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Ordinance #3955
ORDINANCE NO. 3955 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH ADOPTING A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF HUNTINGTON BEACH AND DCO BEACH WALK LLC (DEVELOPER) (DEVELOPMENT AGREEMENT NO. 12-002) WHEREAS, the Director of Planning and Building approved Site Plan Review No. 11-005 to develop an approximately 3.18-acre property located at 19891 and 19895 Beach Boulevard (Property) with 173 apartment units with a leasing office, fitness center, clubhouse and private and public recreation and open space areas (Project) pursuant to Beach and Edinger Corridors Specific Plan(BECSP); and The City Council adopted the Beach and Edinger Specific Plan in March 2010; and The City and Developer each mutually desire to enter into a Development Agreement with one another to permit and ensure that the Property is developed in accordance with the approved Site Plan Review No. 11-005 and Section 2.2.3 of the Beach and Edinger Corridors Specific Plan to achieve the mutually beneficial development of the Property. NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. The City Council hereby finds that the Development Agreement No. 12-002 conforms to Government Code Section 65864 et.seq. and that: a. Development Agreement No. 12-002 is consistent with the Huntington Beach General Plan and the applicable provisions of the BECSP; and b. Development Agreement No. 12-002 is consistent with Chapter 246 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) and the Huntington Beach Municipal Code; and C. Development Agreement No. 12-002 will not be detrimental to the health, safety and general welfare, and will not adversely affect the orderly development of the property because it is consistent with applicable land use regulations of the BECSP, mitigation measures adopted for the Project in accordance with EIR No. 08-008, and conditions approved for Site Plan Review No. 11-005; and d. The City Council has considered the fiscal effect of Development Agreement No. 12-002 on the City and the effect on the housing needs of the region in which the City is situated and has balanced these needs against the public service needs of its residents and available fiscal and environmental resources. 1 12-3391/81505 Ordinance No. 3955 SECTION 2. Based on the above findings, the City Council hereby approves Development Agreement No. 12-002 and adopts it by this ordinance pursuant to Government Code Section 65867.5. This action is subject to a referendum. SECTION. This ordinance shall become effective 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 2 0 t h day of August , 2012. Mayor ATTEST: 1NITIATD PPROVED:AN 0^1J 0�- IJW40 ity Clerk Director oYPIannVig and Building REVIEW APPROVED: APPROVEN�jv FORM: t ager �Cit�Attorne .�_�� Exhibit A: Development Agreement No. 12-002 2 12-3391/81505 This Document was electronically recorded by City of Huntington Beach Recorded in Official Records, Orange County Tom Daly, Clerk-Recorder II RECORDING REQUESTED BY AND 111111111111111111111111111111111111111111111111111111111111111 WHEN RECORDED MAIL TO: 2012000497302 11:01 am 08/28/12 65 404 Al2 42 City of Huntington Beach 0.00 0.00 0.00 0.00 123.00 0.00 0.00 0.00 2000 Main Street Huntington Beach, CA 92648 Attn: Director of Planning and Building SPACE ABOVE TFUS LINE RESERVED FOR RECORDER'S USE (DEVELOPMENT AGREEMENT THIS DEVELjj�,a5---,A�),2012, OPMENT AGREEMENT ("Agrecmcnt") is made in Orange County, California, as of by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California (the "City"), and DCO BEACH WALK LLC,a Delaware limited liability company(the "Developer"). RECITALS A. The City is authorized pursuant to Government Code sections 65864 through 65869.5 and Huntington Beach Zoning and Subdivision Ordinance (HBZSO) Chapter 246 to enter into binding development agreements with persons or entities owning legal interests in real property located within the City. B. Developer is the owner of that certain real property located at 19891 and 19895 Beach Boulevard, in the City of Huntington Beach, County of Orange, State of California, more particularly described in the legal description attached hereto as Exhibit A and incorporated herein by this reference (the"Property"). C. The City and Developer each desire to enter into this Agreement affecting the Property in conformance with Government Code section 65864 et seq. and HBZSO Chapter 246 in order to achieve the mutually beneficial development of the Property in accordance with this Agreement. D. The Developer seeks to develop an apartment project on the Property consisting of 173 rental units, as more particularly set forth in the Site Plan Review No. 11-005 (Beach Walk Apartments) approved by the City on March 27, 2012(the"Project"). E. The Project is to be undertaken pursuant to the Beach and Edinger Corridors Specific Plan adopted by the City Council of the City (the "City Council") on March 1, 2010 (the "Specific Plan"). The City certified an environmental impact report for the Specific Plan (the "EIR"). The City has determined that the Project will not have any new or more severe potential adverse environmental impacts that were not considered in the EIR, and that under the California Environmental Quality Act and Sections 15162 and 15182 of the CEQA Guidelines (California Code of Regulations, Title 14, Chapter 3), no further environmental review of the Project is required. This document is rely for buSkMft of the City of Hunftjon Beach,as Gowmarent Ccde 6103 vW 2 27 21026 5 6 5-0 0 04 &OM b9 3060319.9 a06/25/12 ° This Document was electronically recorded by City of Huntington Beach Recorded in Official Records, Orange County Tom Daly, Clerk-Recorder II II IIII III IIIIIIII I IIII I IIIIIII IIIIII IIIII o 1= 2012000497302 11:01 am 08/28/12 65 404 Al2 42 0.00 0.00 0.00 0.00 123.00 0.00 0.00 0.00 Exhibit"A" - Ordinance No. 3955 F. The City and the Developer each mutually desire to obtain the binding agreement of one another to permit and ensure that the Property is developed strictly in accordance with the provisions of this Agreement. G. This Agreement will benefit the Developer and the City by eliminating uncertainty in planning and providing for the orderly development of the Project. Specifically, this Agreement (1) eliminates uncertainty about the validity of exactions to be imposed by the City, (2)provides for the construction of needed affordable housing, and(3) generally serves the public interest within the City and the surrounding region. H. The Planning Commission and City Council have each given notice of their intention to consider this Agreement, and have each conducted public hearings thereon pursuant to the relevant provisions of the Government Code. The City Council has found that the provisions of this Agreement are consistent with the City's 1996 General Plan for development within the City, as amended (the "General Plan"), City zoning ordinances, as amended, and the Beach and Edinger Corridors Specific Plan. The Planning Commission and City Council have also specifically considered the impacts and benefits of the Project upon the welfare of the residents of the City and the surrounding region. The City Council has determined that this Agreement is beneficial to the residents of the City and is consistent with the present public health, safety and welfare needs of the residents of the City and the surrounding region. L On J u 1 y 10 .2012, the Planning Commission held a duly noticed public hearing on this Agreement and recommended to the City Council that it approve this Agreement. J. On August 6 , 2012, the City Council held a duly noticed public hearing on this Agreement. NOW, THEREFORE, in consideration of the foregoing recitals which are hereby incorporated into the operative provisions of this Agreement by this reference and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the City and the Developer agree as follows: 1. Definitions. 1.1 "Affordable Dwelling Units" shall mean each of the seventeen (17) Dwelling Units available for occupancy by Moderate Income Households at the Affordable Rent. 1.2 "Affordable Housing Agreement" shall mean that certain Affordable Housing Agreement Restrictions-Rental (Declaration of Conditions, Covenants and Restrictions for Property) in the form attached hereto as Exhibit C to be entered into by City and Developer, which Affordable Housing Agreement was approved as to form as part of this Agreement. The Affordable Housing Agreement shall also include any and all amendments or modifications thereto agreed to in writing by City and Developer. 1.3 "Affordable Rent" shall have the meaning set forth in the .Affordable Housing Agreement. 22721026565-0004 3060319.9 a06/25112 -2- Exhibit"A" - Ordinance No. 3955 1.4 "Applicable Rules" shall mean the following as they exist on the Effective Date: City's General Plan, the Specific Plan, Site Plan Review No. 11-005 (Beach Walk Apartments), and all other City zoning ordinances and other entitlements, development conditions and standards, public works standards, subdivision regulations, grading requirements, and provisions related to land development and building construction and governing the development of the Property in effect as of the Effective Date, including, without limitation, maximum height and size of buildings,provisions for dedication of land, density and intensity of use, growth management, environmental considerations, and design criteria applicable to the Project. Applicable Rules shall not include building standards adopted by the City for general application in the City. 1.5 "Area Median Income" shall mean the area median income for the County of Orange ("County") as published annually by the California Department of Housing and Community Development and determined in accordance with the U.S. Department of Housing and Urban Development criteria then in effect and published from time to time. For purposes of this Agreement,the qualifying limits shall be those limits for the County, as set forth in Title 25, California Code of Regulations, section 6932, as that section may be amended, modified or recodified from time to time. If the California Code of Regulations is amended or modified during the term of this Agreement so that such regulations do not specify the area median income for the County,the City and Developer shall negotiate in good faith to determine an equivalent authoritative source which determines median income for the County. 1.6 "City Councir' shall mean the City Council of the City. 1.7 "City Manager"shall mean the City Manager of the City. 1.8 "County" shall mean Orange County. 1.9 "Developer" shall mean DCO Beach Walk LLC, a Delaware limited liability company, and any of its successors and assigns to the fee interest in the Property. 1.10 "Development Fees" means and includes all fees charged by the City in connection with the application, processing and approval or issuance of permits for the development of property, including, without limitation: application fees; permit processing fees; inspection fees; utility capacity fees; service or connection fees; library/cultural enrichment fees, traffic impact fees; development impact or major facilities fees; park fees; flood control fees; environmental impact mitigation fees; the fees charged by City in connection with a development project for the purpose of defraying all or a portion of the cost of migrating the impacts of the Project and development of the public facilities related to development of the Project; and any similar governmental fees, charges and exactions required for the development of the Project. 1.11 "Discretionary Actions" and "Discretionary Approvals" means those actions and approvals which require the exercise of judgment, or imposition of a condition or obligation, by any officer, employee, review board, commission or department of the City. Discretionary Actions and Discretionary Approvals are distinguished from activities or approvals which merely require any officer, employee, review board, commission or department of the City 2272/026565-0004 3060319.9 a06/25/12 -3- Exhibit"A" - Ordinance No.3955 to determine whether or not there has been compliance with applicable statutes, ordinances, regulations or conditions of approval. 1.12 "Dwelling Unit" shall mean a place in the Project that is legally available to be rented by a person or family. 1.13 "Effective Date" means the date on which the ordinance approving this Agreement has been adopted by the City. 1.14 "Moderate Income household" means persons and families whose gross incomes do not exceed the amount published annually by the California Department of Housing and Community Development in accordance with California Health and Safety Code Section 50093. 1.15 "Market Rate Rental Dwelling Unit" shall mean those Dwelling Units in the Project that are not Affordable Dwelling Units nor governed by the Affordable Housing Agreement. 1.16 "Periodic Review" shall have the meaning assigned to such term in Paragraph 7.1. 1.17 "Planning Commission"means the Planning Commission of the City. 1.18 "Project" shall mean the development of the Property pursuant to this Agreement and the Applicable Rules, including Site Plan Review No. 11-005 (Beach Walk Apartments). 1.19 "Specific Plan" shall mean the Beach and Edinger Corridors Specific Plan adopted by the City Council on March 1, 2010, as may be amended from time to time. All other capitalized terms not otherwise defined herein shall have the meanings commonly recognized in the affordable housing industry. 2. Term of Agreement. This Agreement shall become operative and commence upon the Effective Date and remain in effect for a term of five (5) years (the"Term"). Upon the expiration or termination of the term, this Agreement shall be deemed terminated and have no further force and effect. The expiration or termination of this Agreement shall not result in a termination of the Affordable Housing Agreement provided Developer elected to develop the Project and the Affordable Housing Agreement was executed by the parties pursuant to Paragraph 4 of this Agreement. 3. Development of the Property. 3.1 General. The Developer agrees that the Property shall only be developed in accordance with the Site Plan Review No. 11-005 and any conditions and mitigation measures imposed on the Project through final approval of the Project, and the provisions of this Agreement. Notwithstanding anything set forth in this Agreement to the contrary, unless Developer proceeds with development of the Property, Developer is not obligated by the terms 2272/026565-0004 3060319.9 a06/25112 -4- Exhibit"A" - Ordinance No. 3955 of this Agreement to affirmatively act to develop all or any portion of the Project, pay any sums of money, dedicate any land, indemnify any party, or to otherwise meet or perform any obligation with respect to the Project, except and only as a condition of development of any portion of the Project. 3.2 Vested Right to Develop the Project. 3.2.1 Applicable Rules and Development Standards. Subject to Paragraph 3.3, below and the limitations therein, the City hereby grants to the Developer the vested right to develop the Project on the Property in accordance with the Applicable Rules and this Agreement. Subject to Paragraph 3.3,below, any change in the Applicable Rules adopted or becoming effective after the Effective Date shall not be applicable to or binding upon the Project or the Property without Developer's consent which it may grant or withhold in its sole discretion. Subject to Paragraph 3.3, below, this Agreement will bind the City to the terms and obligations specified in this Agreement and will limit, to the degree specified in this Agreement and under state law,the Riture exercise of the City's ability to regulate development of the Project. 3.2.2 Development Fees. During the Term of this Agreement, City shall not levy or require with respect to development of the Property any Development Fees except those in effect under City's ordinances or resolutions on the Effective Date of this Agreement and Developer shall not be subject to any increases in the existing Development Fees with respect to the Property except those increases set by automatic escalator in existence at the Effective Date of this Agreement. To this end, Developer shall only be obligated to pay the Development Fees set forth on Exhibit B attached to this Agreement pursuant to ordinances and resolutions establishing said fees and the payment schedule set forth on Exhibit B. Nothwithstanding the Development Fce obligation above, the Developer agrees to pay the Traffic Impact Fees (i.e.,the Circulation System Fee) set forth in Chapter 17.65 of the Huntington Beach Municipal Code and implementing resolutions as amended by the City, which Traffic Impact Fees for the Project are set forth on Exhibit B. Payment of the Traffic Impact Fee constitutes satisfactory mitigation for traffic impacts created by the proposed project as identified in Environmental Impact Report No. 08-008 Mitigation Measures 4.13-1 through 4.13-18. 3.2.3 Initiative Measures. Subject to Paragraph 3.3, below, the Developer and City intend that no moratorium or other limitation (whether relating to the rate, timing or sequence of the development of all or any part of the Project and whether enacted by initiative or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, certificates of occupancy or other entitlements shall apply to the Project to the extent such moratorium or other limitation is inconsistent or conflicts with this Agreement. 3.3 Reservations of Authority. 3.3.1 Federal or State Laws. Notwithstanding any provision to the contrary contained herein, the City expressly reserves the right to modify any of the Applicable Rules to the extent necessary to comply with applicable federal or state laws, codes or 2272/026565-0004 _ 3060319.9 a06i25/12 -5 Exhibit"A" - Ordinance No. 3955 regulations which preempt local jurisdiction including, by way of example, and without limiting the generality of the foregoing,the California Environmental Quality Act, all building codes, and any safety regulations, but such modifications shall be made only to the extent required thereunder; provided, however, that Developer does not waive its right to challenge or contest the validity of any such federal, state, or local laws, codes or regulations. 3.3.2 Emergency. Notwithstanding any provision to the contrary contained herein, the City expressly reserves the right to apply to the Project any development moratorium, limitation on the delivery of City-provided utility services, or other generally applicable emergency rule, regulation, law or ordinance affecting land use: (1) which is based on genuine health and safety concerns (other than general growth management issues); (2) which arises out of a documented emergency situation, as declared by the President of the United States, Governor of California, or the Mayor, City Council or City Manager of the City; and (3) which based upon its terms or its effect as applied, does not apply exclusively, primarily or disproportionately to the Project or the Property. 33.3 Project Completion, This Agreement and associated findings are based on the expectation that the Project will be constructed as follows: up to 156 Market Rate Rental Dwelling Units and 17 Affordable Dwelling Units will be completed such that a certificate of occupancy/final inspection will be issued during the term of the Agreement. In the event the Project is not completed in the manner and time frame contemplated herein, this Agreement may be terminated by the City as provided herein, and any rights contemplated herein will no longer be in effect. 3.3.4 Public Health Concerns. Notwithstanding any provision to the contrary contained herein, the City expressly reserves the right to apply to the Project any generally applicable rule, regulation, law or ordinance which does not affect the land use or development of the Project and which is based on concerns for the public health, safety or general welfare, including, but not limited to, building codes not otherwise preempted by State law. 3.3.5 New Engineering and Construction Standards. Notwithstanding any provision to the contrary contained herein, the City expressly reserves the right to modify any of the Applicable Rules if the City adopts new and/or amended regulations governing engineering and construction and grading standards and specifications including, without limitation, any and all uniform codes adopted by the City, including local amendments to these codes pursuant to state law allowing for such amendments; provided that such codes are uniformly applied to all new development projects of similar type as the Project within the City and provided further that any such modifications to grading standards can only be imposed prior to grading and any such modifications to engineering or construction standards can only be applied prior to the initiation of construction. Such codes include, without limitation, the City's Uniform Housing Code, Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code. 3.4 Cooperation and Indemnification. City agrees to cooperate with Developer in all reasonable manners in order to keep this Agreement in full force and effect. Notwithstanding the preceding sentence, in the event any legal action is instituted by a third 2272/026565-0004 3060319.9 a06/25/12 -6- Exhibit"A" - Ordinance No.3955 party or other government entity or official challenging the validity of this Agreement, the City and Developer agree to cooperate in defending such action, with the Developer to indemnify the City pursuant to the terms of Paragraph 14(m) of this Agreement. In the event of any litigation challenging the effectiveness of this Agreement or any portion thereof, this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending, unless a court of competent jurisdiction orders otherwise. 4. Affordable Housing. The Project is subject to the requirement of providing a total of seventeen (17) Affordable Dwelling Units, all of which shall be rental units and must remain Affordable Dwelling Units for at least fifty-five (55) years. In lieu of providing ten percent (10%) of the total units of the Project as Affordable Dwelling Units (17.3 Affordable Dwelling Units) prior to final inspection on the seventeenth (17th) Affordable Dwelling Unit, Developer shall pay a fee to the City for such remaining fractional unit in an amount equal to Six Thousand Four Hundred Ninety Two Dollars ($6,492.00). The City and Developer agree as a condition precedent to the issuance of a building permit for the Project that the Affordable Housing Agreement(attached hereto as Exhibit C)will be executed to memorialize the terms and conditions of the affordable housing components of the Project. The Project will include seventeen (17) Affordable Dwelling Units made available to and occupied by Moderate Income Households at an Affordable Rent. Upon its execution by the parties,the Developer shall record the Affordable Housing Agreement, which is in favor of the City and assures that the affordability covenants run with the land and remain in effect for the affordability period. Provided Developer proceeds with the development of the Project as evidenced by the issuance of a building permit for the Project, the Developer agrees to comply with all terms and provisions of the Affordable Housing Agreement and its attachments and acknowledges that any default thereunder shall also constitute a default under this Agreement. If Developer elects to not proceed with the development of the Project prior to issuance of a building permit for the Project, then at Developer's election, the City and Developer shall terminate this Agreement and remove and record a notice of termination of the requirements herein. Prior to approval of a Final Inspection for any phase of units for the Project, Developer shall have completed construction and shall have received all required Final Inspections for rental Affordable Dwelling Units equal to, on an aggregate basis, at least ten percent (10%) of the total units then being made available to the public for rental. For example, if Developer received all required Final Inspections on 45 units in the Project in the first phase, 6 of which were Affordable Dwelling Units, and then is requesting Final Inspection on 47 more units for the second phase, Developer shall have completed construction and shall have received all required Final Inspections for at least 4 more Affordable Dwelling Units, for a total of 10 Affordable Dwelling Units out of 92 total units. Concurrent with the Final Inspection for the final phase of units consisting of the 156th Market Rate Rental Dwelling Unit, Developer shall have completed construction and shall have received required Final Inspection for all 17 Affordable Dwelling Units. 5. Extension of Project Approvals. Unless a longer term would result under otherwise applicable state law, the term of any permits approved as part of the Project approvals shall be automatically extended for the term of this Agreement. 22721026565-0004 _ 3060319.9 a06/25/12 -7 Exhibit"A" - Ordinance No. 3955 6. Subsequent Discretionary Action and Approval. The City agrees not to unreasonably withhold, condition or delay any Discretionary Action or Discretionary Approval or other action or approval by the City which may be required by the Project subsequent to the execution of this Agreement. Upon the filing of a complete application and payment of appropriate processing fees by Developer, the City shall promptly commence and diligently schedule and convene all required public hearings in an expeditious manner consistent with the law and process all Discretionary Actions and Discretionary Approvals in an expeditious manner. 7. Compliance Review. 7.1 Periodic Review. Pursuant to Government Code section 65865.1, the City Manager or his or her designee shall, not less than once in every twelve (12) months, review the Project and this Agreement to ascertain whether or not the Developer is in full compliance with the terms of the Agreement(the"Periodic Review"). 7.2 Review Procedure. During a Periodic Review, Developer shall provide information reasonably requested by the City Manager or his or her designee that the Project is being developed in good faith compliance with the terms of this Agreement. If, as a result of a Periodic Review, the City finds and determines on the basis of substantial evidence that the Developer has not complied in good faith with the terms or conditions of this Agreement, the City shall issue a written "Notice of Non-Compliance"to the Developer specifying the grounds therefore and all facts demonstrating such non-compliance. The Developer's failure to cure the alleged non-compliance within sixty (60) calendar days after receipt of the notice, or, if such noncompliance is not capable of being cured within sixty (60) calendar days, the Developer's failure to initiate all actions required to cure such non-compliance within sixty(60) calendar days after receipt of the notice and completion of the cure of such non-compliance within one hundred twenty (120) calendar days, shall constitute a default under this Agreement on the part of the Developer and shall constitute grounds for the termination of this Agreement by the City as provided for below. If requested by Developer, City agrees to provide to Developer a certificate that Developer is in compliance with the terms of this Agreement, provided Developer reimburses City for all reasonable and direct costs and fees incurred by City with respect thereto. 7.3 Termination or Modification for Non-Compliance. Pursuant to Government Code section 65865.1, if the City Council finds and determines, on the basis of substantial evidence, that the Developer has not complied in good faith with the terms or conditions of this Agreement, the City Council may modify or terminate this Agreement. Any action by the City with respect to the termination or modification of this Agreement shall comply with the notice and public hearing requirements of Government Code section 65867 in addition to any other notice required by law. Additionally, the City shall give the Developer written notice of its intention to terminate or modify this Agreement and shall grant the Developer a reasonable opportunity to be heard on the matter and to oppose such termination or modification by the City. 2272/026565-0004 3060319.9 a06/25112 -8- Exhibit"A" - Ordinance No.3955 8. Modification,Amendment, Cancellation or Termination. 8.1 Amendment and Cancellation. Pursuant to Government Code section 65868, this Agreement may be amended or canceled, in whole or in part, by mutual written consent of the City and the Developer or their successors in interest. Public notice of the parties' intention to amend or cancel any portion of this Agreement shall be given in the manner provided by Government code section 65867. Any amendment to the Agreement shall be subject to the provisions of Government Code section 65867.5. 8.2 Modification. The City Planning and Building Director, with the written consent of the Developer, may make minor modifications to the Agreement without the need for formal action by the City's Planning Commission or City Council as long as such modifications do not alter the Term of this Agreement, the permitted uses, density or intensity of uses, the maximum height or size of buildings, provisions for reservations or dedication of land, conditions,terms, restrictions and requirements relating to subsequent Discretionary Actions and Approvals, and monetary contributions by Developer. 9. Defaults,Notice and Cure Periods,Events of Default and Remedies. 9.1 Default By the Developer. 9.1.1 Default. If the Developer does not perform its obligations under this Agreement in a timely manner,the City may exercise all rights and remedies provided in this Agreement,provided the City complies with the notice and cure provisions in this Agreement. 9.12 Notice of Default. If the Developer does not perform its obligations under this Agreement in a timely manner, the City through the City Manager may submit to the Developer a written notice of default in the manner prescribed in Paragraph 14(a) identifying with specificity those obligations of the Developer under this Agreement which have not been timely performed. Upon receipt of any such written notice of default, the Developer shall promptly commence to cure the identified defaults) at the earliest reasonable time after receipt of any such written notice of default and shall complete the cure of any such default(s)no later than sixty (60) calendar days after receipt of any such written notice of default, or if such default(s)is not capable of being cured within sixty (60) calendar days,no later than one hundred twenty (120) calendar days after receipt of any such written notice of default, provided the Developer commences the cure of any such default(s)within such sixty (60) calendar day period and thereafter diligently pursues such cure at all times until any such default(s)is cured. 9.1.3 Failure to Cure Default Procedure. If after the cure period provided in Paragraph 9.1.2 has elapsed, the City Manager finds and determines the Developer, or its successors,transferees and/or assignees, as the case may be, remains in default and that the City intends to terminate or modify this Agreement, or those transferred or assigned rights and obligations, as the case may be, the City Planning and Building Director shall make a report to the Planning Commission and then set a public hearing before the Planning Commission in accordance with the notice and hearing requirements of Government Code sections 65867 and 65868. If after public hearing, the Planning Commission finds and determines, on the basis of substantial evidence,that the Developer, or its successors, transferees and/or assigns, as the case 2272/026565-0004 _ 3060319.9 a06125/12 -g Exhibit"A" - Ordinance No.3955 may be, has not cured a default under this Agreement pursuant to this Paragraph 9, and that the City shall terminate or modify this Agreement, or those transferred or assigned rights and obligations, as the case may be, the Developer, and its successors, transferees and/or assigns, shall be entitled to appeal that finding and determination to the City Council. Such right of appeal shall include, but not be limited to, an objection to the manner in which the City intends to modify this Agreement if the City intends as a result of a default of the Developer, or one of its successors or assigns, to modify this Agreement. In the event of a finding and determination that all defaults are cured, there shall be no appeal by any person or entity. Nothing in this Paragraph 9 or this Agreement shall be construed as modifying or abrogating the City Council's review of Planning Commission actions or limiting the City's rights and remedies available at law or in equity, which shall include (without limitation) compelling the specific performance of the Developer's obligations under this Agreement. 9.1.4 Termination or Modification of Agreements. The City may terminate or modify this Agreement, or those transferred or assigned rights and obligations, as the case may be, after such final determination of the City Council, where no appeal is taken, after the expiration of the applicable appeal periods described herein. There shall be no modifications of this Agreement unless the City Council acts pursuant to Government Code sections 65867.5 and 65868,irrespective of whether an appeal is taken as provided herein. 9.1.5 Lender Protection Provisions. 9.1.5.1 Notice of Default. In addition to the notice provisions set forth in Paragraph 9.1.2,the City shall send a copy of any notice of default sent to the Developer or any of its successors or assigns to any lender that has made a loan then secured by a deed of trust against the Property, or a portion thereof, provided such lender shall have (a) delivered to the City written notice in the manner provided in Paragraph 14(a) of such lender's election to receive a copy of any such written notice of default and (b)provided to the City a recorded copy of any such deed of trust. Any such lender that makes a loan secured by a deed of trust against the Property, or a portion thereof, and delivers a written notice to the City and provides the City with a recorded copy of any such deed of trust in accordance with the provisions of this Paragraph 9.1.5.1 is herein referred to as a"Qualified Lender." 9.1.5.2 Right of a Qualified Lender to Cure a Default. The City shall send a written notice of any Developer default to each Qualified Lender. From and after receipt of any such written notice of default, each Qualified Lender shall have the right to cure any such default within the same cure periods as provided to the Developer hereunder. If the nature of any such default is such that a Qualified Lender cannot reasonably cure any such default without being the fee owner of the Property, or the applicable portion thereof, (as reasonably determined by the City), then so long as the Qualified Lender(s) is (are) diligently proceeding(as reasonably determined by the City)to foreclose the lien of its deed of trust against the fee owner of the Property, or the applicable portion thereof, and after completing any such foreclosure promptly commences the cure of any such default and thereafter diligently pursues the cure of such default to completion,then such Qualified Lender shall have any additional sixty - ------------ (60)calendar days following such foreclosure to cure any such default. 2272/026565-0004 3060319.9 a06/25/12 -10- Exhibit"A" - Ordinance No. 3955 9.1.5.3 Exercise of City's Remedies. Notwithstanding any other provision of this Agreement, the City shall not exercise any right or remedy to cancel or amend this Agreement during any cure period. 9.2 Default by the City. 9.2,1 Default. In the event the City does not accept, process or render a decision in a timely manner on necessary development permits, entitlements, or other land use or building approvals for use as provided in this Agreement upon compliance with the requirements therefore, or as otherwise agreed to by the City and Developer, or the City otherwise defaults under the provisions of this Agreement, subject to Paragraph 9.3, the Developer shall have all rights and remedies provided herein or by applicable law, which shall include compelling the specific performance of the City's obligations under this Agreement provided the Developer has first complied with the procedures in Paragraph 9.2.2. i 9.2.2 Notice of Default. Prior to the exercise of any other right or remedy arising out of a default by the City under this Agreement, the Developer shall first submit to the City a written notice of default stating with specificity those obligations which have not been performed under this Agreement. Upon receipt of the notice of default, the City shall promptly commence to cure the identified defaults) at the earliest reasonable time after receipt of the notice of default and shall complete the cure of such default(s) no later than thirty (30) calendar days after receipt of the notice of default, or such longer period as is reasonably necessary to remedy such default(s), provided the City shall continuously and diligently pursue each remedy at all times until such defaults) is cured, provided, however, in no event shall the cure period exceed one hundred twenty (120) calendar days. In the case of a dispute as to whether the City is in default under this Agreement or whether the City has cured the default, or to seek the enforcement of this Agreement,the City and the Developer may submit the matter to negotiation/mediation pursuant to Paragraph 14(o)of this Agreement. 9.3 Monetary Damages. The Developer and City acknowledge that neither the City nor the Developer would have entered into this Agreement if either were liable for monetary damages under or with respect to this Agreement or the application thereof. Both the City and the Developer agree and recognize that, as a practical matter, it may not be possible to determine an amount of monetary damages which would adequately compensate the Developer for its investment of time and financial resources in planning to arrive at the kind, location, intensity of use, and improvements for the Project, nor to calculate the consideration the City would require to enter into this Agreement to justify such exposure. Therefore, the City and the Developer agree that neither shall be liable for monetary damages under or with respect to this Agreement or the application thereof and the City and the Developer covenant not to sue for or claim any monetary damages for the breach of any provision of this Agreement. This foregoing waiver shall not be deemed to apply to any fees or other monetary amounts specifically required to be paid by the Developer to the City pursuant to this Agreement, including,but not limited to, any amounts due pursuant to Paragraph 14(m). The foregoing is not intended to prohibit Developer from bringing any legal claim that Developer otherwise would have against City in the absence of this Agreement(i.e.,non-contract claims and causes of action). 2272/026565-0004 3060319.9 a06125/12 -1 1- Exhibit"A" - Ordinance No. 3955 10. Administration of Agreement and Resolution of Disputes. The Developer shall at all times have the right to appeal to the City Council any decision or determination made by any employee, agent or other representative of the City concerning the Project or the interpretation and administration of this Agreement. All City Council decisions or determinations regarding the Project or the administration of this Agreement shall also be subject to judicial review pursuant to Code of Civil Procedure section 1094.5, provided that,pursuant to Code of Civil Procedure section 1094.6, any such action must be filed in a court of competent jurisdiction not later than ninety (90) calendar days after the date on which the City Council's decision becomes final. In addition., in the event the Developer and the City cannot agree whether a default on the part of the Developer, or any of its successors or assigns, under this Agreement exists or whether or not any such default has been cured, then the City or the Developer may submit the matter to negotiation/mediation pursuant to Paragraph 14(o). 11. Recordation of this Agreement. Pursuant to Government Code section 65868.5, the City Clerk shall record a copy of this Agreement in the Official Records of the County within ten(10)calendar days after the mutual execution of this Agreement. 12. Constructive Notice and Acceptance. Every person or entity who now or hereafter owns or acquires any right, title or interest in or to any portion of the Property is, and shall be, conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Property. 13. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the City, the Developer, and their respective successors and assigns. No other person or entity shall have any right of action based upon any provision of this Agreement. 14. Miscellaneous. (a) Notices. All notices which are allowed or required to be given hereunder shall be in writing and(1) shall be deemed given and received when personally delivered or (2) shall be sent by registered or certified mail or overnight mail service, addressed to the applicable designated person by one party to the other in writing, and shall be deemed received on the second business day after such mailing. If to City: City of Huntington Beach 2000 Main Street Huntington Beach,CA 92648 Attn: City Manager Tel.No.: (714) 536-5575 Fax No.: (714) 536-5233 2272/026565-0004 3060319.9 a0625/12 -12- Exhibit"A" - Ordinance No. 3955 If to Developer: DCO Beach Walk LLC --- -- c/o UDR, Inc. 1745 Shea Center Drive, Suite 200 Highlands Ranch, CO 80129 Attn: Warren L. Troupe Copy to: Rutan&Tucker,LLP 611 Anton Blvd., Suite 14 Costa Mesa,CA 92626 Attn: John Ramirez,Esq. Tel.No. (714) 641-5100 Fax.No. (714) 546-9035 (b) Severability. If any part of this Agreement is declared invalid for any reason, such invalidity shall not affect the validity of the remainder of this Agreement unless the invalid provision is a material part of this Agreement. The other parts of this Agreement shall remain in effect as if this Agreement had been executed without the invalid part. In the event any material provision of this Agreement is determined to be invalid, void or voidable, City or Developer may terminate this Agreement. (c) Entire Agreement. This Agreement represents the entire agreement between the City and the Developer with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether oral or written, between the City and the Developer with respect to the matters contained in this Agreement. (d) Further Assurances. The City and the Developer agree to perform, from time to time, such further acts and to execute and deliver such further instruments reasonably necessary to effect the intents and purposes of this Agreement, provided that the intended obligations of the City and the Developer are not thereby modified. (e) Inurement and Assignment. This Agreement shall inure to the benefit of and bind the successors and assigns of the City and the Developer, and may be assigned by the Developer to any party or parties purchasing all or any part of the fee interest in the Property. The specific rights and obligations of this Agreement shall be deemed covenants running with the land that concern and affect Developer's fee interest in the Property. The provisions of this Paragraph 14(e) require an assignment agreement whereby, upon the sale, transfer or assignment of all or a portion of the Property to a party that acquires fee title to the Property or any portion thereof, the party that acquires fee title to the Property must assume all responsibilities and obligations of this Agreement for Developer to be released of all executory obligations under this Agreement that relate to the transferred property; provided,however,that Developer shall not be released from liability for any default of Developer committed prior to the date of the transfer. (f) Negation of Agency. The City and the Developer acknowledge that, in entering into and performing under this Agreement, each is acting as an independent entity and not as an agent of the other in any respect. Nothing contained herein or in any document 2272/026565-0004 -13- 30603199 a06125l12 Exhibit"A" - Ordinance No. 3955 executed in connection herewith shall be construed as making the City and the Developer joint venture's,partners or employer/employee. (g) Attorney's Fees. in the event of any claim, dispute or controversy arising out of or relating to this Agreement, including an action for declaratory relief, the prevailing parry in such action or proceeding shall not be entitled to recover its court costs and reasonable out-of-pocket expenses. (h) Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. (i) Force Majeure. Neither party hereunder shall be deemed to be in default where delays or defaults are due to one or more of the following events, providing that any one or more of such event(s) actually delays or interferes with the timely performance of the matter to which it would apply and despite the exercise of diligence and good business practices and such event(s) are beyond the reasonable control of the party claiming such interference: war, terrorism, terrorist acts, insurrection, strikes, lock-outs, unavailability in the marketplace of essential labor, tools,materials or supplies, failure of any contractor, subcontractor, or consultant to timely perform (so long as Developer is not otherwise in default of any obligation under this Agreement and Developer is exercising commercially reasonable diligence to enforce its rights under its agreement with such contractor, subcontractor or consultant to cause such contractor, subcontractor or consultant to perform in accordance with such agreement), riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, or unusually severe weather. An extension of time for any such cause (a"Force Majeure Delay") shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the parry claiming such extension is sent to the other parry within thirty (30) calendar days of actual knowledge of the commencement of the cause. Notwithstanding the foregoing, none of the foregoing events shall constitute a Force Majeure Delay unless and until the parry claiming such delay and interference delivers to the other party written notice describing the event, its cause, when and how such party obtained knowledge, the date and the event commenced, and the estimated delay resulting therefrom. 0) Paragraph Headings. The paragraph headings contained in this Agreement are for convenience and identification only and shall not be deemed to limit or define the contents to which they relate. (k) Time of Essence. Time is of the essence of this Agreement, and all performances required hereunder shall be completed within the time periods specified. Any failure of performance shall be deemed as a material breach of this Agreement. (1) CounteMarts. This Agreement and any modifications hereto may be executed in any number of counterparts with the same force and effect as if executed in the form of a single document. 2272/026565-0004 3060319.9 a06/25/12 -14- Exhibit"A" - Ordinance No. 3955 (m) Indemnification. The Developer agrees, as a condition of approval of this Agreement, to indemnify, defend and hold harmless at the Developer's expense, the City, the City Council, and the City's agents, officers and employees from and against any claim, action or proceeding to attack, review, set aside, void or annul the approval of this Agreement, the Specific Plan or EIR, or to determine the reasonableness, legality or validity of any provision hereof or obligation contained herein. Developer also agrees to indemnify the City, the City Council, and the City's officials, agents and employees for any claims, acts or proceedings relating to the Project's affordable housing requirements, including, but not limited to, any challenge to the City's Housing Element to the extent arising from Developer's failure to comply with the Project's affordable housing requirements as set forth in this Agreement and the Affordable Housing Agreement. The indemnity described in this section is not subject to the provisions of Paragraph 3.1 providing that obligations cease if the Project does not go forward. The City shall promptly notify the Developer of any such claim, action or proceeding of which the City receives notice, and the City will cooperate fully with the Developer in the defense thereof. The Developer shall provide a defense to the City with counsel reasonably selected by Developer and City to defend both the City and Developer, and shall reimburse the City for any court costs which the City may be required to pay as a result of any such claim, action or proceeding. The City may, in its sole discretion, participate in the defense of any such claim, action or proceeding at its own expense, but such participation shall not relieve the Developer of the obligations of this Paragraph 14(m). (n) Hold Harmless Agreement. City and Developer mutually agree to, and shall hold each other and each of the other's elective and appointed councils, boards, commissions, directors, officers, partners, agents, representatives and employees harmless from any liability for damage or claims for personal injury, including death, and from claims for property damage which may arise from the activities of the other's or contractor's, subcontractors, agents, or employees which relate to the Project whether such activities be by City or Developer, or by any of City's or the Developer's contractors, subcontractors, or by anyone or more persons indirectly employed by, or acting as agent for Developer, any of Developer's or the City's contractors or subcontractors. City and Developer agree to and shall defend the other and each of the other's elective and appointive councils, boards, directors, commissioners, officers, partners, agents, representatives and employees from any suits or actions at law or in equity for damage caused or alleged to have been caused by reason of the aforementioned activities which relate to the Project. (o) Alternative Dispute Resolution Procedure. (1) Dispute. If a dispute arises concerning whether the City or the Developer or any of Developer's successors or assigns is in default under this Agreement or whether any such default has been cured or whether or not a dispute is subject to this Paragraph 14(o) (a"Dispute"), then such dispute shall be subject to negotiation between the parties to this Agreement, and if then not resolved shall be subject to nonbinding mediation, both as set forth below, before either party may institute legal proceedings. 2272/026565-0004 3060319.9 a06/25/12 -15- Exhibit"A" - Ordinance No.3955 (2) Negotiation. If a Dispute arises, the parties agree to negotiate in good faith to resolve the Dispute. If the negotiations do not resolve the Dispute to the reasonable satisfaction of the parties within fifteen (15) calendar days from a written request for a negotiation, then each party shall give notice to the other party identifying an official or executive officer who has authority to resolve the Dispute to meet in person with the other party's designated official or executive officer who is similarly authorized. The designated persons identified by each party shall meet in person for one day within the 20-day period following the expiration of the 15-day period and the designated persons shall attempt in good faith to resolve the Dispute. If the designated persons are unable to resolve the Dispute, then the Dispute shall be submitted to non-binding mediation. (3) Mediation. (i) Within fifteen (15) calendar days following the designated persons' meeting described in Paragraph 14(o)(2), above, either party may initiate non-binding mediation (the "Mediation"), conducted by Judicial Arbitration & Mediation Services, Inc. ("JAMS") or other agreed upon mediator. Either party may initiate the Mediation by written notice to the other party. (ii) The mediator shall be a retired judge or other mediator, selected by mutual agreement of the parties, and if they cannot agree within fifteen(15) calendar days after the Mediation notice, the mediator shall be selected through the procedures regularly followed by JAMS. The Mediation shall be held within fifteen (15) calendar days after the Mediator is selected, or a longer period as the parties and the mediator mutually decide. (iii) If the Dispute is not fully resolved by mutual agreement of the parties within fifteen(15) calendar days after completion of the Mediation, then either party may institute legal proceedings. (iv) The parties shall bear equally the cost of the mediator's fees and expenses, but each party shall pay its own attorneys' and expert witness fees and any other associated costs in connection with the mediation. (4) Preservation of Rights. Nothing in Paragraph 14(o) shall limit a party's right to seek an injunction or restraining order from a court in circumstances where such equitable relief is deemed necessary by a party to preserve such party's rights. (p) Reference of California Law. Unless expressly stated to the contrary, all references to statutes herein are to the California codes. (q). Interpretation. The language in all parts of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any party. The parties hereto acknowledge and agree that this Agreement has been prepared jointly by the parties and has been the subject of arm's length and careful negotiation over a considerable period of time, that each party has independently reviewed this Agreement -with legal counsel, and that each party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this 22721026565-0004 3060319,9 a06/25112 -16- Exhibit"A" - Ordinance.No.3955 Agreement shall not be interpreted or construed against the party preparing it, and instead other rules of interpretation and construction shall be utilized. [signatures on next page] 22721026565-0004 3060319.9 a06M/12 -1 7_ Exhibit"A" - Ordinance No. 3955 IN WITNESS WHEREOF, the City and the Developer hereto have each executed this Agreement as of the date first written above. "DEVELOPER" DCO Beach Walk LLC,a Delaware limited liability company By: DCO Beach LLC,a Delaware limited liability company, its Managing Member By: DCO Realty, Inc., a Delaware corporation, its de,Me ber By: Name. Y474-e� 11?,z4 k- Title: 7:�ld 'i2h "CITY" City of Huntington Beach, a municipal corporation of the State of Califo is Mayor ATTEST: 'ji Clerk ,_.—APPROVED AS TO FORM �Amey /r) r, 7 22721026565-0004 3060319.9 a06125M - Exhibit"A" - Ordinance No. 3955 ACKNOWLEDGMENT State of Colorado } County of !�rUc 1 -S ) On 4�/i y �V 5 20l-Z'- ,before me, -� e— 62/i',J 7 (insert name and title of the officer) Notary Public,personally appeared 116Y41 6 10-04 who proved to me on the basis of satisfactory ryry evidence to be the person(s) whose names) islare subscribed to the within instrument and acknowledged to me that he/she/they executed the samt, 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. I certify under PENALTY OF PERJURY under the laws of the State of Colorado that the foregoing paragraph is true and correct. WITNESS my hand and official seal. S Signature G � �`/ ' ` �Ot g R y ISeal) s J, PUBOG ;.00 ZF •f�%,yTc�0fi C OO�`\\\\�� State of Califo*'rrniia County of On Actvice 5; �i - \ before me, _gyp S ZA (insert name azd tiBe of the officer) Notary Public,personally appeared ,4LD l��JS j<i—PI' .. A-rJ.D : O"" who proved to me on the basis of satisfactory evidence to be the personal whose narmts)-it subscribed to the within instrument and acknowledged to rz,e that;�executed the same in hisA then uthorized capacity(~esD and that by4ii&4e tjeir'ignatur s )on the instrument the persol s, or the entity upon behalf of which the persoross)acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. W1I'NESS my hand and official seal. Signature ' / j' n (Seal) P. L. ESPARZA Commission# 1857021 Z;`°" Notary Public-California z Orange County IVIV Comm.Ex ires Au 4,2013 2272/026565-0004 3060314.9 a0625112 Exhibit"A" - Ordinance No.3955 EXHIBIT"A"TO]DEVELOPMENT AGREEMENT LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA,AND IS DESCRIBED AS FOLLOWS: PARCEL A: BLOCK 1908 OF THE EAST SIDE VILLA TRACT, IN THE CITY OF HUNTINGTON BEACH,AS SHOWN ON A MAP RECORDED IN BOOK 4,PAGE 65 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL B: THE NORTH HALF OF BLOCK 1808,EAST SIDE VILLA TRACT, IN THE CITY OF HUNTINGTON BEACH,AS SHOWN ON A MAP RECORDED IN BOOK 4,PAGE 65 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, EXCEPT ALL MINERALS, OIL, GAS,AND OTHER HYDROCARBON SUBSTANCES IN OR UNDER SAID LAND, BUT WITHOUT THE RIGHT OF ENTRY ON THE SURFACE OF SAID LAND FOR THE PURPOSE OF EXPLOITING FOR,DEVELOPING, PRODUCING, REMOVING AND MARKETING SAID SUBSTANCES,AS RESERVED IN AN INSTRUMENT RECORDED MAY 25, 1953 IN BOOK 2508,PAGE 200 OF OFFICIAL RECORDS. PARCEL C: AN EASEMENT FOR INGRESS AND EGRESS FOR PEDESTRIAN PURPOSES OVER A PORTION OF THE NORTH HALF OF BLOCK 1807 OF EAST SIDE VILLA TRACT,IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 4,PAGE 65 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID NORTH HALF OF BLOCK 1807; THENCE ALONG THE SOUTHERLY LINE OF SAID NORTH HALF OF BLOCK 1807, SOUTH 89017'25" WEST 6.50 FEET TO A LINE PARALLEL WITH AND DISTANT 6.50 FEET WESTERLY OF THE EASTERLY LINE OF SAID BLOCK 1807; THENCE ALONG SAID PARALLEL LINE NORTH 00040'00" WEST 8.00 FEET TO A LINE PARALLEL WITH AND DISTANT 8.00 FEET NORTHERLY OF SAID SOUTHERLY LINE OF THE NORTH HALF OF BLOCK 1807; THENCE ALONG LAST SAID PARALLEL LINE NORTH 89°17'25" EAST 6.50 FEET TO SAID EASTERLY LINE OF BLOCK 1807; THENCE 22721026565-0004 3060319.9 a06/25112 Exhibit"A" - Ordinance No.3955 ALONG SAID EASTERLY LINE SOUTH 00004'00" EAST 9.00 FEET TO SAID SOUTHEASTERLY CORNER AND TRUE POINT OF BEGINNING. APN: APN 025-200-72 2272/026565-0004 3060319.9 a06125/12 Exhibit"A" - Ordinance No. 3955 EXHIBIT"B"TO DEVELOPMENT AGREEMENT DEVELOPMENT FEE SCHEDULE BEACH WALK The Project shall be subject to all fees in effect as of June 1, 2012,including those fees specified herein and on the Planning and Building and.Public Works.Fee Schedules attached hereto. In no event shall Developer be charged any development fees that go into effect after the date of this agreement. Exhibit "B" and the fee schedules attached hereto are a list of known fees that are applicable to this project_ However, the City reserves the right to charge any fee not on that list but in effect prior to execution of this Agreement but inadvertently left out of the exhibit. . Assumptions: Number of Units for Project: 173 Square Footage of Existing Building Area: 63,760 Development Impact Fee Fee Law Enforcement Facilities No Fee Fire Suppression Facilities No Fee Public Library Facilities (including any fees Development—$0.44 per gross square foot related to library enrichment, development and (including garages)_$TBD other library-related fees) Enrichment—$0.15 per gross square foot (including garages)_$TBD School Fees per School District(contact school district for additional information 714-536-7521 x 250) Park Land/Open Space&Facilities(including $0.86 per gross square foot(including garages) any Parks and Recreation-related fees) _$TBD Circulation System Fee(Traffic Impact Fee) $1,220.35/unit=$211,120.55 Less Credit $2,097.43 per 1,000 gross square feet of building area = $133,375.32 Beach and Edinger Corridors Specific Plan Fee $300/unit=$51,900 Eqfily.Fees Storm Drainage Fee $13,880/gross acre=$TBD 2272/026565-0004 3060319.9 a06125/12 Exhibit"A" - Ordinance No.3955 Orange County Sanitation District(OCSD) Studios at$1,073/unit; One-Bedrooms Units at Capital Facilities Capacity Charge(CFCC) $1,670/unit; Two-Bedroom Units at $2,337/unit=$TBD Less Credit $1,734 per 1,000 gross square feet of building area = $110,559.84 Sewer Connection $1,801.00/unit=$311,573 Water Capital Facilities Charge—Residential Fee Based Per Water Meter at Rate Designated by Meter Size(see attached Public Works Fee Schedule-MD) .Less Credit—Non-residential $300/acre or fraction thereo All other Public Works fees See attached Public Works Fee Schedule Planning and Building Fees See attached schedules of Building Permit Fees and Planning and Building Fee Schedule WIL applicable fees shall applyl 2272/026565-0004 3060319.9 06125/12 Exhibit"A" - Ordinance No.3955 u CIS F 1�[�J�17`1NGT° Cf0 DEPARTMENT OF PLANNING AND BUILDING FEE SCHEDULE CITY CouNcE APPR®VED iuNE 15,2609 EFFECTIVE`:October ,241f, PLANNING COMMISSION ACTIONS: FEES Annexation Request 10000100.42480 $10,400+fully burdened costs Coastal Development Permit" 42415 $6,602 Conditional Use Permit: New Residential 42420 9,989 Commercial/Industrial/Mixed Use less than%2 Block 42420 8,422 Alcohol,Dancing or Live Entertainment 42420 4,939 Mixed Use, %2 Block or Greater 42420 18,510 Entitlement Continuance 42425 346 Development Agreement Full Hourly Cost Original Contract or Significant Amendment 42430 33,162 Dep+costs Minor Amendment 42430, 19,418 Dep.+costs Annual Review(Planning Commission Hearing) 42430 4,286 Annual Review(Administrative Review) 42430 3,388 Entitlement Plan Amendment New Hearing 42435 3,910 No Change to Conditions-Director Review 42440 2,274 General Plan Amendment—GPA Major 42445 46581 General Plan Amendment-GPA Minor 42445 24,890 General Plan Conformance 42445 5,096 Local Coastal Program Amendment 42450 14,003 Reversion to Acreage 42480 3,775 Special Permit 42480 3,162 each Tentative Tract Map 42460 23,896+30/lot Variance"" 42465 4,234 Zoning Map Amendment'" 42470 24,309 Precise Plan of Street Alignment 42480 16,546 Mobile Home Park Conversion Review 42470 37,148 Zoning Text Amendment-Major 42475 15,163 Zoning Text Amendment-Minor 42475 t 8,429 Includes 4%automation fee I Plus costs for Notice of Publication,if applicable **Coastal Development Permit reduced 50%when processed concurrently with a Conditional Use Permit,Tentative Map or Variance *$* 50 percent of fee credited towards future entitlements **** Variance fee reduced 50%when processed concurrently with a Conditional Use Permit ***** ZMA fee reduced 50%when processed concurrently with a General Plan Amendment Revised 10/01/2011 Exhibit"A" - Ordinance No. 3955 ZONING AIDNIINISTRATOR ACTIONS: FEES Coastal Development Permit** Single Family Dwelling 10000100.42605 2,967 All Others 42605 3,533 Conditional Use Permit 42610 4,556 Conditional Use Permit(Fences) 42610 2,281 Entitlement Continuance 42615 260 Entitlement Plan Amendment New Hearing 42620 2,105 No Change to Conditions -Director Review 42620 1,519 Temporary Use Permit 42630 2,139+500 bond if applicable Tentative Parcel Map 42635 4,638 Tentative Parcel Map Waiver 42635 2,224 Tentative Tract Map 42460 7,714+30/lot Variance**** 42640 2,923 ENVYRON IENTAL REVIEW: FEES Environmental Assessment 10000100.42705 $10,679 Historic Structures 42705 $ 5,242 Mitigated Negative Declaration 42705 3,215 (+EA Study Fee) Mitigation Monitoring: 42705 Mitigated Negative Declaration 2,724 Environmental Impact Report 8%of EIR Environmental Impact Report(EIR)- 42710 99,922 Dep. + Consultant Pre ared Costs Environmental Impact Report(EIR)- 42710 133,706 Dep. + Staff Prepared costs Department of Fish and Game(Fees change yearly— Fee as of 01/01/11) Negative Declaration/Mitigated Negative Declaration 2,044.00 Environmental Impact Report 2,839.25 Certified Regulatory Program CHECKS MADE OUT TO: COUNTY OF ORANGE and sent to County of Orange with NOD "Includes 4%automation fee 1 Plus costs for Notice of Publication,if applicable. ** 50 percent of fee credited towards future entitlements *** Variance fee reduced 50%when processed concurrently with a Conditional Use Permit Revised 10/01/2011 Exhibit"A" - Ordinance No. 3955 STAFF REVIEW AND SETdVICES: FEE* Address Assignment Processing 10000100.42755 $1,256/ ro'ect Address Change/Single Tenant Assignment 42755 255 Address Assignment—Meter only 42755 135 Administrative Permit 42820 List 1: Outdoor Dining,Eating and Drinking 42820 612 Establishments,Fence Extensions(<8%Personal Enrichment Services over 5,000 sq.ft.,and Home Occupations List 2: Parking Reduction,Carts&Kiosks,Waiver of 42820 1,090 Development Standards,Non-conforming structure additions List 3:Privacy Gates,Game Centers,Accessory Dwelling 42820 1,451 Units,Manufactured Home Parks List 4:Personal Enrichment Services under 5,000 sq ft 0 Animal Permits 42820 215 Categorical Exclusion letter(coastal) 42820 260 CC&R Review 42760 1,254 Certificate of Compliance 42765 755 Design Review Board 42775 905 Extension of Time 42820 479 Final Parcel Map 42780 1,374 Final Tract Ma 42780 1,962 Initial Plan,Zoning&Review(land use changes,zone 42785 357 changes,conceptual plans) Limited Sign Permit 42790 837 Lot Line Adjustment/Lot Merger 42820 551 Planned Sign Program Single User and Amendments to Existing Programs 42790 880 Multiple Users 42790 1,484 Preliminary Plan Review: *** Single Family Residential 42795 832 Multi-Family Residential(up to 9 units) 42795 1,986 Multi-Family Residential(10+units) 42795 2,538 Non-Residential 42795 2,761 Sign Code Exception—Staff 42625 996 Sign Code Exception—Design Review Board 42625 1,934 [Site Plan Review 42820 5,519 Temporary and Promotional Activity Sign Permit 42800 78 Temporary Sales/Event Permit 42805 281 Wireless Permit Applications 42810 "costs" Zoning Letter: Flood Verification 42810 78 Simple Staff Review 68 Zoning Letter Staff Review 151 Zoning Research/Information 42810 130/hr. (min. 1 hr.) Planning Consultation/Meeting Fee(per planner) 42810 115/hr. (min. 1 hr.) *Includes 4%automation fee *** 50 percent of fee credited towards future entitlements Revised 1 010 1/2 0 1 1 Exhibit"A" - Ordinance No. 3955 APPEALS: FEE* To Planning Commission Single family owner appealing decision of own 10000100.42815 $1,917 property Others 42815 2,501 Appeal of Director's Decision(PC Public Hearing) 42815 494 Appeal of Director's Interpretation(PC Non-Public) 42815 416 To City Council(file w/City Clerk's Office) Single family owner appealing decision of own 42815 $1,763 property 42815 3,383 Others AFFORDABLE HOUSING IN-LIEU FEE -200$ E* 3 Unit Projects x $8,140= 42820 $24,420 4 Unit Projects x $9,150= 42820 $36,600 5 Unit Projects x $10,170= 42820 $50,850 6 Unit Projects x $11,180= 42820 $67,080 7 Unit Projects x$12,200= 42820 $85,400 8 Unit Projects x$13,23 0= 42820 $105,840 9 Unit Projects x $14,240= 42820 1 $128,160 OTHER FEES: FEE: Downtown Specific Plan Fee 42820 $831 per acre Outdoor Dining: 42820 License Agreement Application Fee 30 License Agreement Use Charge 0.01/sq.ft. License Agreement Code Enforcement Fee 4/sq. ft. Park and Recreation Fee(see attached) Traffic Impact Fee See Dept.of Public Works General Plan Maintenance Fee 42825 $1.85/$1,000 valuation of new construction ' Includes 4%automation fee ADDITIONAL FEES MAY BK REQUIRED: ENTITLEMENTS FOR DEVELOPMENT INCLUDE INITIAL REVIEW OF PLANS AND ONE SUBSEQUENT REVISION SUBMITTAL. REVIEW OF PLANS IN EXCESS OF ONE REVISION SHALL BE CHARGED THE FULLY BURDENED HOURLY RATE. ALSO SEE DEPARTMENTS OF PUBLIC WORKS,FIRE,AND THE BUSINESS LICENSE DIVISION FOR ADDITIONAL FEES Revised 10/01/2011 Exhibit"A" - Ordinance No. 3955 a CI OF HUNTINGTON BEACH PLANNING DEPARTMENT Park and Recreation Fees CITY COUNCIL,APPROVED DUNE.17,2002 EFFECTIVE JULY 17,2002 Pursuant to City Council Ordinance No. 3562,and Resolution Nos.2002-56 and 2002-57 adopted on June 17,2002, park in-lieu fees for residential developments involving a subdivision map are as follows: PROJECTS REQUIRING A SUBDIVISION MAP(20900209.47115) Tract Map No./Parcel Map No: Park and Recreation Fee Formula Per Chapter 254: 5 (#units x 2.68) x Per acre value of project site*=Park In Lieu Fee 1,000 * Based on City-approved site-specific appraisal of project site CITY:COUNCIL APPROVED DECEMBER 16,:2002 EFFECTIVE DECEMBER 16,2002 Pursuant to City Council Ordinance No. 3596, and Resolution No. 2002-129 adopted on December 16, 2002, park fees for commercial and industrial developments and residential developments not requiring a subdivision map are as follows: PROJECTS NOT:REQUIRING A%SUBDIVISION MAP 20900209.47280 Commercial and Industrial Floor Area=$0.23/square foot Residential Floor Area(includes garages)_$0.86/square foot Date Fees Paid: Plan Check No.: Receipt No.: Job Location: Tentative Tract Map No./Tentative Parcel Map No.: Revised I0/01/2011 Exhibit"A" - Ordinance No.3955 City of Huntington Beach J1 Department of Planning&Building Oro 0 BUILDING PERMIT FEES 2000 Main Street,Huntington Beach,CA 92648 HUNTiNGTON BEACH Office: (714)536-5241 Fax: (714) 374-1647 Fee TjEe (low(Determined Rate Permit Processing Charge Flat fee @ Permit or Plan Review Submittal $30.00 Building Inspection Fees Based upon Building Valuation Table for construction See Table _ costs per sq.ft.to determine project valuation Page 8). Below Foundation or Partial Building Based upon Building Valuation Table for construction See Table Inspection costs per s . ft. to determine project valuation(Page 8). Below PROJECT VALUATION TABLE Based on Building Valuation Data Published in the 2001 March-April Building Standards Magazine by the International Conference of Building Officials and local miscellaneous cate ones that have been surveyed Pro'eet Valuation Ins ection Fees $1 to$500 $55.00 $501 to$2,000 $55.00 for the first$500;plus $ 3.60 for each additional$100 or fraction thereof, to and Including$2,000 $2,001 to $25,000 $110.00 for the first$2,000;plus $ 16.18 for each additional$1,000 or fraction thereof, to and including$25,000 $25,001 to $50,000 $483.00 for the first$25,000;plus $ 11.68 for each additional$1,000 or fraction thereof,to and including$50,000 $50,001 to $100,000 $775.00 for the first$50,000;plus $ 8.80 for each additional$1,000 or fraction thereof,to and including$100,000 $100,001 to$500,000 $1,180.00 for the first$100,000;plus $ 6.46 for each additional$1,000 or fraction thereof,to and including$500,000 $500,001 to $1,000,000 $3,762.00 for the first$500,000;plus $ 5.49 for each additional$1,000 or fraction thereof,to and including$1,000,000 $1,000,000 and up $6,505.00 for the first$1,000,000;plus $ 4.22 for each additional$1,000 or fraction thereof A 4.0%Automation Fee will be added to all fees listed pursuant to Resolution 2009-32 GA l3uildingAdmin/Web/Fee Schedule 08/17f09.doe Effective 08/17/09 1- Exhibit"A" - Ordinance No. 3955 ° d OTHER BUILDING INEPT CHARGES (714)536-5241 Fee T How Determined Rate Building Plan Review Collected at time of building plan review submittal& assessed @%of building inspection fee($110.68min.) 79% Exception: • Standard production units after the model unit has been reviewed @%of building inspection fee 26% (changes to be reviewed on an hourly basis) Projects requiring review in excess of the following: Project Valuation #of Reviews $100,000 or less 2 $ 133.00 per $100,000-$1,000,000 3 $1,000,001—more 4 hour Refund Processing Fee Minimum Fee Retained by City $60.00 Record Retention Fee Each sheet of permitted drawings $5.00 Each permit issued $1.50 Counter Staff Research: More than 10 minutes (estimate to complete)Hours x $73.00 Rate (Minimum Charge) Copies from Microfilm(in 16mm or 35mm— lst copy $3.00 addition to Research) Each additional copy on same address or area $1.50 Copies Not on Microfilm(in. Each copy $0.10 addition to Research Plan Review Extension Flat Fee $100.00 Building Permit Extension Flat Fee $100.00 Building Relocation 2 Hour Minimum See Special Inspection Services Investigation Fee-for work Equal to the amount of standard inspection fee for performed without a permit or permit to which it applies OR the actual time spent $250.00 inspection investigating,whichever is greater,but not less than Mmum. $250.00 minimum Re-inspection Flat fee $120.00 Processing Fee Flat Fee $30.00 (Change of contractor,owner,or Special Inspector Program Permit Supplement Flat Fee,Plus $30.00+ (Issue Revised Permits,Adjust Microfilm Fee $1.50+ Permits,Admin.Permits,or Fee Schedule Line Items Line Items those NOT LISTED) Minimum Inspection Fee does not apply) Expired Permits • Reactivate permit for projects that have been $32.00+ expired for LESS than—6months. 1/2 New Inspect Fee Reactivate permit for projects that have been $32.00+ expired for GREATER 6 months New Inspect Fee Recording&Release of Non- Flat Fee $110.00+ Compliance due to Permit $10.00 to Expiration&Similar Services County Recorder A 4.0%Automation Fee will be added to all fees listed pursuant to Resolution 2009-32 WBuildingAdmin/Web/Fee Schedule 08/17/09.doc Effective 09/17/09 -2- Exhibit"A" - Ordinance No. 3955 BUILDING PERMIT FEES CERTIFICATE OF OCCUPANCY (714) 536-5241 Fee Type How Determined Rate Certificate of Occupancy: a With Building Permit No Fee To verify proper use and • Modified Certificate w/out additional inspection or $30.00 terms of occupancy in new Administrative services and existing commercial and Certificate with additional inspection services industrial buildings B & M Occupancies $100.00 All Other Occupancies $225.00 ® B &M Occupancies requiring services in excess of 75 minutes—additional $100.00/hr. All Other Occupancies requiring services in excess of 250 minutes- additional- $100.00/hr ® Temporary Certificate(Actual fully burdened costs) B &M Occupancies All Other Occupancies $100.00min $225.00min BUILDING DEPT. "SPECIAL.. SERVICES" Fee age How Determined Rate During Normal Work Hours: Counter Services Hourly(See Conditions,below) $75.00 Inspection Services Hourly See Conditions,below) $85.00 Plan Review Services Hourly See Conditions,below) $125.00 Supervisor Services Hourly(See Conditions,below) $135.00 Outside Normal Work Hours: Counter Services Hourly See Conditions,below) $110.00 Inspection Services Hourly See Conditions,below) $125,00 Plan Review Services Hourly See Conditions,below) $190.00 Supervisory Services Hourly(See Conditions,below) $200.00 a. The payment of such fees shall be in addition to other required fees. b. Where the special service is provided during normal work hours,the fee shall be based on the actual time expended,but not less than one-half(1/2)hour. c. Where the special service is provided as overtime between the hours of 6:00 AM and 8:00 PM on a normal work day,the fee shall be based on the actual time expended but not less than one (1)hour at the outside normal work hour rate. d. Where the special service is provided outside the hours of 6:00 AM to 8:00 PM on a normal work day or during any hours on a typical City day off,as provided in the City's current MOU, the fee shall be based on the actual time expended but not less than four(4)hours at the outside normal work hour rate. A 4.0%Automation Fee will be added to all fees listed pursuant to Resolution 2009-32 GA1BuildingAdmin/Web/Fee Schedule 08/17/09.doc Effective 09/17/09 -3- Exhibit"A" - Ordinance No. 3955 °ed BUILDING PERMIT PEES COLLECTED FOR OTHER DEPARTMENTS & AGENCIES AGENCY/Fee T e How Determined Rate HB PLANNING DEPT. 714 536-5271 Planning Plan Review Collected at time of building plan review submittal& assessed ag%of building inspection fee 70% Exception: • Standard production units after the model unit has been reviewed @%of building inspection fee 24% (changes to be reviewed an an hourly,basis STATE OF CALIFORNIA State Tax(SMIP) Up to $5,000 valuation—Fee amount is fixed $0.50 _Residential Over $5,000 valuation—Fee amount is Valuation x Rate $0.0001 Calif. State Tax(SMIP) Up to$2,381 Valuation—Fee amount is fixed $0.50 Commercial/Industrial Over $2,381 Valuation—Fee amount is Valuation x Rate $0.00021 HUNTINGTON BEACH LIBRARY Library Enrichment- Applied to all new development&additions which Residential increase existing sq. ft.by over 50%(including garage area)—Rate per sq.ft. Payment is due at time of permit $0.15 issuance _ Library Enrichment- Applied to all new development and additions—Rate per $0.15 Commercial/Industrial sq. ft. Payment is due at time ofpermit issuance. Library Development- Applied to all new development&additions which Residential increase existing sq. ft.by over 50% (including garage $0.44 area)—Rate per sq. ft. Payment is due prior to,final inspection but may be paid at time a_fpermit issuance. _ Library Development- Applied to all new development and additions—Rate per Commercial/Industrial sq.ft. Payment is due at time of permit issuance. $0.04 Exceptions: • Warehouse on commerciallindustrial Facilities • Government or public facilities • Churches, temples synagogues, and other buildings or structures used for religious worship • Private schools which meet California Education Code Section 48222 requirements HB SCHOOL DISTRICT 714 536-7521 School District- Applied to new residential development and additions of Residential 500 sq. ft.or more (excluding garage area)—Rate per sq. $2.97 School District- Applied to all new development and additions—Rate per $0.47 Commercial/industrial I sq.ft. Payment is due at time ofpermit issuance. A 4.0%Automation Fee will be added to all fees listed pursuant to Resolution 2009-32 GABuildingAdmin/Web/Fee Schedule 08/17/09.doe Effective 08/17/09 -4- Exhibit"A" - Ordinance No. 3955 �- ELECTRICAL PERMIT FEES (714) 536-5241 `Fee T . ,e Haw I�.etermined Rate. Permit Processing Charge Flat Fee $30.00 Inspection Fee(Min) Minimum fee charged(Sq.Ft Calculation or Item $28.00 Calculation)in addition to the Processing Charge Inspection Fee(Sq.Ft.) Per Square Foot in lieu of listed items. (New single and $.12 multiple-family residential buildings including additions OR and attached garages) Minimum $30.45 Inspection Fee(Items) Each service meter. Per AMP Charge. $.62 Minimum$30.45) Each sub-panel $30.00 Each self-contained,factory-wired,approved unit such as $16.00 cooking appliances,home appliances,heating appliances, HVAC units, vegetable cases,drinking fountains,etc. (2-HP Max) Over 2-HP, see generators,motors and transformers) Lighting Fixtures(each): • 1 -50 $2.50 • Each additional fixture $1.25 • Each pole with fixtures $16.00 Generators,Motors and Transformers: • H.P.,kW,or KVA Rating of equipment up to and including two (2) $16.00 • Over two (2)and not over ten(10) $30.00 • Over ten(10)and not over fifty(50) $65.00 • Over fifty(50) $155.00 Receptacle and Switch Outlets: • First fifty(50), each $2.50 • Each additional outlet $1.25 Each section of track lighting or multiple outlet assembly $8.00 Fuse U $40.00 Temporary Service: • Each temporary construction pole(including lights $65.00 and outlets for outdoor lot use) • Each sub-pole with panel $30.00 Signs at each address: • 15t Sign at one address $155.00 • Each additional sign at same address $65.00 Each misc. item regulated by the Huntington Beach $30.00 Electrical Code where no fee is listed Photovoltaic—solar $0.00 Photovoltaic—with battery backup and emergency $0.00 circuit panel Electrical Plan Review Collected at time of plan review submittal and assessed 75% of Inspection Fees ($53.00 minimum) Reviews in excess of 3 submittals $106/hr A 4.0%Automation Fee will be added to all fees listed pursuant to Resolution 2009-32 G:113uildin&Admin/Web/Fee Schedule 08l17/09.doe Effective 08AT09 -5- Exhibit"A" - Ordinance No. 3955 0 MECHANICAL PERMIT FEES (71.4) 536-5241 Fee T e >H[a�v Deter>naiued Rate Permit Processing Flat Fee $30.00 Charge Inspection Fee(Min) Minimum fee charged in addition to the Processing Charge $28.00 Inspection Fee(Items) Installation or relocation of each furnace, including ducts $60.00 and/or vents attached to such appliance(includes incidental electrical). Each Fire and/or Smoke Damper $26.00 Relocation or replacement of each appliance vent not included $26.00 in an appliance item also permitted • HVAC Duct Extension/Relocation for 1-10 ducts $38.00 • Each additional duct $5.00 Installation or relocation of each boiler to and including 15 hp $65.00 or compressor to and including 5 tons, including attached ducts and/or vents Installation or relocation of each boiler over 15 hp or $155.00 compressor over 5 tons, including attached ducts and/or vents Each evaporative cooler(non-portable e) $31.00 Exhaust fan connected to a single environmental air duct. $16.00 Includes residential cooking hoods). Each Air-Handling unit not part of a factory-assembled $31.00 appliance Each ventilation system less than or equal to I0,000cfm which $31.00 is not a portion of any heating or air conditioning system authorized by a permit Each ventilation system more than 10,000cfm which is not a $65.00 portion of any heating or air conditioning system authorized by a permit Hood served by mechanical exhaust including ductifan $65.00 Miscellaneous items including all factory-built stoves, ovens, $31.00 cook tops,etc. Factory Built Fireplaces $31.00 Each low ressure Gas-Pi in system up to .5 psi $25.00 Each medium or high pressure Gas Piping system,exceeding $85.00 .5 psi Each misc. item regulated by the Huntington Beach $31.00 Mechanical Code where no fee is listed Mechanical Plan Review Collected at time of plan review submittal and assessed @% 81% Fee of Inspection Fees ($53.00 Minimum A 4.0%Automation Fee will be added to all fees listed pursuant to Resolution 2009-32 G1Bui1dingAdin1&Web/Fee Schedule 08/17/09.doc Effective 08/17/09 -6- Exhibit"A" - Ordinance No.3955 PLUMBING PERMIT FEES (714)536-5241 _._ _.... ._ Permit Processing Charge Flat Fee $31.00 Inspection Fee(Min) Minimum fee charged in addition to the Processing Charge $28.00 Inspection Fee Each Plumbing Fixture $28.00 Each Building Sewer $55.00 Rainwater Systems—per drain $14.00 Each Water Heater and/or Vent $28.00 Each Low Pressure Gas-Piping System, up to .5 psi $25.00 Each Medium or High Pressure Gas Piping System,exceeding $85.00 .5 psi Each Waste Interceptor or each Kitchen Grease Trap $55.00 Installation or alteration of water piping, including vacuum $55.00 breakers or backflow devices Water Treating Equipment $28.00 Sump Pumps sewa e or rainwater $28.00 Medical Gas Systems I to 5 outlets $185.00 ® Each additional outlet $18.00 Each mist. item regulated by the Huntington Beach $28.00 Plumbing Code where no fee is listed Plumbing Plan Review Collected at time of plan review submittal& assessed @% 76% of inspection fees ($53.00 Minimum In excess of 3) submittals $106/hr SWIMMING POOL PERMIT FEES Fee a _ How g3eterni<net3 , Rage,.... Permit Processing Charge Flat Fee $30.00 Inspection Fee(Min) Minimum fee charged in addition to Processing Charge $28.00 Pre-Inspection Fee Collected at time of building plan review submittal $85.00 Inspection Fee(Building) Based upon Project Valuation Table construction costs per LON s .ft.to determine project valuation. Table Inspection Fee(Electric) Electrical Items $85.00 Above Ground Spas,refer to Electrical Permit Items See Electrical Inspection Fee (Plumb) Plumbing Items $80.00 Above Ground Spas,refer to Plumbing Permit Items See Plumbing Building Plan Review Collected at time of building plan review submittal& assessed g%of building inspection fee($110.68 Minimum) 79% Planning Plan Review: Collected at time of building plan review submittal& assessed g%of building inspection fee 20% A 4.0%Automation Fee will be added to all fees listed pursuant to Resolution 2009-32 GA13ui1dingAdwin/Web/Fee 3cbedule 08/17/09.doc Effective 08/17/09 7- Exhibit"A" - Ordinance No. 3955 SOLAR ENERGY PERMT FEES (714)536-5241 e e . �a IDeter>m;iined _Bate Permit Processing Charge Flat Fee $0.00 Inspection Fee(Min) Minimum fee char ed in addition to the Processing Charge $0.00 Inspection Fee(Items) Each appliance or piece of equipment regulated by the $0.00-See Huntington Beach Solar Energy Code Special Services Solar Plan Review Fee Collected at time of plan review submittal and assessed @% 0%See of Inspection Fees Special Services A 4.0%Automation Fee will be added to all fees listed pursuant to Resolution 2009-32 GABuildingAdmin/Web/Fee Schedule 08/17/09.doc Effective 08/17/09 -8- Exhibit"A" - Ordinance No. 3955 CITY OF HUNTINGTON BEACH Public Works Fee Schedule User Fees Effective 6f16/49,resolution #2009 3i Development Related effective 8/16/09;resolution#2009-32 jCee FeeDescr hon DEVF -,QP �, Fr A r r Bond reduction(partially completed $1,150+FBR(Fully Developer request to reduce bond projectS) Burdened Rate) amounts due to progress made in improvements. Cash bond processing $240 Public Works Fee Inspection and preparation of list& plus$75 Treasury Fee calculate deposit amount for early occupancy. 150%of cost of incomplete improvements+processing fee Construction Water $110 Non-metered water used during construction/per unit Drainage Fees-Ordinance 4 3741 dated 09- $13,880 per acre Enhancing drainage system capability. 06 Dock Construction Plan Review/Inspection $540 Review,plan check,issue permit& inspect docks Encroachment Permit $115 flat fee+public Review plans,coordinate permit improvement inspection approval. Check City&State license& fee of 8%construction current insurance. Separate fee 8%cost costs of improvements. Loose materials stored on public right-of-way is obstruction permit. Encroachment Permit(Utility Company) $275 Plan check utility plans and review other plans for compatibility. Encroachment Permit Expired $80 Review construction progress,check with the inspector;extend or reissue encroachment permit. Encroachment Permit Violation $195 Charge for working in R/O/W without permit Excessive Plan Check>3 reviews(per FBR Nan-compliance with staff direction or sheet) special requests that require excessive staff time. Final Parcel Map Check $2,500 Deposit+FBR Review final parcel map to determine compliance with code requirements- Final Tract Map Check $2,200 Deposit+FBR Review final tract map to determine compliance with code requirements. Fire Hydrant Flow Analysis(1 st run) $750 Run hydrant flow test on hydraulic model Fire Hydrant Flow Analysis(each $140 additional run) 1 of 6 Exhibit"A" - Ordinance No. 3955 CITY OF HUNTINGTON BEACH Public Works Fee Schedule - User It ees Effective 6/161U9,rest+7on�1A(1�-3T Development Related effective 8116/09;resolution#2009-32 Gradwgl'lan Check&,Inspectron Review of proposed grading plans and (0-300 cubic yards) $4,000 Deposit+FBR inspection to ensure compliance with (301-5,000 cubic yards) $5,000 Deposit+FBR appropriate codes,standards,and (5,001-10,000 cubic yards) $8,000 Deposit+FBR approved conditions. (10,001-200,000 cubic yards) $10,000 Deposit+FBR (Over 200,000 cubic yards) $10,000+$800 each additional 10,000 cubic yards Deposit+FBR For all:(Hrdscape Plan Check) $1,000 Deposit+FBR Plan check of hardscape improvements in addition to fee for grading plan cheek/inspection). For all:(Hrdscape Inspection) $2,000 Deposit+FBR Inspection of hardscape improvements (in addition to fee for grading plan check/inspection). andscapePlan Check Review landscape and plan to assure Single Family Dwelling S495 compliance with appropriate code Tract Map $1,000 requirements. Commercial/IndustriaVMulti-Family $380 per sheet I aadscape Inspeetion, Inspection of new landscaping to ensure 0<or=1,000 sq ft of landscape $235 compliance to plans. each additional 1,000 sq ft of landscape S60 Residential Street Tree Only $60 Inspection per address. Lot Line Adjustment(PW) $550 Deposit+FBR Adjustment of lot lines on maps(a second fee is collected by Planning if their review is required) Obstruction Permit $155 For building materials right-of-way. Orange County Sanitation District Attached OCSD Connection fee Public Improvement Inspection 8%of Improvement costs Inspection of public improvement. Public Improvement Inspection(after $465(4 hrs) or $880(8 Inspection of public improvement after hours) hrs).Holiday$565 (4 hours(minimum 4 hours) hrs)or$1,125(8 hrs) Public Improvement Inspection(utilities) $110 per hour Inspection of right-of-way utility work Pnbhc Tmprovemenl P1an:Check Reviewing plans for infrastructure Single Family Dwelling-1-2 sheets $4,000 Deposit+FBR improvements that will become the City's All Others<3 Sheets $7,000 Deposit+FBR responsibility upon completion of the Public Works Reinspection $110 Reinspection when necessary(customer not prepared or installation incorrect) Recordation Fee $120 per sheet Adding As-Builts to record plans and GIS. Aries 1lliporPlari:Check,,. Reviewing plans for minor and/or No Field Review $300 miscellaneous improvements. With Field Review S430 2 of 6 Exhibit"A" - Ordinance No.3955 CITY OF HUNTINGTON BEACH Public Works Fee Schedule C1ser Fees Effective GI16l89,resolution #2009 31 . Development Related effective 8/16109;resolution 4 2009-32 Sewer Connection Fee(City) Attached Street Vacation(full) $3,900 Deposit+FBR Prepare documents for abandoning all or Street Vacation(summary) $900 Deposit+FBR a portion of a public right-of way. Street Lighting Plan Check $1,950 per sheet Survey Fee $23 per survey point Surveying and adding to GIS. Traffic Impact Fee $172 per trip end Traffic mitigation Traffic Signal Plan Check $3,945 per sheet Check plans for new installation Traffic Signs&Striping Plan Check $1,935 per sheet Check plans for new or revised signs/striping Traffic Control Plan Check $1,805 per sheet Project traffic control plans Water Capital Facilities Charge Attached Wxdef 0vetireightloadrng Review the overload permit and check Three day permit f $16/single trip that the truck and load complies with the Temporary Permit $16/single trip City's overload requirements. Also check Annual Permit $90 requested route,date,and time.(Fee is Field verification(if required) $87 set by the State) 11%IISC�I;I�Al+1C�0US I:ISE1i.FFEB: AMP*Drvisiois.. .. . Damage to City Facilittes FBR+materials with 2 Property damage hour minimum ENGIIME!ING Plans and Specifications $10 plus cost of Project or department plans and specs reproduction. Standard Plans $15 per book City standard plans for construction and water items. Research Requests Fully Burdened Rate Review of soils reports,geotechnical (FBR) reports,traffic impact,shared parking analysis,or water quality management plans.Time to pull and replace plans and records for customer research. Record Drawing Reproduction:Compact $23/drawing+$3/each Cost for research data collection and CD Disc(CD), additional drawing. creation. Record Drawing Reproduction:Paper $25/drawing+$8leach Cost for research data collection and Copy. additional drawing on printing. large format sheet. Residential Parking Permit Fee $23 for first/+$6 for 24 Issuing annual renewal permits for (max 4)includes 2 free resident requested parking areas guest permits Residential Parking Permit Replacement $14 Replacement of lost parking permit. Residential Temporary Parking Permit $1 per sign Issuance of temporary permit for a special event Storage Bin Permit $185 for five days$15.00 Review plans&coordinate permit each day thereafter approval with traffic& inspection.Large storage bins in right-of-way 3 of 6 Exhibit"A" - Ordinance No. 3955 CITY OF HUNTINGTON BEACH Public Works Fee Schedule User Fees Effective 6/16 iE19r resolution #2009 31 Development Related effective 8/16/09;resolution#2009-32 MAIN- --MANGE Block wall Maintenance FBR+materials with 2 hrs Repairing block walls damaged in accidents Emergency Street Cleaning FBR+materials with 2 hrs Emergency street cleaning within public right-of-way. Hazardous Material Clean-Up FBR+materials with 2 hrs Emergency response to spilled loads of hazardous materials. Illegal Refuse Bin Impound $400 flat fee Impound&storage of bins violating our franchise agreement after 24-hour notice has been given. Illegal Storage Bin S200 Recycling Bin Permits $50/6 months Charge for having recycling bins within City limits.Includes reporting requirements Spilled Load Clean-Up-Non-Hazardous Hourly min 2 hrs plus Emergency response to spilled loads of costs non-hazardous materials(2 hour min). Tree/Shrub Overhang Abatement FBR with 2 hr minimum Weed Abatement $225+costs Provide weed abatement to vacant properties. 1'Al2�S T'�ES:B LANDSCAPE Banner Hanging Service-PTL $265/banner Hanging banners on Main Street. Street Tree—Non-Permitted Removal $525+$50/caliber inch trucnk @ 48". Street Tree Request(24"Box) S190 plus cost of tree Upgrade to 24"box $RAlsI5P(J�2.TAT'ION Pennants(each) $311 pennant Installation and removal of pennant banners on street lights Temporary No parking permit $140.00 per permit plus Allows/prohibits temporary parking (Construction) $.75 per sign 3 ATER Delinquent Shut-off $115 Turn off and turn on of service upon payment. Delinquent Bill Tag $38 Delinquent water accounts the City is required to physically tag Same Day Turn-On Service(After Hours) $230 Turn on of water senice on the same day if the request is made after 4pm. Same Day Turn-On Service(Regular $60 Turn on water the same day of request if Hours) during business hours_ Temp Meter Rental $115 Set or relocation of meter on hydrants Construction Water Meter Deposit $829 Water Capital Facilities Charge See Attached 4 of 6 Exhibit"A" - Ordinance No. 3955 CITY OF HUNTINGTON BEACH Public Works Fee Schedule IJsex'Fees Effective 6/16/t9,resolttt�on #,2d09 31 Development Related effective 8/16/09;resolution#2009-32 1�'ATER QftALITI'., . Stormwater Permit Inspection $135 Required inspection for compliance with BMPs and NPDES permit $350 Charged upon completion of inspection. To inspect and maintain records of Industrial high(annual inspection) facilities per NPDES permit Order No. R8-2009-0030. Industrial Medium/Low $250 Commercial $250 Single Family Dwelling Unit 0,202 Multiple Family Dwelling Unit $1,801 Noro-Resident�al ." d:or water_inetditLze:relativnsbj t©E uiiratew�t7)we11i Urtrt-€DU Meter,'.Size&T e EI3U s. Char"e 3/4" 1 $2,503 1" 2 $5,006 1 W 3 $7,509 2" 5 $12,517 3" 11 $27,537 4"Compound 17 $42,556 4"Domestic&Turbine 33 $82,610 6"Compound 33 $82,610 6"Domestic&Turbine 67 $167,721 8"Domestic 1 117 $292,885 10"Domestic 183 $455,483 Ifl1P►?ER �[TL �►CILtITES CIr1RGfE . Effectt�re Residential Develo ment Meter size&type EDUs Charge 314" 1 $2,700 1" 2 $5,398 1 112" 3 $8,099 2" 5 $13,497 3" 11 $29,693 4"Compound 17 $45,888 4"Domestic&Fire Service 33 $89,077 6"Compound 33 $89,077 6"FM 67 $180,853 8" FM 117 $315,818 10" FM 183 $493,972 Non-residential Development Parcels less than 10,000 sq ft $60 per usable unit Parcels 10,000 sq ft or greater $300 per acre or traction thereof or $60 per usable unit whichever is greater 5 of 6 Exhibit"A" - Ordinance No. 3955 CITY OF HUNTINGTON BEACH Public Works Fee Schedule User FeesEffeciaoE 6/1fi109,res©liitiou #2fl09-31 _ Development Related effective 8/16/09;resolution#2009-32 Orange County Sanitation District(OCSD) Capital Facilities Capacity Charge(CFCC) FY 2011 -2012 Use Category Rate Basis Base Charge Commercial—Industrial Per 1,000 square feet' Low DemandZ Per 1,000 square feet $279.00'(min$3,341) Average Demand4 Per 1,000 square feet $1,734.00'(min$3,341) High Demand Per 1,000 square feet $4,118.00'(min$3,341 Single Family Residential(SFR)$ Per Each 5} bedrooms $4,643 4 Bedrooms $3,976 3 Bedrooms $3,341 2 Bedrooms $2,705 1 Bedrooms $2,069 Multi—Family residential(MFR)6 Per Unit +Bedrooms Per Unit $3,61 3 Bedrooms Per Unit $2,973 2 Bedrooms Per Unit $2,337 1 Bedrooms Per Unit $1,670 Studio Per Unit $1,073 Bedroom Additions 2nd through P room additions Per each $63 4s bedroom addition Per each $635 5th bedroom addition Per each $667 bedroom addition No additional charge No additional charge 'Provided that the minimum Capital Facilities Capacity Charge for such new construction shall be$3,341.00 2 Low Demand connections are the following categories of Users: Nurseries,Warehouses;Churches;Truck Terminals;RV Parks;RV Storage Yards,Lumber/Construction Yards,Public Storage Buildings;and other facilities with restrooms,offices, lobbies and/or areas whose flow is similar in volume to these listed categories.Parking structures not connected to the sewer will not be charged. 3 Himh Demand connections are the following categories of Users:Restaurants(including patios used for additional seating capacity),Supermarkets;Car Washes;Coin Laundries,Amusement Parks;Shopping Centers with one or more Restaurants, or Food Court Food Processing Facilities,Textile Manufacturers;and other dischargers whose flow is similar in volume to these listed categories. 4AII other connections are Average demand users including:Hotels,Strip Malls without restaurants,Music Halls without food facilities,Office Buildings,senior Housing with individual living units without kitchens but with common kitchen and wash pads. 5 Bedroom additions are considered a change of use and a CFCC must be paid.Bedrooms include:enclosed loft additions,bonus rooms that may be used as offices,workout rooms,media rooms,or libraries,or any other additions which could be potentially used as a bedroom.The classification of these additions will be reviewed and determined by County and City staff.Any detached building such as an addition over an existing garage or a new building with the same designation as mentioned above will be considered a separate living residence(SFR). 6MFR units consist of multiple units that receive one secured property tax bill such as apartments.Senior housing with individual living units that include a kitchen are considered MFR units. 7Studio-one single room with no separating doors or opening leading to another part of the room(except for a bathroom). OCSD Rates effective 7/1/11 OCSD Fees 1DD.2211D Rev.3115/12 JDM 6of6 E�:hi bi t "A" - Ordinance No. 3955 This Document was electronically recorded by City of Huntington Beach Recorded in Official Records, Orange County Tom Daly, Clerk-Recorder EXHIBIT"C„ TO DEVEL®PJA Jiligmi NtI1111111111111111111NO FEE 7305 11:01 am 08/28/12 65 404 Al2 10 0.00 0.00 0.00 0.00 27.00 0.00 0.00 0.00 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attn: City Clerk (Space above for Recorder's use) This document is exempt from recording fees pursuant to Government Cade Section 27383. AFFORDABLE HOUSING AGREEMENT RESTRICTIONS-RENTAL (DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS FOR PROPERTY) This Affordable Housing Agreement Restrictions-Rental (Declaration of Conditions; Covenants and Restrictions for Property) (the "Declaration") is made as of -&6u.5;' AO ,201A , by and between DCO BEACH WALK LLC, a Delaware limited liability company (the "Developer" or the "Coveriantor"), and the CITY OF HUNTINGTON BEACH, a California municipal corporation(the"City"). RECITALS A. Developer is the owner of record of that certain real property located at 19891 and 19895 Beach Boulevard (the "Property"), in the City of Huntington Beach, County of Orange, State of California legally described in the attached"Exhibit A." B. The Developer seeks to develop an apartment project on the Property consisting of 173 dwelling units as more particularly set forth in the Site Plan Review No. 11-005 (Beach Walk Apartments) (the "Project"), all in accordance with the Beach and Edinger Corridors Specific Plan, as may be amended from time to time (the "Specific Plan") adopted by the City Council of the City(the"City Council")on March 1,2010. C. The City imposed conditions of approval on the Project, in part that Developer provide affordable housing. As part of the plan to provide affordable housing, the City and Developer entered into that Development Agreement concurrently herewith, which Development Agreement requires as a condition that an Affordable Housing Agreement be executed requiring Developer to provide affordable rental units for a certain period of time. Specifically, the Development Agreement requires Developer provide seventeen (17) units within the Project available for rent to Moderate Income Households for a period of fifty-five (55) years as further defined herein. The execution and recordation of this Declaration is intended to fully satisfy that condition. 2272/026565-0004 3060319.9 a06/25/12 4- Exhibit"A" - Ordinance No.3955 NOW,THEREFORE,the parties hereto agree and covenant as follows: 1. Affordability Covenants. Covenantor agrees for itself and its successors and assigns, and every successor to Covenantor's interest in the Affordable Units,or any part thereof, that the Project approved by Site Plan Review No. 11-005 (Beach Walk Apartments), which consists of 173 units, 17 of which shall be designated as affordable and shall be held subject to this Declaration for fifty-five(55) years, as follows: (a) Qualified Households. Covenantor agrees to make available, restrict occupancy to, and to lease 17 units for the duration of the Affordability Period as defined herein. These 17 units may sometimes be referred to as an "Affordable Unit" or, collectively, the "Affordable Units." Each Affordable Unit shall be occupied by a Moderate Income Household. A "Moderate Income Household" means a Household whose gross income does not exceed the amount published annually by the California Department of Housing and Community Development in accordance with California Health and Safety Code Section 50093. As used in this Declaration, the term "Household" shall mean one or more persons, whether or not related, living together in an Affordable Unit that rent or lease any portion of the Affordable Unit. As used in this Declaration, the term "Area Median Income" shall mean the area median income for the County of Orange ("County") as published annually by the California Department of Housing and Community Development and determined in accordance with the U.S. Department of Housing and Urban Development criteria then in effect and published from time to time. For purposes of this Declaration, the qualifying limits shall be those moderate income limits for the County, as defined by California Health and Safety Code Section 50093 and set forth in Title 25, California Code of Regulations, section 6932, as that section may be amended, modified or recodified from time to time. If the California Code of Regulations is amended or modified during the term of this Declaration so that such regulations do not specify the area median income for the County, the City and Developer shall negotiate in good faith to determine an equivalent authoritative source which determines median income for the County As used in this Declaration, the term "Covenantor" shall mean Developer, its successors and assigns, and every successor to Developer's interest in the Project, or any part thereof. All other capitalized terms not otherwise defined herein shall have the meanings commonly recognized in the affordable housing industry. (b) Duration. The term of this Declaration shall commence on the date that the final inspection for the eight(8t') Affordable Unit is approved by the City and will terminate on the date that is fifty-five(55) years thereafter("Affordability Period"). (c) Income QuaHfication. On or before the date that is forty-five (45) calendar days after the California Department of Housing and Community Development publishes its annual income limits, Covenantor shall submit to the City a completed income computation and certification form, in such form as is generally used by City in administering its affordable housing program as may be amended from time to time. Covenantor shall certify that, to the best of its knowledge, each Household is a Moderate Income Household. Covenantor shall obtain an income certification from each adult member of the Household and shall certify that, to the best of Covenantor's knowledge, the income of the Household is truthfully set forth 2272/026565-0004 _ 3060119.9 062512 -2 Exhibit"A" - Ordinance No. 3955 in the income certification form. Furthermore the Covenantor shall, on renewal of the annual lease for the particular Affordable Unit, again obtain income certification from each adult member of the Household and, with Covenantor's annual recertification package, submit to the City a recertification form that shall certify, to the best of Covenantor's knowledge, each Household is a Moderate Income Household. Covenantor shall verify the income certification of the Household in one or more of the following methods as specifically requested by City. (1) Obtain two (2) paycheck stubs from two (2) most recent pay periods for each adult member of the Household. (2) Obtain a copy of an income tax return certified to be true and complete for the most recent tax year in which a return was filed, for each adult member of the Household. (3) Obtain an income verification certification from the employer of each adult member of the Household. (4) Obtain an income verification certification from the Social Security Administration and/or the California Department of Social Services if the Household receives assistance from such agencies. (5) Obtain an alternate form of income verification reasonably requested by City, if none of the above forms of verification is available to Covenanter. If, at the time of the annual recertification of an eligible Household, the Household's income has increased above the income level permitted for a Moderate Income Household, the Household shall continue to be permitted to reside in such unit (subject to an increase in rent as allowed by applicable law), but the unit will no longer qualify as an Affordable Unit and Covenantor shall designate the next available unit of the same number of bedrooms as an Affordable Unit. 2. Determination of Affordable Rent for the Affordable Units. The rent for each Affordable Unit(the"Affordable Rent") shall be adjusted annually by the formula established by California Health and Safety Code Section 50053 upon the publication of revised Area Median Income (as defined in Section 1(a) above). This methodology sets the Moderate Income Rent at 1/12t' of 30% of 110% of the Area Median Income adjusted for family size appropriate to the Affordable Unit. As used herein, "adjusted for family size appropriate to the Affordable Unit" shall mean a household of 1 person in the case of a studio Affordable Unit, a household of 2 persons in the case of a one-bedroom Affordable Unit, and a household of 3.persons in the case of a two-bedroom Affordable Unit. 3. Rental rates for the Affordable Rental Units must be set at levels affordable to Moderate Income Households as set forth herein. Each year, after the income standards are published by the California Department of Housing and Community Development, the Affordable Housing Administrator will calculate the allowable rental rates;-- This rent schedule - - - -will then be transmitted to the Covenantor. 2272/026565-0004 3060319.9 aW25M -3- Exhibit"A" - Ordinance No.3955 COVENANTOR UNDERSTANDS AND KNOWINGLY AGREES THAT THE MAXEYIUM RENTAL PAYMENTS TO BE ESTABLISHED BY THIS FORMULA ARE NOT NECESSARILY EQUAL TO THE FAIR MARKET RENT FOR THE AFFORDABLE UNITS, AND MAY BE ESTABLISHED AT A LEVEL SUBSTANTIALLY BELOW THE- FAIR MARKET RENT LEVELS. COVENANTOR BEREBY AGREES TO RESTRICT THE AFFORDABLE UNITS ACCORDINGLY. 4C ENANTOR'S INITIALS In the event state lava referenced herein is amended, the terms of this Declaration shall automatically be amended to remain consistent with State law. (a) Annual Report. Within sixty (60) calendar days after the end of each calendar year during the Affordability Period, Covenantor shall submit to City a report verifying Covenantor's compliance with the provisions of this Declaration ("Annual Report"). Covenantor's final Annual Report shall be submitted to City within sixty(60) calendar days after the end of the Affordability Period, Each Annual Report shall identify the location of the Affordable Units for the applicable reporting period, the identity of each Household member occupying an Affordable Unit during any portion of such period,the income and family size of each such Household, the Affordable Rent for each of the Affordable Units,and the rent actually charged pursuant to the lease or rental agreement. If City prescribes a particular form to be utilized by Covenantor in preparing the Annual Report, Covenantor shall utilize said form, provided that it complies substantially with the foregoing requirements. 4. Non-Discrimination Covemints. Covenantor covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of any person or group of persons on account of race,color, religion, sex, sexual orientation, creed, ancestry, national or ethnic origin, age, family or marital status,handicap or disability,in the use,occupancy,tenure,or enjoyment of the Affordable Unit, nor shall Covenantor itself or any person claiming under or throw it, establish or permit any such practice 'or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, subtenants, or vendees in the Affordable Unit. Covenantor and its successors and assigns shall refrain from restricting the leasing of the Affordable Unit on the basis of race, color, religion, sex, sexual orientation, creed, ancestry, national or ethnic origin, age, family or marital status,handicap or disability, of any person. All such leases shall contain or be subject to substantially the following nondiscrimination or nonsegregation clause: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns,and all persons claiming under or through him or her, and this lease is.made and accepted upon and subject to the following conditions: - 227'21026565-0004 -q 3060319.9 a06125(72 Exhibit"A" - Ordinance No. 3955 "That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, religion, sex, sexual orientation, creed, ancestry, national or ethnic origin, age, family or marital status, handicap or disability in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased." 5. Use Restrictions. During the Affordability Period, Covenantor shall be required to take all reasonable steps necessary to ensure that each Household renting an Affordable Unit has knowledge of all terms and conditions of this Declaration by including in each and every lease and rental agreement a clause which incorporates this Declaration by reference and makes this Declaration a part of an attachment to such lease or rental agreement. In addition, during the Affordability Period, each lease or rental agreement for any of the Affordable Units shall contain provisions that the Affordable Unit shall be occupied, used, and maintained as follows: (a) The Affordable Unit shall be used only for private dwelling purposes,with appurtenant facilities, and for no other purposes; (b) Household Size. The number of persons that may occupy an Affordable Unit shall be based on unit size: Unit Size Household Size 0 bedroom(studio) 2 persons 1 bedroom 3 persons 2 bedrooms 5 persons (c) The Household shall not permit or suffer anything to be done or kept upon the premises which will increase the rate of insurance on any building, or on the contents thereof, and shall not impair the structural integrity thereof obstruct or interfere with the rights of other occupants, or annoy such occupants by reasonable noises or otherwise, nor shall any Household commit or permit any nuisance on the premises or fail to keep the premises free of rubbish, clippings, and trash or commit or suffer any illegal act to be committed thereon; (d) The Household shall not sublease any or all part of the Affordable Unit without prior approval from City; (e) The Household shall comply with all of the lawful requirements of all governmental authorities with respect to the premises; (t) No person shall be permitted to occupy the premises for transient or hotel purposes; and 2272/026565-0004 3060319.9 a06/25112 -5- Exhibit"A" - Ordinance No. 3955 (g) The Household shall comply in all respects with this Declaration and any failure by the Household to comply with the terms of this Declaration shall be a default under the Household's lease or rental agreement. 6. Covenants for Benefit of City. All covenants without regard to technical classification or designation shall be binding for the benefit of the City and such covenants shall run in favor of City for the Affordability Period. The City, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any such action at law or suits in equity or other proper legal proceedings to enforce and to cure such breach to which it or any other beneficiaries of these covenants may be entitled during the Affordability Period. 7. Binding on Successors and AssLo-ns. The covenants and agreements established in this Declaration shall, without regard to technical classification and designation, be binding on Covenantor and any successor to Covenantor's right, title, and interest in and to all or any portion of the Project, for the benefit of and in favor of the City. All the covenants contained in this Declaration shall remain in effect for the Affordability Period, and shall automatically terminate and be of no further force or effect after such time. Upon expiration of the Affordability Period, City agrees to cooperate with Covenantor, at no cost to City in removing this Declaration of record from the Property. 8. Counterparts. This Declaration may be executed in a number of counterparts, each of which shall be an original,but all of which shall constitute one and the same document. 9. Applicable Law. (a) If any provision of this Declaration or portion thereof, or the application of any provision to any person or circumstances, shall to any extent be held invalid, inoperative, or unenforceable, the remainder of this Declaration, or the application of such provision or portion thereof to any other persons or circumstances, shall not be affected thereby and it shall not be deeded that any such invalid provision affects the consideration for this Declaration; and each provision of this Declaration shall be valid and enforceable to the fullest extent permitted by law. (b) This Declaration shall be construed in accordance with all applicable federal, state and local laws. [Signatures and Jurats to)FoHowl, 2272/026565-0004 3060319.9 a06/25/12 -6- Exhibit"A" - Ordinance No. 3955 IN 'WITNESS WHEREOF, Covenantor and City have caused this instrument to be executed on their behalf by their respective officers hereunto duly authorized as of the date set forth above. "COVENANTOR" DCO Beach Walls LLC, a Delaware limited liability company By: DCO Beach LLC, a Delaware limited liability company Its: Managing Member By: DCO Realty,Inc.,a Delaware corporation Its: Sol ember By: Name: /4�Ate-Ga6-1,-- Title: "CITY" CITY OF HUNTINGTON BEACH,a municipal corporation of the tat�f California Mayor ATTEST: APPROVED AS TO FORM: City Jerk City Attaaey ") P r ?,, MTIA AN PROVED: REVIE$/p APPROVED: Plannin nd-BuXdi irector City Manager 2272/026565-0004 3064319.9 a06I25112 -7- Exhibit"A" - Ordinance No. 3955 EXHIBIT "A" TO AFFORDABLE HOUSING AGREEMENT LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA,AND IS DESCRIBED AS FOLLOWS: PARCEL A: BLOCK 1908 OF THE EAST SIDE VILLA TRACT,IN THE CITY OF HUNTINGTON BEACH,AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 65 OF MISCELLANEOUS MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL B: THE NORTH HALF OF BLOCK 1808, EAST SIDE VILLA TRACT,IN THE CITY OF HUNTINGTON BEACH, AS SHOWN ON A MAP RECORDED IN BOOK 4,PAGE 65 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT ALL MINERALS, OIL, GAS,AND OTHER HYDROCARBON SUBSTANCES IN OR UNDER SAID LAND, BUT WITHOUT THE RIGHT OF ENTRY ON THE SURFACE OF SAID LAND FOR THE PURPOSE OF EXPLOITING FOR,DEVELOPING,PRODUCING, REMOVING AND MARKETING SAID SUBSTANCES,AS RESERVED IN AN INSTRUMENT RECORDED MAY 25, 1953 IN BOOK 2508,PAGE 200 OF OFFICIAL RECORDS. PARCEL C: AN EASEMENT FOR INGRESS AND EGRESS FOR PEDESTRIAN PURPOSES OVER A PORTION OF THE NORTH HALF OF BLOCK 1807 OF EAST SIDE VILLA TRACT, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 4,PAGE 65 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID NORTH HALF OF BLOCK 1807; THENCE ALONG THE SOUTHERLY LINE OF SAID NORTH HALF OF BLOCK 1807, SOUTH 89"1725" WEST 6.50 FEET TO A LINE PARALLEL WITH AND DISTANT 6.50 FEET WESTERLY OF THE EASTERLY LINE OF SAID BLOCK 1807; THENCE ALONG SAID PARALLEL LINE NORTH 00040'00" WEST 8.00 FEET TO A LINE PARALLEL WITH AND DISTANT 8.00 FEET NORTHERLY OF SAID SOUTHERLY LINE OF THE NORTH HALF OF BLOCK 1807; THENCE ALONG LAST SAID PARALLEL LINE NORTH 89017'25" EAST 6.50 FEET TO SAID EASTERLY LINE OF BLOCK 1807; THENCE 2272/026565-0004 3060319.9 a06125112 Exhibit"A" - Ordinance No. 3955 ALONG SAID EASTERLY LINE SOUTH 00"04'00" EAST 8.00 FEET TO SAID SOUTHEASTERLY CORNER AND TRUE POINT OF BEGINNING. APN: APN 025-200-72 2272/026565-0004 3060319.9 a06C'5/12 -2- Exhibit"A" - Ordinance No. 3955 ACKNOWLEDGMENT State of Colorado ) County of LXUq At-3 } On \JU�� 2-3 z0/2 ,before me, (a.-� Is , (insert name and title of the officer) Notary Public,personally appeared r fC�t - who proved to me on the basis of satisfacta ev e idenc be person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/herltheir 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. I certify under PENALTY OF PERJURY under the laws of the State of Colorado that the foregoing paragraph is true and correct. WITNESS my hand and official seal. \���,�►�����!���ri����� Is Signature C" �e E�bt �P �UT��y (Seal) urea PUBUC p �v State of California ) OFtiCio�O 0\\\� County of ) before me, L-. (insert }�name and title of the officer) Notary Public,personally appeared` l�C� fit . n?�S ^ AA) L- who proved to me on the basis of satisfactory evidence to be the persoi0s whose name�ls axe subscribed to the within instrument and acknowledged to me that4w, s -ey�executed the same in-hisAwW their authorized capacit}�ies,, and that by-� their signature s&on the instrument the perso s" or the entity upon behalf of which the persoro acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature- = (Seal) P.L.ESPARZA Commission# 1857021 z i •s; Notary Public-California a z Orange County my Comm.Ex ires Au 4.20131 2272/026565-0004 3W0319,9 alw-'5/I2 Ord. No. 3955 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, JOAN L. FLYNN,the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a regular meeting thereof held on August 06, 2012, and was again read to said City Council at a regular meeting thereof held on August 20,2012, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Shaw, Harper, Dwyer, Hansen, Carchio, Bohr, Boardman NOES: None ABSENT: None ABSTAIN: None I,Joan L.Flynn,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on August 30,2012. In accordance with the City Charter of said City Joan L. Flynn, Qi1y Clerk C t Clerk and ex-officio erk senior Deputy City Clerk of the City Council of the City of Huntington Beach, California