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
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200300035683012:44pm 04101103
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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-
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(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-
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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-
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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-
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(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]
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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
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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
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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
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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 .:
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, 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
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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
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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
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200300035682912:44pm 04101/03
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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-
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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-
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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