Agreement No. 2015 -01, meets the criteria in all five conditions. 5. That the design or improvements of the proposed project will not cause serious public health problems. The proposed subdivision will riot have any detrimental effects upon the general public. Any negative or adverse impacts have been addressed during the site plan approval phase of the project or will be addressed during recordation of the final map and the public improvements required. Moreover, approval of the project will not result in any significant effects relating to traffic, noise, air quality, or water quality. The City's Planning Division and Public Works Agency have reviewed the proposed project and have determined that the amount of traffic, noise, air quality impacts, or water quality impacts are below thresholds that would warrant further analyses. 6. That the design or improvements of the proposed project will not conflict with easements necessary for public access through or use of the property within the proposed project. The design or improvements of the proposed project will not conflict with easements necessary for public access through or use of the property within the proposed project since there is no public access easement located within this property. The Planning Commission of the City of Santa Ana hereby determines that the following findings, which must be established in order to grant the Density Bonus Agreement pursuant to Santa Ana Municipal Code (SANG) Section 41 -1600, have been established for Density Bonus Agreement No. 2015 -01 to allow a five -unit single - family condominium subdivision: That the proposed development will materially assist in accomplishing the goal of providing affordable housing opportunities in economically balanced communities throughout the city. The proposed five -unit residential development will materially assist in accomplishing the goal of providing Resolution No, 2615 -xx Page 3 of 8 32A -22 affordable housing opportunities in an economically balanced community. The applicant will construct and sell five units, representing 100 percent of the proposed development, to low- or moderate - income households, thus increasing the total supply of affordable units available for that level of affordability. 2. That the development will not be inconsistent with the purpose of the underlying zone or applicable designation in the general plan land use element. As proposed, the project will be consistent with the purpose of the General Agricultural (A -1) zoning district. With the approval of the density deviation requested by the applicant to allow construction of the fifth unit, the project will comply with all applicable development standards established in the A -1 zoning district and the guidelines within the Citywide design standards. Additionally, the project will be consistent with purpose of the General Plan Land Use Element and Housing Element, as it will further the goals and policies of the plan and not obstruct their attainment. Specifically, it will further the Land Use Element Goal 3, to preserve and improve the character and integrity of the existing neighborhood; Policy 31, to support development which provides a positive contribution to neighborhood character and identity; Policy 3.5, to encourage new development and/or additions to existing development that is compatible in scale, and consistent with the architectural style and character of the neighborhood, and Policy 5.5, to encourage development which is compatible with, and supportive of surrounding land uses. Additionally, it will further the Housing Element, Goal 2, to provide a diversity of quality housing, affordability levels, and living experiences that accommodate Santa Ana's residents and workforce of all household types, income levels, and age groups to foster an inclusive community. 3. That the deviation is necessary to make it economically feasible for the applicant to utilize a density bonus authorized for the development pursuant to section 41 -1604, The deviations of the development standards requested are necessary to make the project economically feasible. The deviation requested is to increase the allowable density of the project from the densities specified in the LR -7 General Plan land use designation and in the A -1 zoning district. Deviations from these General Plan and Zoning Code density standards will allow the developer to make Resolution No. 2015 -xx Page 4 of 8 32A -23 substantial improvements to the site, to construct five (5) affordable housing units, and to meet the terms of the Disposition and Development Agreement between the former Community Redevelopment Agency of the City of Santa Ana and Habitat for Humanity of Orange County specified in Community Redevelopment Agency Resolution No. 2011 -003. G. In accordance with the California Environmental Quality Act, the proposed project is categorically exempt from CEQA review per Section 15332. The Class 32 exemption applies to projects characterized as infill development meeting five specific conditions and their criteria. The project meets all criteria in all five conditions. Section 2. The applicant agrees to indemnify, hold harmless, and defend the City of Santa Ana, its officials, officers, agents, and employees, from any and all liability, claims, actions or proceedings that may be brought arising out of its approval of this project, and any approvals associated with the project, including, without limitation, any environmental review or approval, except to the extent caused by the sole negligence of the City of Santa Ana. Section 3. The Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Tentative Tract Map No. 2015 -04 as conditioned in Exhibit A, attached hereto and incorporated herein, and Density Bonus Agreement No. 2015 -01 for the project located at 4010 West McFadden Avenue. This decision is based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for Planning Commission Action dated December 14, 2015, and exhibits attached thereto; and, the public testimony, written and oral, all of which are incorporated herein by this reference. ADOPTED this 14th day of December, 2015. AYES: Commissioners: NOES: Commissioners: ABSENT: Commissioners: ABSTENTIONS: Commissioners: James Gartner Chairperson 32A -24 Resolution No. 2015 -xx Page 5 of 8 APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, KAREN GERARDO, Planning Commission Secretary, do hereby attest to and certify the attached Resolution No. 2015 -xx to be the original resolution adopted by the Planning Commission of the City of Santa Ana on December 14, 2015, Date: Planning Commission Secretary City of Santa Ana 32A -25 Resolution No. 2015 -xx Page 6 of 8 EXHIBIT A Conditions of Approval for Tentative Tract Map No. 2015 -04 Tentative Tract Map No. 2015 -04 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or to exercising the rights conferred by this approval. The applicant must remain in compliance with all conditions listed below throughout the life of the project. Failure to comply with each and every condition may result in the revocation of the approval for the tentative tract map. 1. The project shall comply with all conditions, standards, requirements, plans, and elevations approved by the Development Review Committee (DRC) for the development project (DP No. 2014 -7). 2. Covenants, Conditions and Restrictions (CC &Rs) for this project must be reviewed and approved prior to approval of the final tract map. At a minimum, the GC &Rs shall include provisions pertaining to owner occupancy, restrictions on home -based businesses, and means for securing any publicly- accessible open spaces. 3. The final landscape plan shall depict installation of a perimeter block wall on the project site except in front yard setback areas. The landscape plan shall also contain perimeter black wall construction details, finishes, decorative elements, and accommodation for landscaping to deter graffiti. 4. All real estate signage must be removed from the site within one (1) year from the date of installation. An extension of time may be granted as determined by the Planning Manager. 5. All site activities associated with grading and construction shall be screened by temporary construction fencing. Such fencing shall be secured and contain durable green mesh. 6. Graffiti on any portion of the project site before, during, and after construction shall be removed within 24 hours of first appearance. 7. Should the project be built in phases, any phase shall at all times comply with the standards of the approved landscape plan. Resolution No, 2015 -xx Page 7 of 8 32A -26 8. The final map must be approved and recorded prior to the sale of the first unit. 9. The final map and all improvements required to be made or installed by the subdivider must be in accordance with the design standards and specifications of the Santa Ana Municipal Code and the requirements of the State Subdivision Map Act. 10. Development within the area of the map is subject to development and permit fees in effect at the time of permit issuance. 11. Development within the area of the map is subject to design and development standards in effect at the time of permit issuance. 12.Two copies of the recorded final map and CC &Rs shall be submitted each to the Planning Division, Orange County Fire Authority (OCFA), Building Division, and Public Works Agency within ten (10) days of recordation. 13. Pursuant to Section 66474.9(b) of the Subdivision Map Act, the applicant shall defend, indemnify, and hold harmless the City, and its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, any approval of the City concerning this subdivision application, which action is brought within the time period provided for in Section 66499.37. Resolution No. 2015 -xx Page 8 of 8 32A -27 DENSITY BONUS HOUSING AGREEMENT THIS DENSITY BONUS HOUSING AGREEMENT (the "Agreement ") is hereby entered into as of this day of 2016, by and between HABITAT FOR HUMANITY OF ORANGE COUNTY, a California nonprofit public benefit corporation ( "Developer ") and the CITY OF SANTA ANA, a charter city and municipal corporation ( "City ") RECITALS A. Developer is the fee title absolute owner of certain real property within the City of Santa Ana, County of Orange, State of California commonly known as 4010 -4028 West McFadden Avenue and legally described in Attachment No. 1 hereto which is incorporated herein by this reference (the "Property "). B. Section 41 -1600 et seq. of the Santa Ana Municipal Code and section 65915 et seq. of the California Government Code set forth a process to provide increased residential densities to property owners who guarantee that a portion of their residential development will be available to low income, very low - income, or senior (also known as "qualified ") households. These regulations are intended to materially assist the housing industry in providing adequate and affordable shelter for all economic segments of the community and to provide a balance of housing opportunities for low income, very low - income, and senior households throughout the city. C. Developer is proposing to the City to develop five residential for -sale, condominium units on the Property (the "Proj eet ), as more particularly set forth in Tentative Tract Map No. 2015 -04 (County Map No. 17715), Density Bonus Application No. 2015 -01, Environmental Review No. 2014 -12, and Development Plan Review No. DP 2014 -7. D. The parties hereto desire by this Agreement for Developer to agree to hold and convey one (1) unit within the Project (the "Affordable Unit") to a Low Income Household, and in return for the City to agree to provide for additional units beyond that which is allowed pursuant to the City's General Plan together with other concessions to Developer. Section 41- 1602 of the Municipal Code referenced above, require such agreement to be the subject of a density bonus housing agreement. E. In light of the purpose of the City and State density bonus law, and the express provisions of section 65915(n), the City has determined to grant Developer's application for a density bonus and related concessions and waivers. F. In addition to the density bonus granted to Developer, the Project has been granted waivers and concessions of City development standards including (i) reduction of minimum lot size for five (5) units from 30,000 to 26,180 feet, and (ii) increasing the number of Exhibit 8 32A -28 attached units in the A -'1 zone from 4 units to 5 units. NOW, THEREFORE, Developer and City hereby agree as follows: 1. Definitions. The following terms which are used herein shall have the following definitions: "Affordable Housing Cost" means a price which is established at a level which ensures that the monthly housing costs of (a) any Low Income Household purchaser which earns not greater than eighty percent (80 %) of the Area Median Income adjusted for household size, does not exceed the product of thirty percent (30 %) multiplied by seventy percent (70 %) of the Area Median Income adjusted for Household Size Appropriate to the Unit, and (b) any Low Income Household purchaser which eams not less than seventy percent (70 %) or more than eighty percent (80 %) of Area Median Income adjusted for household size, the payment of which does not exceed thirty percent (30 %) of the gross income of such purchaser. Such housing costs (including mortgage payments, a reasonable utility allowance and similar costs) shall not exceed the maximum amount applicable to lower income households pursuant to California Health and Safety Code section 50052.5. Such housing costs (including mortgage payments, a reasonable utility allowance and similar costs) shall not exceed the maximum amount applicable to low income households pursuant to California Health and Safety Code Section 50052.5(b)(3). "Affordable Unit" is defined in Recital D of this Agreement. "Agreement" means this Density Housing Bonus Agreement between the City and the Developer. "Area Median Income" means the median income figures for Orange County adopted by the State of California pursuant to Health and Safety Code section 50093, as amended from time to time. "City" means the City of Santa Ana, a charter city and municipal corporation. "Household Size Appropriate for Unit" for the purpose of determining Affordable Housing Cost only, means three persons for a two bedroom Affordable Unit and four persons for a three bedroom Affordable Unit. Household Size Appropriate for Unit is not intended to constitute a limitation on the number of persons who may live in the Unit. "Low Income Household" shall mean aperson and fainily whose income does not exceed the qualifying limits for lower income families in Orange County as established by the State of California pursuant to Health and Safety Code section 50079.5, as such qualifying limit is amended from time to time. "Developer" shall mean Habitat for Humanity of Orange County, a California nonprofit public benefit corporation. "Project" means the construction of five (5) for -sale condominium units, including one (1) Affordable Unit, the sale thereof to a qualified purchaser of the Affordable Unit at an Affordable Housing Cost and any other activities undertaken in connection therewith. 2. Provision of Affordable Ownership Housing. One for -sale, condominium residential unit which is required to be developed as part of the Project shall be sold to a Low Income Household at the pricing set forth in paragraph 3 hereof. 32A -29 3. Maximum Sales Price. Developer covenants and agrees that the Affordable Unit shall be sold at no more than the Affordable Housing Cost to a Low Income Household. 4. Selection of Buyer. Developer shall be responsible for the selection of buyer for the Affordable Unit in compliance with the criteria set forth in paragraph 5 of this Agreement. Developer shall develop a plan for the marketing of the homes and the selection of buyers of the Affordable Unit, consistent with California housing law. Such marketing plan shall be submitted to the City for its reasonable approval, and Developer shall carry out the marketing in accordance with such approved plan. Developer covenants and agrees that no sales of Affordable Unit shall be made to any person or family related, within the fourth (4th) degree of consanguinity; to Developer or to any member, shareholder or partner of Developer, or anyone related by blood or marriage to any such shareholder or partner; provided, however, that the foregoing shall not prevent the sale of the Affordable Unit to an employee of Developer who is otherwise unrelated to any member, shareholder or partner of the Developer provided such employee otherwise meets the requirements set forth in this Agreement for the sale of the Affordable Unit. 5. Income of Buyers. Developer shall, upon execution of this Agreement, prepare and submit to the City for review and approval, which shall not be unreasonably withheld, a marketing plan for prospective buyers of the Affordable Unit. Based upon the marketing plan, Developer shall prepare and keep a written list of prospective buyers for the Affordable Unit. No later than ninety (90) days before the Affordable Unit is ready for occupancy, Developer shall contact all persons or families on the list and ask each to submit a income computation and certification form; provided, however, that City and Developer shall cooperate to determine terns and conditions under which buyers may pre - qualify to purchase an Affordable Unit. As early as practicable, but at least sixty (60) days prior to the sale of the Affordable Unit, the Developer shall submit to City a. completed income computation and certification form signed by the prospective buyer under penalty of perjury, in such fonn as may be provided by City for each prospective buyer, together with all information it has reviewed and considered in its selection process (the "Notice of Intended Sale "). City shall have ten (10) working days to approve or reject the Notice of Intended Sale. City's decision shall be final. For each buyer approved by the City, Developer shall use its best efforts to provide and cause, a true and correct copy of the complete lender's package shall be submitted to the City at the time of submission to the prospective lender, for City confirmation of income status. The lender's package submitted to the City shall be a true and correct copy of the complete package submitted by the unit's buyer to the prospective lender, City shall complete its review of the complete lender's package within fourteen (14) working days. Developer shall and hereby does covenant that no sale shall be made of the Affordable Unit unless and until the City has issued a certificate approving that the proposed buyer qualifies as a Low Income Household. In the event a sale is made in violation of the terms of this Agreement or false or misleading statements are made in any documents submitted to the City, the City shall have the right to file an appropriate action at law or in equity unless Developer substitutes another otherwise qualifying unit as the Affordable Unit. In the event that 32A -30 Developer fails to comply with this provision, costs, liabilities and obligations incurred by Developer and the buyer of the Affordable Unit for the return of any monies paid or received or for any costs and legal expenses shall be borne jointly and severally by the Developer and the buyer and such parties shall hold the City harmless and reimburse its costs and expenses, including attorneys' fees. Gross income shall be determined in accordance with Section 8 guidelines and California Health and Safety Code section 50093 (together with interpreting Regulations). Developer shall obtain a certification from each buyer purchasing an Affordable Unit demonstrating that such buyer is a Low Income Household and meets the eligibility requirements established for the Affordable Unit. Developer shall verify the income certification of the proposed buyer as set forth below. Developer shall verify the income of each proposed purchaser of the Affordable Unit by at least one of the following methods as appropriate to the proposed purchaser: a. obtain two (2) paycheck stubs from the prospective buyers' two (2) most recent pay periods. b. obtain a true copy of the last two income tax returns from the prospective buyers for the last two (2) tax years in which a return was filed. C, obtain an income verification certification from the employer of the prospective buyers. d. obtain an income verification certification from the Social Security Administration and /or the California Department of Social Scrvices if the prospective buyers receive assistance from such agencies. e. obtain an alternate form of income verification reasonably acceptable to the City, if none of the above forms of verification is available to the Developer. f City may reasonably request additional information regarding the buyer and/or the proposed transaction as is already in the custody of Developer, and Developer shall provide such information as soon as is practicable. 6. Non - Discrimination Covenant. Developer, on behalf of itself and its successors and assigns, herein covenants by and for itself, its successors and assigns, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (in) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land. Notwithstanding the immediately preceding paragraph, with respect to familial status, the immediately preceding paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the immediately preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.1, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) 32A -31 of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to the immediately preceding paragraph. All deeds, leases or contracts entered into by Developer relating to the Affordable Unit shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: a. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926, 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land. "Notwithstanding the immediately preceding paragraph, with respect to familial status, the immediately preceding paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the immediately preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to the immediately preceding paragraph." b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased. "Notwithstanding the immediately preceding paragraph, with respect to familial status, the immediately preceding paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the immediately preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Govermment Code shall apply to the immediately preceding paragraph." C. In contracts: "There shall be no discrimination against or segregation of, 32A -32 any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926, 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises which are the subject of this Agreement, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." "Notwithstanding the immediately preceding paragraph, with respect to familial status, the immediately preceding paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the immediately preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to the immediately preceding paragraph." d. The foregoing covenants shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City, its successors and assigns, any occupants of the Affordable Unit, and any successor in interest to the Affordable Unit. The covenants against discrimination shall remain in effect in perpetuity. In no event shall anything in this paragraph 6 be construed as authority to lease the Affordable Unit. 7. Notice of Resale Restrictions and Declaration of Conditions, Covenants and Restrictions. a. The parties agree and acknowledge that Attachment No. 2 to this Agreement shall be executed by Developer and recorded prior to City approval of the final map for this Project. b. The parties agree and acknowledge that Attachment No. 2 to this Agreement is intended and shall be interpreted to restrict the use of the unit to owner - occupancy, and shall restrict subsequent resales of the Affordable Unit to Low Income Households, at an Affordable Housing Cost, who agree to occupy the Affordable Unit as their principal place of residency; and that this restriction shall continue to apply to the Affordable Unit until the forty - fifth (45th) anniversary of the issuance of a Certificate of Occupancy by Santa Ana for the Affordable Unit. c. The parties further agree and acknowledge that this Agreement is intended and shalt be interpreted to provide that, for purposes of this Agreement, an individual or family who qualifies as a Low Income Household at the time he or she or they first takes title to the Affordable Unit shall be deemed a Low htcome Household so long as he or she or they continue to hold title to such Affordable Unit even if the Low Income Household subsequently ceases to meet the income or other requirements of a Low Income Household; and that when the owner of an Affordable Unit releases title to an Affordable Unit, such unit shall be deemed as occupied by a Low Income Household if it is held vacant and available for such occupancy until title is transferred to another Low Income Household pursuant to this Agreement. 8. Indemnity 32A -33 a. The parties agree that City neither undertakes nor assumes any responsibility to review, inspect, supervise, approve or inform Developer of any matter in connection with the construction of the Project, including matters relating to contractors, subcontractors and materialmen, or the workmanship of or materials used by any of them, and Developer shall entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Developer by City in connection with such matters is solely for the protection of City and neither Developer nor any third party is entitled to rely upon it. b. The parties agree and acknowledge that City is not a partner, joint venturer, alter -ego, manager, controlling person or other business associate or participant of any kind with Developer and that City does not intend to ever assume such status. C. The parties agree and acknowledge that City's activities in connection with the Affordable Unit or the Project shall not be "outside the scope of activities of a lender of money " within the meaning of California Civil Code section 3434, as amended from time to time, and City does not intend nor shall this Agreement be interpreted to imply that the City has assumed any responsibility to any person for the quality or safety of the Affordable Unit or the Project. d. The parties agree and acknowledge that City shall not be deemed responsible for, or participant in any acts, omissions or decisions of Developer. e. The parties agree and acknowledge that City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property arising from any construction on, or occupancy of, the Affordable Unit or the Project, whether alleged to arise from: i. any defect is any building, grading, landscaping, or other onsite or offsite improvements constructed by Developer; ii, any act or omission of Developer or of any of Developer's agents, employees, independent contractors, licensees, invitees or volunteers; or any accidents relating to the Affordable Unit or Project or any fire or other casualty or hazard thereon. f. Developer agrees to guarantee its work from defects for a period of at least one (1) year after construction is complete, with a five (5) year guarantee for the roof of each unit. Developer shall provide the buyer of the Affordable Unit with all of the manufacturer's warranties and product information. Developer shall also provide the buyer of the Affordable Unit with a commercially reasonable Homeowner Protection Plan. g. Developer agrees to and shall indemnify and hold harmless City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from or relating to (i) Developer's obligations of actions undertaken pursuant to this Agreement; ( ii) a claim, demand or other cause of action that any person has or asserts against Developer; ( iii) any act or omission of Developer or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the Affordable Unit or the Project; or ( iv) the Developer's initial sale of the Affordable Unit or Project, except to the extent such matters are caused by the negligence or willful misconduct of City or its officers, employees, agents, consultants, special counsel or representatives. This indemnity and hold 32A -34 harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this paragraph or by reason of the teens of, or effects, arising from this Agreement. The Developer further agrees to indenuiify, hold harmless, and pay all costs for the defense of the City, including fees and costs to the extent there is no conflict of interest, Developer should be allowed to use the legal counsel which is also representing Developer for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Developer's obligations under this paragraph shall survive the termination of this Agreement. 9. Compliance with Laws. a. Except as set forth expressly herein, the Developer shall carry out the design and construction of the Project in conformity with all applicable laws, including all applicable state labor standards, the City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City of Santa Ana Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act. 42 U.S.C. section 12101, etseq., Government Code section 4450, et sect. b. During the time of Developer's ownership of the Property, the Developer shall maintain the Property and all improvements thereon, including all landscaping, in compliance with the terms of all applicable provisions of the City of Santa Ana Municipal Code. Each homeowner shall be responsible for maintenance of their own property after transfer of title. 10. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Developer and the City of Santa Ana and their respective successors and assigns. 11. Governing Law. This Agreement has been entered into, is to be performed entirely within, and shall be governed by and construed in accordance with the laws of the State of California. 12. Further Assurances. Each party hereto covenants and agrees to perform all acts and things, and to prepare, execute, and deliver such written agreements, documents, and instruments as may be reasonably necessary to carry out the terms and provisions of this Agreement. 13. No Third Parties Benefited. This Agreement is made for the purposes of setting forth rights and obligations of Developer and the City of Santa Ana, and no other person shall have any rights hereunder or by reason hereof. 32A -35 14. Notices. Any notice which a party may desire to give to the other party under this Agreement must be in writing and may be given by first class mail, postage prepaid, personal delivery or reputable overnight delivery service, addressed to the party to whom the notice is directed as set forth below, or at any other address as that party may later designate by notice. To City: City of Santa Ana 20 Civic Center Plaza, M -26 Santa Ana, California 92701 Attention: Housing Manager To Developer: Habitat for Humanity of Orange County 2200 S. Ritchey Street Santa Ana, CA 92705 Attention: Mark Korando Any written notice, demand or communication shall be deemed received upon delivery or refusal to accept delivery if delivered by hand, shall be deemed delivered on the next business day if delivered by reputable overnight delivery service, and shall be deemed received on the third day from the date it is postmarked if delivered by registered or certified mail. 15. N on- Discrimination in Employment. in performing its obligations under this Agreement, Developer shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other related activities. Developer affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations 16. No Conflict 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 the Agreement which afi'ects his or her personal interests or the interests of any corporation, partnership or association in which lie or she is, directly or indirectly, interested. 17. Nonfiability of Santa Ana Officials and Employees, No member, official or employee of the City of Santa Ana shall be personally liable to the Developer, or any successor -in- interest, in the event of any default or breach by the City or for any amount which may become due to Developer or to its successor, or on any obligation under the terns of this Agreement. 18. Effective Date of Agreement. This Agreement shall be dated and effective as of the date of the action by the City when it approves this Agreement. 19. Entirety of Agreement. This Agreement integrates all of the terrns and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to the matters contained herein. 32A -36 None of the terns, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with any grant deed conveying title to the Property, and this Agreement shall continue in full force and effect before and after such conveyance. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of City and the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of City and the Developer. 20. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with fall knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. 21. Time of Essence. Time is expressly made of the essence with respect to the performance by the City and the Developer of each and every obligation and condition of this Agreement. 22. Cooperation. Each party agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements. (Signatures on page below) 10 32A -37 NOW, THEREFORE, the parties hereto have executed this Agreement as of the date set forth above. HABITAT FOR HUMANITY OF ORANGE COUNTY, a California Nonprofit Public Benefit Corporation LINDA SHEPARD, Chief Financial Officer CITY OF SANTA ANA a charter city and municipal corporation ATTEST: Maria D. Huizar David Cavazos Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: �! c Lisa Storck Assistant City Attorney I 32A -38 ATTACHMENT NO. 1 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: PARCEL 13: PARCEL 13A: (APN 108- 601 -24) A PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 16, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE RANCHO LAS BOLSAS, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 12, MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 16; THENCE SOUTH 89 32'50" WEST 837.09 FEET ALONG THE NORTH LINE OF SAID SECTION 16 TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 0 °40'35" EAST 158.00 FEET PARALLEL TO THE WEST LINE OF SAID NORTHEAST QUARTER; THENCE SOUTH 89 32'50" WEST 22.00 FEET PARALLEL TO THE NORTH LINE OF SAID SECTION 16; THENCE NORTH 00 °40'35" WEST 158.00 FEET PARALLEL TO THE WEST LINE OF SAID NORTHEAST QUARTER TO A POINT ON THE NORTH LINE OF SAID SECTION 16; THENCE NORTH 89 32'50" EAST 22.00 FEET ALONG SAID NORTH LINE TO THE TRUE POINT OF BEGINNING, PARCEL NO. 1313: (APN 108 - 601 -25) THE NORTH 175.00 FEET OF THE EAST 132.00 FEET OF THE WEST 7 ACRES OF THE NORTH ONE -HALF OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 16, 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. PARCEL 14: (APN 108- 601 -04) THE EAST 88.73 FEET OF THE WEST 163.73 FEET OF THE NORTH 120 FEET OF THE WEST 7 ACRES OF THE NORTH HALF OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 16, TOWNSHIP 5 SOUTH, RANGE 10 WEST, SAN BERNARDINO BASE AND MERIDIAN, PARCEL 15: (APN 108 - 601 -05) THE WEST 75 FEET OF THE NORTH 120 FEET OF THE FOLLOWING DESCRIBED PROPERTY: THE WEST 7 ACRES OF THE NORTH HALF OF THE NORTHEAST QUARTER OF THE 12 32A -39 SOUTHEAST QUARTER OF SECTION 16, IN TOWNSHIP 5 SOUTH, RANGE 10 WEST, SAN BERNARDINO BASE AND MERIDIAN. EXCEPTING THEREFROM ALL WATER RIGHTS, CLAIMS OR TITLE TO WATER, WHETHER OR NOT SHOWN BY THE PUBLIC RECORDS, PARCEL 16: (APN 108- 601 -03) THE WEST 7, ACRES OF THE NORTH l 12 OF THE NORTHEAST 114 OF THE SOUTHEAST 114 OF SECTION 16, TOWNSHIP 5 SOUTH, RANGE 10 WEST, SAN BERNARDINO BASE & MERIDIAN, AS SHOWN ON THE OFFICIAL PLAT THEREOF. EXCEPT THEREFROM THE NORTH 175 FEET OF THE EAST 132 FEET THEREOF ALSO EXCEPT THEREFROM THAT PORTION OF SAID LAND CONVEYED IN THE DEED TO JOHN MAGARRO, JR. AND WIFE, RECORDED October 19, 1956 IN BOOK 3683, PAGE 418 OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM THAT PORTION OF SAID LAND CONVEYED IN THE DEED TO JOHN N. SCHUMAKER AND WIFE, RECORDED January 9, 1957 IN BOOK 3765, OF PAGE 31 OF OFFICIAL RECORDS, ALSO EXCEPT THEREFROM ANY PORTION LYING WITHIN TRACT NO, 4548, AS PER MAP FIELD IN BOOK 170, PAGES 45 AND 46, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. SAID LAND IS ALSO SHOWN ON THAT CERTAIN "CERTIFICATE OF APPROVAL OF LOT LINE ADJUSTMENT NO, LL- 78 -3 ", WHICH RECORDED June 15, 1978 AS INSTRUMENT NO, 21947 OF OFFICIAL RECORDS, 13 32A -40 ATTACHMENT NO, 2 City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council NOTICE OF RESALE RESTRICTIONS AND DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS FOR PROPERTY THIS NOTICE OF RESALE RESTRICTIONS AND DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS FOR PROPERTY (the "Declaration ") is hereby made as of this day of by and between HABITAT FOR HUMANITY OF ORANGE COUNTY, a California nonprofit public benefit corporation ( "Covenantor "); and the CITY OF SANTA ANA, a charter city ( "City" or "Covenantee ") RECITALS A. Covenantor is the fee title absolute owner of certain real property within the City of Santa Ana, County of Orange, State of California commonly known as 4010 -4028 West McFadden Avenue and legally described in Exhibit A hereto which is incorporated herein by this reference (the "Property"), B. On , 2016, the City Council of the City approved a Density Housing Bonus Agreement with Covenantor and Tentative Tract Map No. . The City imposed conditions of approval on Covenantor to agree to the execution of the Density' Housing Bonus Agreement and to execute and record these Declaration to provide that 20% of the total number of units to be constructed by Covenantor on the Property, or one (1) unit to be for -sale, condominium affordable housing for low income households, as defined in California Health and Safety Code (H &SC) sections 50079.5, 50105 and 50106. NOW THEREFORE, the parties hereto agree and covenant as follows: 1. Affordability Covenant. Covenantor agrees for itself and its successor and assigns, and for every successor to Covenantor's interest in the affordable unit, or any part thereto, that the property located at 4010 -4028 W. McFadden Avenue, Santa Ana, California, shall include one (1) unit that shalt be designated as affordable for low income households and shall be held subject to this Declaration for forty -five (45) years from the date of City issuance of allotice of Completion for said unit, as follows: a. The affordable unit shall only be owned and occupied by "Low Income 14 32A -41 Households" which shall mean persons or families earning not more than eighty percent (80 %) or less of the Orange County median income, adjusted for household size appropriate for the unit as determined by the City based on statistics published by the United States Department of Housing & Urban Development or established by the State of California pursuant to Health & Safety Code section 50093, or successor statute. b. The affordable unit shall only be sold at an "Affordable Housing Cost" to Low Income Households. Affordable Housing Cost shall be the permitted gross sales price of the unit as established by the City, upon request of the Covenantor or owner of the affordable unit. C. The term of this agreement shall commence on the date this Declaration is recorded with the Recorder's Office of the County of Orange and shall continue for forty -five (45) years from the date a Notice of Completion is issued by the City ( "Affordability Period "). d. The covenant contained in this Section I shall run with the affordable unit and shall automatically terminate and be of no further force and effect upon the expiration of the Affordability Period. 2. Transfer of Affordable Unit. No transfer of the affordable unit shall occur until the Covenantee determines (a) that the prospective purchaser intends to occupy the affordable unit as the proposed purchaser's principal residence, (b) that the proposed purchaser qualifies as a Low Income Household, and (c) that the proposed transfer will occur at an Affordable Housing Cost. In the event that Covenantor, including successors and assigns, desires to sell the unit, Covenantor shall send written notice thereof to the Covenantee at the following addresses: To City: City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Attention: Clerk of the Council a. Within ten (10) days of such notice, the Covenantor, or its successor and assigns, shall submit to Covenantee a transfer application. Such transfer application shall include (a) a certification of the proposed purchaser's intent to occupy the affordable unit as the proposed purchaser's principal residence, (b) a certification to demonstrate that the purchaser qualifies as a Low Income Household, and (c) an affidavit disclosing that the proposed purchase price is equal to or less than the Affordable Housing Cost, and (d) a disclosure statement executed by the proposed purchaser which certifies that the proposed purchaser may only sell the unit at an Affordable Housing Cost to a Low Income Household, that the maximum permitted sales price may be less than fair market value of the affordable unit, and that the affordable unit roust be owner - occupied at all times and shall not be rented or leased. If Covenantee has pre - existing forms regarding such certifications and affidavits, such forms shall be used by Covenantor. b. Covenantor, or its successor and assigns, shall cooperate with Covenantee in providing such forms to the prospective purchaser and assisting prospective purchasers to prepare such forms and provide such required information to the Covenantee. C. The Covenantee shall review and approve the transfer only if it finds that the Covenantor (and proposed purchaser) have submitted all such forms necessary to make the determinations required pursuant to Section 1 of this Declaration. The City shall endeavor to make such determination within fourteen (14) days from the submission of the completed forms. If the 15 32A -42 Covenantee fails to approve or disapprove a submission within such fourteen (14) day period, the Covenantee shall be deemed to have denied such transfer. THE COVENANTOR AND EACH SUCCESSOR, HEIR, OR ASSIGN OF THE COVENANTOR UNDERSTANDS THAT THE DETERMINATION OF THE AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST RATES, THE TERMS OF SALE OFFERED TO AND THE ECONOMIC CIRCUMSTANCES OF THE PROPOSED PURCHASER, AND ECONOMIC CIRCUMSTANCES OF THE PROPOSED PURCHASER AND OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED UNDER THIS DECLARATION MAY BE LES THAN THE FAIR MARKET VALUE OF THE PROPERTY AND MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS DECLARATION. EACH SUCCESSOR, HEIR, OR ASSIGN OF COVENANTOR FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE TRANSFER PRICE, THE PRIMARY OBJECTIVE OF THE COVENANTEE AND THIS DECLARATION IS TO PROVIDE HOUSING TO LOW INCOME HOUSEHOLDS AT AN AFFORDABLE HOUSING COST. Covenantor's Initials 3. Subsequent Covenants. Covenantor, and its successor and assigns, shall include in the escrow instructions and Purchase and Sale Agreements with subsequent purchasers a provision which requires each subsequent purchaser to record a covenant which will run with the land and bind all successors- in-interest or assignees that will ensure that all subsequent buyers and occupants quality as Low Income Households. Said covenant(s) shall remain in full force and effect for the Affordability Period set forth in Section 1 of this Declaration. 4 Annual Monitoring. Throughout the teen of this Agreement, Covenantor, and its successor and assigns, shall comply with all applicable record keeping and monitoring requirements established by California law and this Agreement. Covenantor, and its successor and assigns, shall cooperate with the City's monitoring requirements established in accordance with California law. 5. Non- Discrimination Covenant. Covenantor, on behalf of itself and its successors and assigns, covenants and agrees that there shall be no discrimination against or segregation of any, nor shall Covenantor itself or any person claiming under or through Covenantor permit any such practice or practices of discrimination or segregation with reference 16 32A -43 to the selection, location, number or use of the affordable unit. Covenantor shall include in each grant deed for the affordable unit a provision substantially similar to the following: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person, or group of persons, on account of race, color, religion, sex or gender, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed, nor shall the grantee itself 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 vendees in the property herein conveyed. The foregoing covenants shall run with the land. 6. Covenants Do Not Impair Lien. No violation or breach of this Declaration shall defeat or render invalid or in any way impair any lien or charge of any mortgage or deed of trust or security agreement recorded against the Property. 7. Covenants for Benefit of Covenantee. This Declaration and all covenants contained herein without regard to technical classification shall be binding for the benefit of Covenantee and such covenants shall run in favor of Covenantee for the entire period during which time such covenants shall be in full force and effect. 8. Governing Law. This Agreement has been entered into, is to be performed entirely within, and shall be governed by and construed in accordance with the laws of the State of California. (Signatures commence on nextpage) 17 32A -44 NOW, THEREFORE, the Parties hereto have executed this Agreement as of the date set forth above. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Lisa Storck Assistant City Attorney COVENANTOR: HABITAT FOR HUMANITY OF ORANGE COUNTY, a California Nonprofit Public Benefit Corporation By: LINDA SHEPARD Chief Financial Officer CITY OF SANTA ANA, a charter city David Cavazos City Manager 18 32A -45 32A -46