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03-0304_CARRIER JOHNSON_Density Bonus AgreementRECORDING REQUESTED BY AND AFTER RECORDATION, MAIL TO: CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Ann.: M • MOtnca v\ ply di02LL Recorded in official Records, County of Orange Tom Daly, Clerk -Recorder IillliliilBllllllllllllllllliilllll�lllllillf�llllll!iIIIIIIIIIIIIiw FEE 200300035683012:44pm 04101103 107 23 Al2 C39 10 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Duplicate original recorded under document # 2003000356828 and 2003000356829 (Space Above Line for Recorder's Use) This Agreement is recorded at the request and for the benefit of the City of San Juan Capistrano and is exempt from the payment of a recording fee pursuant to Government Code Section 6103. DENSITY BONUS AGREEMENT AND RESTRICTIVE COVENANTS THIS DENSITY BONUS ACT)2�EEMENT AND RESTRICTIVE COVENANTS ("Agreement") is executed as of the < day of _MpAe ., 2003by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation ("City"), and CASA DE AMMA, INC., a California non-profit public benefit corporation ("Owner"), with reference to the following: A. City, on Septembe 24, 2002, approved Planning Commission Resolution No. 02-09-24-1 ("Project Approval") authorizing, subject to the issuance of building permits and other conditions, a new assisted livine development containing 33 units ("Project") on a 1.263 acre site at 27231 Calle Arroyo, in the City of San Juan Capistrano ("Site") legally described on Exhibit "A" to this Agreement. B. Because the Site lies within the City's Ortega Business Center Planned Community (PC) zone, normally permitting up to 25 units per acre, the Project requires a density bonus as authorized by Section 9-3.511 of the San Juan Capistrano Municipal Code. C. As a condition to the Project Approval and pursuant to Government Code Section 65915 and San Juan Capistrano Municipal Code Section 9-3.511, this Agreement and the terms and covenants herein are required as a condition to owner's utilization of the density bonus. NOW THEREFORE, in consideration of the representations, covenants, and obligations of Owner contained in this Agreement, Owner, on behalf of itself and its successors and assigns, hereby covenants and agrees as follows: Income -Restricted Units. Owner hereby covenants on behalf of itself, and its successor and assigns, which covenant shall run with the land and bind every successor and assign in interest of Owner, that, throughout the 33 -year term of this Agreement: NB1:562085.2 -1- 0 0 (a) not less than twenty percent (20%) of all dwelling units in the Project (the "Lower Income Units") shall be rented only at an "Affordable Rent' to "Lower Income Households" (as defined below); and (b) separate from and in addition to the foregoing "Lower Income Units", not less than ten percent (10%) of all dwelling units in the Project (the "Very Low Income Units") shall be rented only at an "Affordable Rent' to "Very Low Income Households" (as defined below). 2. Definitions. For purposes of this Agreement, "Area Median Income" shall mean the median income for Orange County, California, adjusted for household size, as published and periodically updated by the State Department of Housing and Community Development pursuant to Section 50079.5 of the California Health and Safety Code. "Affordable Rent" shall mean a rental rate which results in monthly payments which, on an annualized basis, including a reasonable utility allowance, do not exceed: (a) for a Very Low Income Household, one -twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of Area Median Income; and (b) for a Lower Income Household, one -twelfth (1/12) of thirty percent (30%) of sixty percent (60%) of Area Median Income. "Very Low Income Household" shall mean a household whose annual income does not exceed fifty percent (50%) of the Area Median Income. "Lower Income Household" shall mean a household whose annual income does not exceed eighty percent (80%) of the Area Median Income. 3. Location of Restricted Units. The bower Income Units and the Very Low Income Units (collectively, "Restricted Units") shall be those units identified by unit number, unit size and number of bedrooms on Exhibit `B" attached hereto. The selection of particular units as Restricted Units may be amended from time to time with the prior written approval of the Planning Director of the City. The Restricted Units shall not differ in appearance from other rental units in the Project. Each resident in a Restricted Unit shall be a "qualified permanent resident' as defined in Civil Code Section 51.3(c). 4. Tenant Selection and Reporting Requirements. Tenant applicants for the Restricted Units shall be screened by Owner for compliance with the income restrictions of this Agreement. Income verification documentation, lease agreements and rent rolls for each Restricted Unit shall be maintained by Owner for a period of not less than 2 years from origination of each tenancy, and shall be subject to inspection by the NB1:562085.2 -2- 0 0 City at any time upon 48 -hours advance written notice to Owner. Annually and not later than April 15th of each calendar year during the term of this Agreement following completion of the Project, Owner shall provide to the City a report which includes the name, address and income of each person occupying a Restricted Unit during the preceding calendar year, and identifying the bedroom size and monthly rent received for each Restricted Unit. 5. Term of this Agreement. This Agreement and the covenants herein shall be effective on the date hereof and shall continue in full force and effect for a period of thirty three (33) years hereafter, whereupon this Agreement shall terminate and be of no further force or effect; provided, however, that if the Project is for any reason not completed by Owner and substantially occupied in accordance with this Agreement on or before December 31, 2004, then Owner at its election on written notice to City may thereupon terminate this Agreement, surrender and waive the benefits of the Project Approval, and sell or develop the Site without a density bonus under applicable zoning requirements. 6. Covenants Run With the Land. The covenants and agreements established in this Agreement shall be covenants running with the land and shall, without regard to technical classification and designation, be binding on Owner and any successor -in -interest to Owner's interest in the Site, or any part thereof, for the benefit of and in favor of City and its successors and assigns. Recordation. City and Owner shall cause a fully executed copy of this Agreement to be recorded in the Official Records of the Orange County Recorder. 8. Enforcement. City shall have the right, if any of the covenants set forth in this Agreement which are provided for its benefit are breached, and if such breach is not cured by Owner within sixty (60) days of City's providing written notice to Owner specifying the nature and extent of the breach, to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it may be entitled, including but not limited to withdrawal of a certificate of occupancy, foreclosure of any monetary lien, and maintaining an action for specific performance. Except for City, the covenants and restrictions contained in this Agreement shall not benefit nor be enforceable by any owner of any other real property or any other person or entity. 9. Attorneys' Fees. In the event of litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable costs and attorney's fees. Na1:562085.2 -3- 10. 0 0 Miscellaneous Provisions. (a) Notices. All notices, demands, requests, consents, approvals or other communications (the "Notices") required or permitted to be given by this Agreement shall be in writing and shall be either personally delivered, or sent via telecopy with receipt confirmation, or by Federal Express or other regularly scheduled overnight courier or sent by United States mail, registered or certified with return receipt requested, properly addressed and with the full postage prepaid. Said Notices shall be deemed received and effective on the earlier of (i) the date actually received (which, in the case of telecopied notice, shall be the date such telecopy is transmitted with confirmation of receipt, and which, if received after 5:00 p.m. recipient's time, shall be deemed delivered the next business day) or (ii) three (3) business days after being placed in the United States Mail as aforesaid. Said Notices shall be sent to the parties hereto at the following addresses, unless otherwise notified in writing: If to City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: William Ramsey, AICP, Principal Planner With a copy to: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Attorney If to Owner: Casa de Amma, Inc. 620 Newport Center Drive, Suite 1100 Newport Beach, CA 92660-8011 Attn: Russell E. Leatherby With a copy to: O'Melveny & Myers LLP 610 Newport Center Drive, Suite 1700 Newport Beach, CA 92660 Attn: Paul E. Mosley, Esq. (b) Execution in Counterparts. The parties may execute this document in one or more counterparts; each counterpart shall be deemed an original instrument as against any party who has executed it. (c) Governing Law. This Amendment and the Lease shall be construed in accordance with and governed by the laws of the State of California. (d) Due Authorization And Execution. This Agreement and all agreements, instruments and documents executed or to be executed in connection herewith by either party were duly authorized and shall be binding upon the party that executed and delivered the same. NBL562085.2 -4- 0 0 (e) Pro -Forma Unit Cost Analysis. The parties acknowledge that San Juan Capistrano Municipal Code Section 9-3511(f) requires a pro -forma analysis to demonstrate per unit cost of construction if assistance is requested. Owner ha: previously provided this analysis, which is on file with the City and is hereby incorporated by this reference as if set forth in full at this point. [Signatures on Following Page] NB1:562085.2 -5- 0 0 IN WITNESS WHEREOF, City and Owner have caused this instrument to be executed as of date first written above. A wTL OC . APPROVED AS TO FORM: City Attorny CITY: CITY OF SAN JUAN CAPISTRANO, a municipal corporation By: / Mayor CASA DE ANIMA, INC., a California non-profit public benefit corporation By:. Russell E. Leatherby, Preside S-1 0 0 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On March 4, 2003 before me, Margaret R. Monahan, City Clerk, personally appeared Johns. Gelff, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. (SEAL) Capacity Claimed by Signers WITNESS my hand and official seal. P. kbtl�� R. Monahan, City Clerk OPTIONAL Description of Attached Document Mayor Density bonus agreement & restrictive covenants Title Title or Type of Document Signers are Representing City of San Juan Capistrano 6 pages plus acknowledgements & exhibits Number of Pages March 4, 2003 Date of Document Russell E. Letherby, President Signers) Other Than Named Above 0 0 STATE OF CALIFORNIA COUNTYOF (')ranfc On Pecembee 30 , 2002, before me \,\ anV {rnw , Notary Public, personally appeared X2.1 ssa.\\ L • Leay'+e+ bel , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persona) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/shefthey executed the same in his/hmtrimir authorized capacity(-ies), and that by hisAterAlieir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and HILARY VERNOR Commission#13313' y Notary Public - Califo: Orange County My Comm. Expires Nov X HILARY VERNOR Commission # 1331312 Notary Public - Califomia f Orange County STATE OF CALIFORNIA ) 0MYCOnlol,ExpiresNM20, COUNTY OF ) On 2002, before me , Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature NB1:5Q085.2 N -I EXHIBIT "A" Legal Description of Site All that certain land situated in the State of California, County of Orange, City of San Juan Capistrano, described as follows: PARCEL 20 OF PARCEL MAP NO. 79-856, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 143, PAGES 1 THROUGH 8, INCLUSIVE, OF PARCEL MAPS AND AS AMENDED BY THAT CERTAIN AMENDED MAP FILED IN BOOK 176, PAGES 1 THROUGH 8, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT FROM A PORTION OF SAID LAND, ONE-HALF OF ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE OR SUBSURFACE ENTRY TO A DEPTH OF 500 FEET FROM THE PRESENT SURFACE OF SAID LAND, AS RESERVED BY HOWARD L. KRUM, AND WIFE, BY DEED RECORDED JANUARY 18, 1961 IN BOOK 5593, PAGE 537, OFFICIAL RECORDS. NB1:562085.2 Exhibit A EXHIBIT `B" Identification of Restricted Units I. LOWER INCOME UNITS (33 total units x 20 percent = 7 units): Unit No. Sq. Feet Bdrms. 7 Approx.800 1 II. VERY -LOW INCOME UNITS (33 total units x 10 percent = 4 units): Unit No. Sq. Feet Bdrms. 4 Approx.800 1 NBI:562085.2 Exhibit B •0 a ADMINISTRATIVE ITEMS G1. ENGINEERING DIRECTOR MID -YEAR CAPITAL IMPROVEMENT PROGRAM APPROVED FOR 2002-2003 AS PRESENTED (ATTACHMENT 1 OF STAFF REPORT). (330.40) Project Description: Staff reviewed the approved 2002-2003 Capital Improvement Budget in light of actual revenues to midyear and projected revenues to the end of the fiscal year. Project changes based on increased costs, scheduled deferrals or project additions are being recommended for approval as presented in Attachment 1 of the staff report. Written Communication: Report dated March 4, 2003, by William M. Huber, Director of Engineering and Building. Presentation: William M. Huber, Director of Engineering and Building, reviewed the staff recommendation. Council Action: Moved by Council Member Hart, seconded by Mayor pro tem Soto and carried unanimously, 5-0, to approve the Midyear Capital Improvement Program for 2002-2003 as presented in Attachment 1 of the staff report. G2. PLANNING DIRECTOR a. DENSITY BONUS AGREEMENT AND RESTRICTIVE COVENANTS APPROVED BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND CASA DE AMMA INC. (600.30) 1 Project Description: The applicant, Leatherby Family Offices, requested a Density Bonus allocation for their proposed project to allow a maximum density of thirty- three dwelling units per 1.263 acres. Staff recommends approving a Density Bonus Allocation for the proposed project, and entering into a ten year affordability agreement that would provide not less than 20% of all dwelling units in the project to lower income households, and not less than 10% of all dwelling units in the project to very low income households. Written Communication: Report and Supplement Report dated March 4, 2003, by Thomas Tomlinson, Director of Planning. Presentation: Thomas Tomlinson, Director of Planning, reviewed the staff recommendation and reported that the applicant had agreed to extend the Density Bonus Agreement from ten years to thirty-three years. City Council Minutes 5 3-4-03 •• 00 Council Comment The City Council welcomed Casa de Amma to the community and thanked them for extending the agreement to thirty-three years. Council Action: Moved by Council Member Swerdlin, seconded by Council Member and carried unanimously, 5-0, to approve the Density Bonus Agreement and Restrictive Covenants between the City of San Juan Capistrano and Casa de Amma Inc.; and authorize the Mayor to execute the agreement. G3. ADMINISTRATIVE SERVICES DIRECTOR ORDINANCE INTRODUCED CREATING A WATER ADVISORY COMMISSION (1050.60) Proiect Description: In 1998, the Capistrano Valley Water District Board of Directors formally established the Water Advisory Commission as a commission of the water district. On March 3, 2003, the Capistrano Valley Water District was dissolved and the Water Advisory Commission ceased to exist. Staff recommends approving the first reading and introduction an ordinance to amend Title 2, Chapter 3 of the Municipal code to create the Water Advisory Commission as a commission of the City with the same duties and responsibilities as formerly assigned by the Capistrano Valley Water District. Written Communication: Report dated March 4, 2003, by Cynthia L. Russell, Director of Administrative Services. Presentation: Cynthia L. Russell, Administrative Services Director, reviewed the staff recommendation. Meg Monahan, City Clerk, read the title of the Ordinance, entitled "AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, AMENDING TITLE 2 (ADMINISTRATION), CHAPTER 2 (COMMISSIONS AND BOARDS) OF THE SAN JUAN CAPISTRANO MUNICIPAL CODE - CREATION OF THE WATER ADVISORY COMMISSION." Council Action: Moved by Mayor pro tem Soto, seconded by Council Member Hart and carried unanimously, 5-0, to approve introduction and first reading of the Ordinance creating a Water Advisory Commission. City Council Minutes 6 3-4-03 0 3/4/2003 f AGENDA ITEM G 2a TO: George Scarborough, City Manager FROM: Thomas Tomlinson, Planning Director SUBJECT: Consideration of a Density Bonus Agreement and Restrictive Covenants Related to Affordability for Casa de Amma Assisted Living Facility (APN 666- 231-01) (Casa de Amma) RECOMMENDATION By motion, approve the Density Bonus Agreement and Restrictive Covenants between the City of San Juan Capistrano and Casa de Amma Inc.; and authorize the Mayor to execute the agreement. A. SITUATION APPLICANT: Russ Leatherby Leatherby Family Offices 620 Newport Center Dr. #1100 Newport Beach, CA 92660-8011 ARCHITECT: David Klages RNL Design 200 Baker Street, Suite 201 Costa Mesa, CA 92629 (949) 721-6633 (714) 641-0191 B. Summary and Recommendation OWNER: Dick Bybee Ortega Properties, Inc. NEWCO Mngmt. Co. 16320 Canoga Ave. #1450 Woodland Hills, CA 91367 (818) 716-2020 Leatherby Family Offices requests a Density Bonus Allocation (DBA) for the proposed project per Section 9-3.505 of Title 9, Land Use Code to allow a maximum density of thirty-three (33) dwelling units per 1.263 acres. In order to obtain the requested Density Bonus, the applicant proposes to enter into an affordability agreement with the City of San Juan Capistrano and place restrictive covenants over the project for a period of ten years. The project site would be developed with a two story above ground structure, including a subterranean accessory use area and grotto. Staff recommends that the City Council approve the proposed Density Bonus Allocation (DBA) for the proposed project, and enter into a ten year affordability agreement that would provide not less than 20% of all dwelling units in the project to "Lower Income Households", and not less than 10% of all dwelling units in the project to "Very Low Income Households". sv FOR CITY COUNCIL AGENDA .: 0 0 , CC Agenda Item -2- March 4, 2003 C. Background 1. General Plan Designation: The General Plan Land Use Element classifies the subject property under the public/institutional class as "5.3, Assisted Care Facility" (ACF), which is to "provide specialized care for seniors and persons requiring special medical housing." Under the General Plan, allowable uses include "senior assisted care housing, nursing homes, and other specialized housing of a similar nature." 2. Zoning Designation: The project site is located within the Ortega Properties Planned Community (PC) Zone District, in Planning Sector B-2, and is subject to Comprehensive Development Plan (CDP 78-01). In accordance with Section 9- 3.303 "Unlisted Uses", the Planning Director has determined that the subject use is comparable in nature to principal and conditional uses permitted in the Base District, and will not be detrimental to the property or properties in the vicinity; consequently the Planning Director has determined that the proposed use is a principal permitted use.(Attachment 1, Project Site Map) 3. Environmental Processing: A Mitigated Negative Declaration was issued for Architectural Control (AC 02-02), and additional CEQA review is not required. 4. Prior Entitlements: On October 21, 1997, the City Council adopted Ordinance 801 amending Comprehensive Development Plan (CDP) 78-01, Ortega Planned Community, Sector "B-2" to allow the following uses: 4. Senior apartments 5. Congregate care facilities that provide dining, recreational, and other activities for seniors, with apartments of no less than 400 square feet. 6. Assisted living facilities which incorporate dining, recreational, and other activities for seniors with units of no less than 300 square feet. No more than 50% of such facilities can be dual occupancy or semi- private units. 7. Alzheimer's care facilities. 8. Skilled nursing facilities. 9. Support services for seniors such as: pharmacy, physical therapy, and adult day care. On September 24, 2002, the Planning Commission conditionally approved Architectural Control (AC) 02-02, Casa de Amma, A request to construct a thirty- three (33) unit, 42,701 square foot assisted living facility for adults with learning disabilities on a 1.263 acre parcel located to the north of Calle Arroyo, west of Marriot Brighton Gardens Assisted Living Facility, and east of the Capistrano Business Center/ Paseo Tirador. Condition No. 4 of PC Resolution 02-09-24-1 required that prior to building permit issuance, the project shall record the City- 9 0 CC Agenda Item -3- March 4. 2003 approved affordable housing agreement and provide evidence to the City of recordation prior to building permit issuance. The agreement shall include a ten(10) year term, and provide twenty (-20%) of units affordable to "low income" households, and ten (10%) percent of units affordable to `very low income" households. The applicant has submitted this required agreement, and request that the City execute the subject agreement to satisfy conditions of approval. D. Project Description The project consists of a Density Bonus Allocation (DBA) for the proposed project per Section 9-3.505 of Title 9, Land Use Code to allow a maximum density of thirty- three (33) dwelling units per 1.263 acres. In order to obtain the requested Density Bonus, the applicant proposes to enter into an affordability agreement with the City of San Juan Capistrano and place restrictive covenants over the project for a period of ten years. The project site would be developed with a two story above ground structure, including a subterranean accessory use area and grotto. Approval of the proposed Density Bonus Allocation (DBA) for the project, would provide the City with a ten year affordability covenant over Casa de Amma; consequently, increasing the City's Affordability housing stock in the following manner: not less than 20% of all dwelling units in the project would be earmarked for "Lower Income Households", and not less than 10% of all dwelling units in the project would be earmarked for "Very Low Income Households". E. Issues: Compliance with the density bonus ordinance F. Staff Analysis: Staff has analyzed the proposed project for consistency with Title 9, Land Use Code standards for the affordable housing density bonus: DENSITY BONUS ALLOCATION (DBA) Section 9-3.505(d), Affordable housing and density bonus of the Code establishes additional development standards for affordability agreement, building height, parking, access, lighting, and related site improvements. The project has submitted a draft affordability agreement to which the City would be a party (see Attachment 3, Draft Density Bonus Agreement). The City needs to assure that the project will meet the City's affordability standards through a recorded, legally -binding agreement. The proposed "Density Bonus Agreement" would guarantee that at least twenty (20%) percent of units would be affordable to "low income" households, and an additional ten (10%) would be affordable to "very low income" households consistent with City standards. Staff recommends the City Council find that the proposed density bonus complies with the provisions of Section 9-3.505(d), Affordable housing and density bonus of the Code. The Draft resolution 0 CC Agenda Item -4- March 4, 2003 which would approve the density bonus incorporates the Draft Density Bonus Agreement by reference. G. Community Redevelopment Agency: The subject property is located within the City's Central Redevelopment Project Area. Although not a redevelopment project, staff has reviewed and determined that the project is consistent with the goals and objectives of the Redevelopment Plan for the Central Redevelopment Project Area. FINANCIAL CONSIDERATIONS None PUBLIC NOTIFICATION Russ Leatherby Dick Bybee * ALTERNATE ACTIONS Execute the Density Bonus Allocation and Affordability Agreement. 2. Do Not execute the Density Bonus Allocation and Affordability Agreement,. By motion, approve the Density Bonus Agreement and Restrictive Covenants between the City of San Juan Capistrano and Casa de Amma Inc.; and authorize the Mayor to execute the agreement. Respectfully submitted, Thomas Tomlinson, Planning Director RG:hs (C:\MyFiles\Current Planning\AC\ACO202\ACO202_Affordibility_CC_Agendaltem.wpd) Attachment 1, Project Site Map Attachment 2, Draft Density Bonus Agreement CityGIS 2 - Print • • Page 1 of 1 Casa de Amma Project Site Map 1 Scale: 1" = 164' TN CityGIS2 Copyright m 2002. All Pods Reserved The property d tte, co cardaiors hereind and proprietary proem y d the repr duos supplied ender license and may Hort be relGital a exceptas licereed by Optal Map Products ATTACHMENT hftp://maps.digitaimapcentral.com/CityGIS2/prinVprint.htmi 2/11/2003 .tl 3/4/2003 MEMORANDUM G 2a TO: George Scarborough, City Manager FROM: Thomas Tomlinson, Planning Director SUBJECT: Modification to Term of Agreement, Item G2a (Casa de Amma) Staff had received an inquiry on whether the term of the agreement could be extended beyond the ten years contained in the agreement that was transmitted to the City Council. I contacted the applicant on whether he would willingly extend the term of the agreement beyond that required by the Municipal Code. At the conclusion of this discussion it was agreed that a term of 33 years was exceptional and since it was his intent to always have units available for these income categories. This extended time frame just places on paper this commitment to providing affordable housing for this special needs group. Attached is the revised agreement with the term of agreement modified to 33 years. Staff is asking the City Council to approved the modified agreement at this evenings meeting. This is the last action that is necessary before the City can issue the building permit. Agreement attached (signed original at City Clerk's Office). FOR CITY COUNCIL AGENDA.,.' 0 0 RECORDING REQUESTED BY AND AFTER RECORDATION, MAIL TO: CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn.: Department of Planning (Space Above Line for Recorder's Use) This Agreement is recorded at the request and for the benefit of the City of San Juan Capistrano and is exempt from the payment of a recording fee pursuant to Government Code Section 6103. DENSITY BONUS AGREEMENT AND RESTRICTIVE COVENANTS THIS DENSITY BONUS AGREEMENT AND RESTRICTIVE COVENANTS ("Agreement") is executed as of the 30th day of December, 2002 by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation ("City"), and CASA DE AMMA, INC., a California non-profit public benefit corporation ("Owner"), with reference to the following: A. City, on Sotembe 24, 2002, approved Planning Commission Resolution No. 02-09-24-1 ("Project Approval") authorizing, subject to the issuance of building permits and other conditions, a new assisted living development containing 33 units ("Project") on a 1.263 acre site at 27231 Calle Arroyo, in the City of San Juan Capistrano ("Site") legally described on Exhibit "A" to this Agreement. B. Because the Site lies within the City's Ortega Business Center Planned Community (PC) zone, normally permitting up to 25 units per acre, the Project requires a density bonus as authorized by Section 9-3.511 of the San Juan Capistrano Municipal Code. C. As a condition to the Project Approval and pursuant to Government Code Section 65915 and San Juan Capistrano Municipal Code Section 9-3.511, this Agreement and the terms and covenants herein are required as a condition to owner's utilization of the density bonus. NOW THEREFORE, in consideration of the representations, covenants, and obligations of Owner contained in this Agreement, Owner, on behalf of itself and its successors and assigns, hereby covenants and agrees as follows: 1. Incom Restricted Units. Owner hereby covenants on behalf of itself, and its successor and assigns, which covenant shall run with the land and bind every successor and assign in interest of Owner, that, throughout the 33 -year tern of this Agreement: NB 1:562085.2 -1- • (a) not less than twenty percent (20%) of all dwelling units in the Project (the "Lower Income Units") shall be rented only at an "Affordable Rent' to "Lower Income Households" (as defined below); and (b) separate from and in addition to the foregoing "Lower Income Units", not less than ten percent (10%) of all dwelling units in the Project (the "Very Low Income Units") shall be rented only at an "Affordable Rent' to "Very Low Income Households" (as defined below). 2. Definitions. For purposes of this Agreement, "Area Median Income" shall mean the median income for Orange County, California, adjusted for household size, as published and periodically updated by the State Department of Housing and Community Development pursuant to Section 50079.5 of the California Health and Safety Code. "Affordable Rent" shall mean a rental rate which results in monthly payments which, on an annualized basis, including a reasonable utility allowance, do not exceed: (a) for a Very Low Income Household, one -twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of Area Median Income; and (b) for a Lower Income Household, one -twelfth (1/12) of thirty percent (30%) of sixty percent (60%) of Area Median Income. "Very Low Income Household" shall mean a household whose annual income does not exceed fifty percent (50%) of the Area Median Income. "Lower Income Household" shall mean a household whose annual income does not exceed eighty percent (80%) of the Area Median Income. 3. Location of Restricted Units. The Lower Income Units and the Very Low Income Units (collectively, "Restricted Units") shall be those units identified by unit number, unit size and number of bedrooms on Exhibit `B" attached hereto. The selection of particular units as Restricted Units may be amended from time to time with the prior written approval of the Planning Director of the City. The Restricted Units shall not differ in appearance from other rental units in the Project. Each resident in a Restricted Unit shall be a "qualified permanent resident' as defined in Civil Code Section 51.3(c). NB 1:562085.2 -2- 4. Tenant Selection and Reporting Requirements. Tenant applicants for the Restricted Units shall be screened by Owner for compliance with the income restrictions of this Agreement. Income verification documentation, lease agreements and rent rolls for each Restricted Unit shall be maintained by Owner for a period of not less than 2 years from origination of each tenancy, and shall be subject to inspection by the City at any time upon 48 -hours advance written notice to Owner. Annually and not later than April 15th of each calendar year during the term of this Agreement following completion of the Project, Owner shall provide to the City a report which includes the name, address and income of each person occupying a Restricted Unit during the preceding calendar year, and identifying the bedroom size and monthly rent received for each Restricted Unit. 5. Term of this Agreement. This Agreement and the covenants herein shall be effective on the date hereof and shall continue in full force and effect for a period of thirty three (33) years hereafter, whereupon this Agreement shall terminate and be of no further force or effect; provided, however, that if the Project is for any reason not completed by Owner and substantially occupied in accordance with this Agreement on or before December 31, 2004, then Owner at its election on written notice to City may thereupon terminate this Agreement, surrender and waive the benefits of the Project Approval, and sell or develop the Site without a density bonus under applicable zoning requirements, 6. Covenants Run With the Land. The covenants and agreements established in this Agreement shall be covenants running with the land and shall, without regard to technical classification and designation, be binding on Owner and any successor -in -interest to Owner's interest in the Site, or any part thereof, for the benefit of and in favor of City and its successors and assigns. Reco dation. City and Owner shall cause a fully executed copy of this Agreement to be recorded in the Official Records of the Orange County Recorder. 8. Enforcement. City shall have the right, if any of the covenants set forth in this Agreement which are provided for its benefit are breached, and if such breach is not cured by Owner within sixty (60) days of City's providing written notice to Owner specifying the nature and extent of the breach, to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it may be entitled, including but not limited to withdrawal of a certificate of occupancy, foreclosure of any monetary lien, and maintaining an action for specific performance. Except for City, the covenants and restrictions contained in this Agreement shall not benefit nor be enforceable by any owner of any other real property or any other person or entity. NBI:562085.2 -3- 0 9. Attorneys' Fees. 40 In the event of litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable costs and attorney's fees. 10. Miscellaneous Provisions. (a) Notices. All notices, demands, requests, consents, approvals or other communications (the "Notices") required or permitted to be given by this Agreement shall be in writing and shall be either personally delivered, or sent via telecopy with receipt confirmation, or by Federal Express or other regularly scheduled overnight courier or sent by United States mail, registered or certified with return receipt requested, properly addressed and with the full postage prepaid. Said Notices shall be deemed received and effective on the earlier of (i) the date actually received (which, in the case of telecopied notice, shall be the date such telecopy is transmitted with confirmation of receipt, and which, if received after 5:00 p.m. recipient's time, shall be deemed delivered the next business day) or (ii) three (3) business days after being placed in the United States Mail as aforesaid. Said Notices shall be sent to the parties hereto at the following addresses, unless otherwise notified in writing: If to City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: William Ramsey, AICP, Principal Planner With a copy to: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Attorney If to Owner: Casa de Amma, Inc. 620 Newport Center Drive, Suite 1100 Newport Beach, CA 92660-8011 Attn: Russell E. Leatherby With a copy to: O'Melveny & Myers LLP 610 Newport Center Drive, Suite 1700 Newport Beach, CA 92660 Attn: Paul E. Mosley, Esq. NBI:562085.2 -4- • E (b) Execution in Counterparts. The parties may execute this document in one or more counterparts; each counterpart shall be deemed an original instrument as against any party who has executed it. (e) Governing Law. This Amendment and the Lease shall be construed in accordance with and governed by the laws of the State of California. (d) Due Authorization And Execution. This Agreement and all agreements, instruments and documents executed or to be executed in connection herewith by either party were duly authorized and shall be binding upon the party that executed and delivered the same. (e) Pro -Forma Unit Cost Analysis. The parties acknowledge that San Juan Capistrano Municipal Code Section 9-3511(£) requires a pro -forma analysis to demonstrate per unit cost of construction if assistance is requested. Owner has previously provided this analysis, which is on file with the City and is hereby incorporated by this reference as if set forth in full at this point. [Signatures on Following Page] NBL:562085.2 -5- 0 IN WITNESS WHEREOF, City and Owner have caused this instrument to be executed as of date first written above. ATTEST: City Clerk APPROVED AS TO FORM: City Attorney CITY: CITY OF SAN JUAN CAPISTRANO, a municipal corporation IRa Mayor OWNER: CASA DE AMMA, INC., a California non-profit public benefit corporation By: Russell E. Leatherby, President S-1 9 0 STATE OF CALIFORNIA COUNTY OF On 2002, before me , Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature STATE OF CALIFORNIA COUNTY OF On 2002, before me , Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature NB I :562084.2 N-1 11 EXHIBIT "A" Legal Description of Site • All that certain land situated in the State of California, County of Orange, City of San Juan Capistrano, described as follows: PARCEL 20 OF PARCEL MAP NO. 79-856, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 143, PAGES 1 THROUGH 8, INCLUSIVE, OF PARCEL MAPS AND AS AMENDED BY THAT CERTAIN AMENDED MAP FILED IN BOOK 176, PAGES 1 THROUGH 8, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT FROM A PORTION OF SAID LAND, ONE-HALF OF ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE OR SUBSURFACE ENTRY TO A DEPTH OF 500 FEET FROM THE PRESENT SURFACE OF SAID LAND, AS RESERVED BY HOWARD L. KRUM, AND WIFE, BY DEED RECORDED JANUARY 18, 1961 IN BOOK 5593, PAGE 537, OFFICIAL RECORDS. NB1:562085.2 Exhibit A 0 , EXHIBIT `B" Identification of Restricted Units L LOWER INCOME UNITS (33 total units x 20 percent = 7 units): Unit No. Sq. Feet Bdrms. 7 Approx.800 1 II. VERY -LOW INCOME UNITS (33 total units x 10 percent = 4 units): Unit No. Sq. Feet Bdrms. 4 Approx.800 1 NB1:562085.2 Exhibit B 0 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949)493-1053 (FAX) 1v11,11'. sonjuancapislrano. org March 6, 2003 IIIIHH ON Bmusm 1 1961 1776 MEMSERS OF THE CIN COUNCIL DIANE L BATHGATE JOHN S. GELFF MATT HART JOESOTO DAVID M. SWEROLIN CITY MANAGER GEORGESCARSOROUGH NOTIFICATION OF ACTION BY THE CITY COUNCIL OF SAN JUAN CAPISTRANO On March 4, 2003 the City Council of San Juan Capistrano met regarding: "Consideration of a Density Bonus Agreement and Restrictive Covenants related to Affordability for Casa de Amma Assisted Living Facility (APN 666-231-01) Casa de Amma)" Item No. Gla The following action was taken at the meeting: Density Bonus Agreement and Restrictive Covenants between the City of San Juan Capistrano and Casa de Amma Inc., modified to include a 33 year term of the agreement, approved; and the Mayor authorized to execute the agreement. The following documents are in the process of being executed: Density Bonus Agreement. If you have any questions regarding this action, please contact Thomas Tomlinson, Planning Director at 443-6320 for more detailed information. Thank you, MeMon han, CMC �2Jo���✓ ' Cit CI Cc: Russ Leatherby, Leatherby Family Offices`; Dick Bybee, Ortega Properties, Inc.'; Thomas Tomlinson, Planning Director onus use is San Juan Capistrano: Preserving the Past to Enhance the Future 32400 PASEO ADELANTO SAN .JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 (FAX) nvlvsv sanjuancapistrano. org InnMHnu mnusw 1 1961 1776 MEMBERS OF THE CITY COUNCIL DIANE L SATHGATE JOHN S. GELFF MATT HART JOESOTO DAVID M. SWERDLIN CITY MANAGER GEORGESCARBOROUGH NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL The City Council of San Juan Capistrano will meet at 7:00 p.m. on March 4, 2003 in the City Council Chamber in City Hall, to consider: "Consideration of a Density Bonus Agreement and Restrictive Covenants related to Affordability for Casa de Amma Assisted Living Facility (APN 666-231-01) Casa de Amma)" — Item No. G2a If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at City Hall by 5:00 p.m. on Monday, March 3, 2003 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a blue 'Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Thomas Tomlinson, Planning Director. You may contact that staff member at (949) 443-6320 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancaoistrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: council -agendas cDsanivancaaistano.org. jMe o �hlan, CMC C' Cler cc: Russ Leatherby, Leatherby Family Offices*; Dick Bybee, Ortega Properties, Inc.*; Thomas Tomlinson, Planning Director * Received staff report onuo use �a San Juan Capistrano: Preserving the Past to Enhance the Future RECORDING REQUESTED BY AND AFTER RECORDATION, MAIL TO: CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn.: `11. MGyVL1tfLVA 0 Recorded in Official Records, County of Orange Tom Daly, Clerk -Recorder IIIIIIIIIILI111!111111111I1IIIIIIIIIIIIIIIIIIIIIiIIIIiIIIIIIIII1IIINO FEE 200300035682812:44pm 04101103 107 23 Al2 C39 10 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Duplicate original recorded under document # 2003000356829 and 2003000356830 This Agreement is recorded at the request and for the benefit of the City of San Juan Capistrano and is exempt from the payment of a recording fee pursuant to Government Code Section 6103. DENSITY BONUS AGREEMENT AND RESTRICTIVE COVENANTS THIS DENSITY BONUS AGEMENT AND RESTRICTIVE COVENANTS ("Agreement") is executed as of the day of JLA&ej�,2003 by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation ("City"), and CASA DE AMMA, INC., a California non-profit public benefit corporation ("Owner"), with reference to the following: A. City, on Septembe 24, 2002, approved Planning Commission Resolution No. 02-09-24-1 ("Project Approval") authorizing, subject to the issuance of building permits and other conditions, a new assisted living development containing 33 units ("Project") on a 1.263 acre site at 27231 Calle Arroyo, in the City of San Juan Capistrano ("Site") legally described on Exhibit "A" to this Agreement. B. Because the Site lies within the City's Ortega Business Center Planned Community (PC) zone, normally permitting up to 25 units per acre, the Project requires a density bonus as authorized by Section 9-3.511 of the San Juan Capistrano Municipal Code. C. As a condition to the Project Approval and pursuant to Government Code Section 65915 and San Juan Capistrano Municipal Code Section 9-3.511, this Agreement and the terms and covenants herein are required as a condition to owner's utilization of the density bonus. NOW THEREFORE, in consideration of the representations, covenants, and obligations of Owner contained in this Agreement, Owner, on behalf of itself and its successors and assigns, hereby covenants and agrees as follows: 1. Income -Restricted Units. Owner hereby covenants on behalf of itself, and its successor and assigns, which covenant shall run with the land and bind every successor and assign in interest of Owner, that, throughout the 33 -year term of this Agreement: NBL562085.2 -1- 0 0 (a) not less than twenty percent (20%) of all dwelling units in the Project (the "Lower Income Units") shall be rented only at an "Affordable Rent' to "Lower Income Households" (as defined below); and (b) separate from and in addition to the foregoing "Lower Income Units", not less than ten percent (10%) of all dwelling units in the Project (the "Very Low Income Units") shall be rented only at an "Affordable Rent' to "Very Low Income Households" (as defined below). 2. Definitions. For purposes of this Agreement, "Area Median Income" shall mean the median income for Orange County, California, adjusted for household size, as published and periodically updated by the State Department of Housing and Community Development pursuant to Section 50079.5 of the California Health and Safety Code. "Affordable Rent" shall mean a rental rate which results in monthly payments which, on an annualized basis, including a reasonable utility allowance, do not exceed: (a) for a Very Low Income Household, one -twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of Area Median Income; and (b) for a Lower Income Household, one -twelfth (1/12) of thirty percent (30%) of sixty percent (60%) of Area Median Income. "Very Low Income Household" shall mean a household whose annual income does not exceed fifty percent (50%) of the Area Median Income. "Lower Income Household" shall mean a household whose annual income does not exceed eighty percent (80%) of the Area Median Income. Location of Restricted Units. The Lower Income Units and the Very Low Income Units (collectively, "Restricted Units") shall be those units identified by unit number, unit size and number of bedrooms on Exhibit "B" attached hereto. The selection of particular units as Restricted Units may be amended from time to time with the prior written approval of the Planning Director of the City. The Restricted Units shall not differ in appearance from other rental units in the Project. Each resident in a Restricted Unit shall be a "qualified permanent resident' as defined in Civil Code Section 51.3(c). 4. Tenant Selection and Reporting Requirements. Tenant applicants for the Restricted Units shall be screened by Owner for compliance with the income restrictions of this Agreement. Income verification documentation, lease agreements and rent rolls for each Restricted Unit shall be maintained by Owner for a period of not less than 2 years from origination of each tenancy, and shall be subject to inspection by the NB1:562085.2 -2- 0 0 City at any time upon 48 -hours advance written notice to Owner. Annually and not later than April 15th of each calendar year during the term of this Agreement following completion of the Project, Owner shall provide to the City a report which includes the name, address and income of each person occupying a Restricted Unit during the preceding calendar year, and identifying the bedroom size and monthly rent received for each Restricted Unit. 5. Term of this Agreement. This Agreement and the covenants herein shall be effective on the date hereof and shall continue in full force and effect for a period of thirty three (33) years hereafter, whereupon this Agreement shall terminate and be of no further force or effect; provided, however, that if the Project is for any reason not completed by Owner and substantially occupied in accordance with this Agreement on or before December 31, 2004, then Owner at its election on written notice to City may thereupon terminate this Agreement, surrender and waive the benefits of the Project Approval, and sell or develop the Site without a density bonus under applicable zoning requirements. 6. Covenants Run With the Land. The covenants and agreements established in this Agreement shall be covenants running with the land and shall, without regard to technical classification and designation, be binding on Owner and any successor -in -interest to Owner's interest in the Site, or any part thereof, for the benefit of and in favor of City and its successors and assigns. 7. Recordation. City and Owner shall cause a fully executed copy of this Agreement to be recorded in the Official Records of the Orange County Recorder. 8. Enforcement. City shall have the right, if any of the covenants set forth in this Agreement which are provided for its benefit are breached, and if such breach is not cured by Owner within sixty (60) days of City's providing written notice to Owner specifying the nature and extent of the breach, to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it may be entitled, including but not limited to withdrawal of a certificate of occupancy, foreclosure of any monetary lien, and maintaining an action for specific performance. Except for City, the covenants and restrictions contained in this Agreement shall not benefit nor be enforceable by any owner of any other real property or any other person or entity. 9. Attorneys' Fees. In the event of litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable costs and attorney's fees. NB1:562085.2 -3- 10. 0 Miscellaneous Provisions. (a) Notices. All notices, demands, requests, consents, approvals or other communications (the "Notices") required or permitted to be given by this Agreement shall be in writing and shall be either personally delivered, or sent via telecopy with receipt confirmation, or by Federal Express or other regularly scheduled overnight courier or sent by United States mail, registered or certified with return receipt requested, properly addressed and with the full postage prepaid. Said Notices shall be deemed received and effective on the earlier of (i) the date actually received (which, in the case of telecopied notice, shall be the date such telecopy is transmitted with confirmation of receipt, and which, if received after 5:00 p.m. recipient's time, shall be deemed delivered the next business day) or (ii) three (3) business days after being placed in the United States Mail as aforesaid. Said Notices shall be sent to the parties hereto at the following addresses, unless otherwise notified in writing: If to City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: William Ramsey, AICP, Principal Planner With a copy to: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Attorney If to Owner: Casa de Amma, Inc. 620 Newport Center Drive, Suite 1100 Newport Beach, CA 92660-8011 Attn: Russell E. Leatherby With a copy to: O'Melveny & Myers LLP 610 Newport Center Drive, Suite 1700 Newport Beach, CA 92660 Attn: Paul E. Mosley, Esq. (b) Execution in Counterparts. The parties may execute this document in one or more counterparts; each counterpart shall be deemed an original instrument as against any party who has executed it. (c) Governing Law. This Amendment and the Lease shall be construed in accordance with and governed by the laws of the State of California. (d) Due Authorization And Execution. This Agreement and all agreements, instruments and documents executed or to be executed in connection herewith by either party were duly authorized and shall be binding upon the party that executed and delivered the same. NB 1;562085.2 -4- i (e) Pro -Forma Unit Cost Analysis. The parties acknowledge that San Juan Capistrano Municipal Code Section 9-3511(f) requires a pro -forma analysis to demonstrate per unit cost of construction if assistance is requested. Owner has previously provided this analysis, which is on file with the City and is hereby incorporated by this reference as if set forth in full at this point. [Signatures on Following Page] NB1:562085.2 -5- 0 0 IN WITNESS WHEREOF, City and Owner have caused this instrument to be executed as of date first written above. ATTEST: CITY: CITY OF SAN JUAN CAPISTRANO, a municipal corporation B ' ao APPROVED AS TO FORM: City Attorne OWNER: CASA DE AMMA, INC., a California non-profit public benefit corporation By: Russell 9. Leatherby, Presi t S-1 i PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On March 4, 2003 before me, Margaret R. Monahan, City Clerk, personally appeared Johns. Gelff, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. (SEAL) Capacity Claimed by Signers WITNESS my hand and official seal. R. Monahan, City Clerk OPTIONAL Description of Attached Document Mayor Density bonus agreement & restrictive covenants Title Title or Type of Document Signers are Representing City of San Juan Capistrano 6 pages plus acknowledgements & exhibits Number of Pages March 4, 2003 Date of Document Russell E. Letherby, President Signer(s) Other Than Named Above 0 0 RWASKOMWAN-1 COMM COUNTY OF Of ave On Dace, 'bee 3u , 2002, before me kANkar., Ve(,).-r , Notary Public, personally appeared \1J S E. l2�{1�arb� , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons) whose name(ST) is/are subscribed to the within instrument and acknowledged to me that hetsbehhey executed the same in hisfl4erkkeir authorized capacity(ies), and that by his/Pterttiieir signature(s) on the instrument the persons), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. HILARY VERNOR Commission aK 1331312 [z y Notary Public- California Orange County My Corrrn Expires Nov20,2005 STATE OF CALIFORNIA COUNTY OF On 2002, before me , Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. NB1:562085.2 N -I EXHIBIT "A" Leeal Description of Site All that certain land situated in the State of California, County of Orange, City of San Juan Capistrano, described as follows: PARCEL 20 OF PARCEL MAP NO. 79-856, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 143, PAGES 1 THROUGH 8, INCLUSIVE, OF PARCEL MAPS AND AS AMENDED BY THAT CERTAIN AMENDED MAP FILED IN BOOK 176, PAGES 1 THROUGH 8, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT FROM A PORTION OF SAID LAND, ONE-HALF OF ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE OR SUBSURFACE ENTRY TO A DEPTH OF 500 FEET FROM THE PRESENT SURFACE OF SAID LAND, AS RESERVED BY HOWARD L. KRUM, AND WIFE, BY DEED RECORDED JANUARY 18, 1961 IN BOOK 5593, PAGE 537, OFFICIAL RECORDS. NB1:5620852 Exhibit A . 0 EXHIBIT "B" Identification of Restricted Units 0 I. LOWER INCOME UNITS Q total units x 20 percent = 7 units): Unit No. So. Feet Bdrms. 7 Approx.800 1 II. VERY -LOW INCOME UNITS (33 total units x 10 percent = 4 units): Unit No. Sq. Feet Bdnns. 4 Approx.800 1 NB1:562085.2 Exhibit B 0 RECORDING REQUESTED BY AND AFTER RECORDATION, MAIL TO: CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn.: MGV\C_�VZ' 1/ ice./ kfJ-k- Recorded in Official Records, County of Orange Tom Daly, Clerk -Recorder Illlllllflllll!I!IIIII'iilli!Illilllllllllliiilllllllliilllllllllli11N0 FEE 200300035682912:44pm 04101/03 107 23 Al2 C39 10 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Duplicate original recorded under document # 2003000356828 and 2003000356830 (Space Above Cane for Recorder's Use) This Agreement is recorded at the request and for the benefit of the City of San Juan Capistrano and is exempt from the payment of a recording fee pursuant to Government Code Section 6103. DENSITY BONUS AGREEMENT AND RESTRICTIVE COVENANTS THIS DENSITY BONUS AEMENT AND RESTRICTIVE COVENANTS ("Agreement") is executed as of the day of 20G by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation ("City"), and CASA DE AMMA, INC., a California non-profit public benefit corporation ("Owner"), with reference to the following: A. City, on Septembe 24, 2002, approved Planning Commission Resolution No. 02-09-24-1 ("Project Approval") authorizing, subject to the issuance of building permits and other conditions, a new assisted livine development containing 33 units ("Project") on a 1.263 acre site at 27231 Calle Arroyo, in the City of San Juan Capistrano ("Site") legally described on Exhibit "A" to this Agreement. B. Because the Site lies within the City's Ortega Business Center Planned Community (PC) zone, normally permitting up to 25 units per acre, the Project requires a density bonus as authorized by Section 9-3.511 of the San Juan Capistrano Municipal Code. C. As a condition to the Project Approval and pursuant to Government Code Section 65915 and San Juan Capistrano Municipal Code Section 9-3.511, this Agreement and the terms and covenants herein are required as a condition to owner's utilization of the density bonus. NOW THEREFORE, in consideration of the representations, covenants, and obligations of Owner contained in this Agreement, Owner, on behalf of itself and its successors and assigns, hereby covenants and agrees as follows: 1. Income -Restricted Units. Owner hereby covenants on behalf of itself, and its successor and assigns, which covenant shall run with the land and bind every successor and assign in interest of Owner, that, throughout the 33 -year term of this Agreement: NBI:562085.2 -1- (a) not less than twenty percent (20%) of all dwelling units in the Project (the "Lower Income Units") shall be rented only at an "Affordable Rent' to "Lower Income Households" (as defined below); and (b) separate from and in addition to the foregoing "Lower Income Units", not less than ten percent (10%) of all dwelling units in the Project (the "Very Low Income Units") shall be rented only at an "Affordable Rent' to "Very Low Income Households" (as defined below). 2. Definitions. For purposes of this Agreement, "Area Median Income" shall mean the median income for Orange County, California, adjusted for household size, as published and periodically updated by the State Department of Housing and Community Development pursuant to Section 50079.5 of the California Health and Safety Code. "Affordable Rent" shall mean a rental rate which results in monthly payments which, on an annualized basis, including a reasonable utility allowance, do not exceed: (a) for a Very Low Income Household, one -twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of Area Median Income; and (b) for a Lower Income Household, one -twelfth (1/12) of thirty percent (30%) of sixty percent (60%) of Area Median Income. "Very Low Income Household" shall mean a household whose annual income does not exceed fifty percent (50%) of the Area Median Income. "Lower Income Household" shall mean a household whose annual income does not exceed eighty percent (80%) of the Area Median Income. 3. Location of Restricted Units. The Lower Income Units and the Very Low Income Units (collectively, "Restricted Units") shall be those units identified by unit number, unit size and number of bedrooms on Exhibit "B" attached hereto. The selection of particular units as Restricted Units may be amended from time to time with the prior written approval of the Planning Director of the City. The Restricted Units shall not differ in appearance from other rental units in the Project. Each resident in a Restricted Unit shall be a "qualified permanent resident' as defined in Civil Code Section 51.3(c). 4. Tenant Selection and Reporting Requirements. Tenant applicants for the Restricted Units shall be screened by Owner for compliance with the income restrictions of this Agreement. Income verification documentation, lease agreements and rent rolls for each Restricted Unit shall be maintained by Owner for a period of not less than 2 years from origination of each tenancy, and shall be subject to inspection by the NBI :562085.2 -2- 0 0 City at any time upon 48 -hours advance written notice to Owner. Annually and not later than April 15th of each calendar year during the term of this Agreement following completion of the Project, Owner shall provide to the City a report which includes the name, address and income of each person occupying a Restricted Unit during the preceding calendar year, and identifying the bedroom size and monthly rent received for each Restricted Unit. 5. Term of this Agreement. This Agreement and the covenants herein shall be effective on the date hereof and shall continue in full force and effect for a period of thirty three (33) years hereafter, whereupon this Agreement shall terminate and be of no further force or effect; provided, however, that if the Project is for any reason not completed by Owner and substantially occupied in accordance with this Agreement on or before December 31, 2004, then Owner at its election on written notice to City may thereupon terminate this Agreement, surrender and waive the benefits of the Project Approval, and sell or develop the Site without a density bonus under applicable zoning requirements. 6. Covenants Run With the Land. The covenants and agreements established in this Agreement shall be covenants running with the land and shall, without regard to technical classification and designation, be binding on Owner and any successor -in -interest to Owner's interest in the Site, or any part thereof, for the benefit of and in favor of City and its successors and assigns. 7. Recordation. City and Owner shall cause a fully executed copy of this Agreement to be recorded in the Official Records of the Orange County Recorder. 8. Enforcement. City shall have the right, if any of the covenants set forth in this Agreement which are provided for its benefit are breached, and if such breach is not cured by Owner within sixty (60) days of City's providing written notice to Owner specifying the nature and extent of the breach, to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it may be entitled, including but not limited to withdrawal of a certificate of occupancy, foreclosure of any monetary lien, and maintaining an action for specific performance. Except for City, the covenants and restrictions contained in this Agreement shall not benefit nor be enforceable by any owner of any other real property or any other person or entity. 9. Attorneys' Fees. In the event of litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable costs and attorney's fees. NBI :562085.2 -3- 0 • 10. Miscellaneous Provisions. (a) Notices. All notices, demands, requests, consents, approvals or other communications (the "Notices") required or permitted to be given by this Agreement shall be in writing and shall be either personally delivered, or sent via telecopy with receipt confirmation, or by Federal Express or other regularly scheduled overnight courier or sent by United States mail, registered or certified with return receipt requested, properly addressed and with the full postage prepaid. Said Notices shall be deemed received and effective on the earlier of (i) the date actually received (which, in the case of telecopied notice, shall be the date such telecopy is transmitted with confirmation of receipt, and which, if received after 5:00 p.m. recipient's time, shall be deemed delivered the next business day) or (ii) three (3) business days after being placed in the United States Mail as aforesaid. Said Notices shall be sent to the parties hereto at the following addresses, unless otherwise notified in writing: If to City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: William Ramsey, AICP, Principal Planner With a copy to: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Attorney If to Owner: Casa de Amma, Inc. 620 Newport Center Drive, Suite 1100 Newport Beach, CA 92660-8011 Attn: Russell E. Leatherby With a copy to: O'Melveny & Myers LLP 610 Newport Center Drive, Suite 1700 Newport Beach, CA 92660 Attn: Paul E. Mosley, Esq. (b) Execution in Counterparts. The parties may execute this document in one or more counterparts; each counterpart shall be deemed an original instrument as against any party who has executed it. (c) Governing Law. This Amendment and the Lease shall be construed in accordance with and governed by the laws of the State of California. (d) Due Authorization And Execution. This Agreement and all agreements, instruments and documents executed or to be executed in connection herewith by either party were duly authorized and shall be binding upon the party that executed and delivered the same. NBI:562085.2 -4- 0 (e) Pro -Forma Unit Cost Analysis. The parties acknowledge that San Juan Capistrano Municipal Code Section 9-3511(£) requires a pro -forma analysis to demonstrate per unit cost of construction if assistance is requested. Owner has previously provided this analysis, which is on file with the City and is hereby incorporated by this reference as if set forth in full at this point. [Signatures on Following Page] NBI:562085.2 -5- 0 0 IN WITNESS WHEREOF, City and Owner have caused this instrument to be executed as of date first written above. ATTEST: dit Clerk APPROVED AS TO FORM: City Attorn CITY: CITY OF SAN JUAN CAPISTRANO, a municipal corporation OWNER: CASA DE AMMA, INC., a California non-profit public benefit corporation By: 940&� Russell E. Leatherby, Presid t S-1 0 0 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On March 4, 2003 before me, Margaret R. Monahan, City Clerk, personally appeared Johns. Gelff, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. (SEAL) Capacity Claimed by Signers WITNESS my hand and official seal. r2 Monahan, City Clerk OPTIONAL Description of Attached Document Mayor Density bonus agreement & restrictive covenants Title Title or Type of Document Signers are Representing City of San Juan Capistrano 6 pages plus acknowledgements & exhibits Number of Pages March 4, 2003 Date of Document Russell E. Letherby, President Signer(s) Other Than Named Above STATE OF CALIFORNIA ) COUNTY OF O f d� ) On 0e,cm\.r 3u , 2002, before me \ac\\a.v \J-tr'N - Notary Public, personally appeared G- 1,c>kti<e\0 personally known to me (or proved to me on the basis of satisfactory evidence) to be he persons) whose names) is/are subscribed to the within instrument and acknowledged to me that he/ske/flqQy executed the same in his/iienkkeir authorized capacity(ies), and that by his/hurMmir signature(s) on the instrument the person(s), or the entity upon behalf of which the perso*) acted, executed the instrument. WITNESS my handand of seal. HIIARY VERNOR Commission * 1331312 iQMyComm.ExpimsNov20, Notary Public- California Signature Orange County 2005 STATE OF CALIFORNIA ) COUNTY OF ) On 2002, before me Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature NB 1:562085.2 N-1 EXHIBIT "A" Legal Description of Site All that certain land situated in the State of California, County of Orange, City of San Juan Capistrano, described as follows: PARCEL 20 OF PARCEL MAP NO. 79-856, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 143, PAGES 1 THROUGH 8, INCLUSIVE, OF PARCEL MAPS AND AS AMENDED BY THAT CERTAIN AMENDED MAP FILED IN BOOK 176, PAGES 1 THROUGH 8, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT FROM A PORTION OF SAID LAND, ONE-HALF OF ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE OR SUBSURFACE ENTRY TO A DEPTH OF 500 FEET FROM THE PRESENT SURFACE OF SAID LAND, AS RESERVED BY HOWARD L. KRUM, AND WIFE, BY DEED RECORDED JANUARY 18, 1961 IN BOOK 5593, PAGE 537, OFFICIAL RECORDS. NB1:562085.2 Exhibit A is EXHIBIT °B" Identification of Restricted Units I. LOWER INCOME UNITS 33 total units x 20 percent = 7 units): Unit No. Sq. Feet Bdrtns. 7 Approx.800 1 H. VERY -LOW INCOME UNITS (33 total units x 10 percent = 4 units): Unit No. S . Feet Bdrms. 4 Approx.800 1 NBL5620852 Exhibit B