HomeMy WebLinkAboutSANTA ANA PACIFIC ASSOCIATES, SANTA ANA PACIFIC ASSOCIATES IIRECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
City of Santa Ana
Clerk of the Council
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, California 92702
Attention: Clerk of the Council
A-2019-158
MAR 1 0 2029
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
11111I 11111111111111111111111111111111111111111111111 l 111111 NO FEE
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Free Recording pursuant to
Government Code 27383
DENSITY BONUS HOUSING AGREEMENT
This DENSITY BONUS HOUSING AGREEMENT ("Agreement'), made and entered
into this 20`h day of August, 2019 ("Effective Date"), by and between the City of Santa Ana, a
charter city and municipal corporation of the State of California ("City"), and Santa Ana Pacific
Associates, A California Limited Partnership, a California limited partnership, and Santa Ana , >�
Pacific Associates II, A California Limited Partnership, a California limited partnership i
(collectively, "Developer"). City and Developer are sometimes referred to collectively as the
"Parties" and individually as a "Party."
RECITALS
A. Developer is the leasehold owner of certain property located within the City of
Santa Ana, County of Orange, State of California, commonly known as 2110, 2114, and 2020 East
First Street, Santa Ana, California, and legally described as set forth in Exhibit A attached hereto
and incorporated herein by this reference as if set forth in full ("Property").
B. Developer is proposing to develop an affordable rental family -oriented mixed use
commercial and residential community consisting of 9,998 square feet of leasable commercial area
and five -hundred and fifty-two (552) residential units on the Property as more particularly set forth
in Density Bonus Application No. 2017-02 and Site Plan Review No. 2017-09 ("Project').
C. Santa Ana Municipal Code sections 41-1600, et seq. ("City Density Bonus for
Affordable Housing"), and California Government Code sections 65915, et seq. ("State Density
Bonus Law"), set forth a process to provide increased residential densities to property owners who
guarantee that a portion of their residential development will be available to low income, very low-
income, or senior (also known as "qualified") households. These regulations are intended to
materially assist the housing industry in providing adequate and affordable housing for all
economic segments of the community and to provide a balance of housing opportunities for very
low-income, low income and senior households throughout the city.
D. Although the Project is proposing a total number of units (552) that is below the
maximum City -prescribed density for the Project site based on its acreage (620), the Developer is
able to seek up to three (3) density bonus concessions and a waiver because it is a 100-percent
affordable Project. The three (3) requested concessions and the waiver are permitted by State
Density Bonus Law. Specifically, Developer is seeking concessions allowed pursuant to
Government Code section 65915(d)(1) pertaining to: publicly accessible open space; building
setbacks; and, residential parking; as well as a waiver allowed pursuant to Government Code
section 65915(e)(1) pertaining to driveway width.
E. For the purpose of implementing State Density Bonus Law, City Density Bonus for
Affordable Housing, and City Housing Opportunity Ordinance concessions in response to
Developer's request for three (3) density bonus concessions and a waiver, Developer has agreed
to restrict all Units in the Project, except for five (5) manager's units, to Eligible Households,
which includes Very Low Income and Low Income Tenants.
F. The Project complies with the affordable housing requirements set forth in the State
Density Bonus Law, City Density Bonus for Affordable Housing, and City Housing Opportunity
Ordinance.. For purposes of this Agreement, the Project shall be the "housing development" as
defined in the State Density Bonus Law.
G. In light of the purpose of the State Density Bonus Law, City Density Bonus for
Affordable Housing, and City Housing Opportunity Ordinance, and the express provisions of
Government Code section 65915(n), as well as Santa Ana Municipal Code section 41-1904.1, the
City has determined to grant Developer's application for density bonuses and related concessions
and incentives.
H. This Agreement, and the exhibits attached hereto and incorporated herein by
reference, is intended to set forth the terms and conditions for the implementation of the Project's
requirement to provide affordable housing units in exchange for receiving the Density Bonus
concessions and incentives set forth herein.
L The Developer has paid the City's Density Bonus Setup fee in the amount of
$ 82,084.05.
NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein
by this reference, and of the mutual covenants contained and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS AND EXHIBITS
1.1 Definitions. In addition to the terms that may be defined elsewhere in this
Agreement, the following terns when used in this Agreement shall be defined as follows:
1.1.1 "Adjusted for family size appropriate to the unit" shall have the
meaning set forth by the California Tax Credit Allocation Committee, from time to time, in
administering the low income housing tax credit prograins.
1.1.2 "Affordable Rent" means the maximum Monthly Rent that may be
charged to and paid by an Eligible Household for the Affordable Units, as required by the terns
of this Agreement.
1.1.3 "Affordable Rent Schedule" means a rent schedule established as of the
date of issuance of an occupancy permit (exclusive of tenant utility payments or security deposits)
for the required number/percentage of the total number of units in the Project which are to be
rented or available for rent to very low or low income tenants. Said Affordable Rent Schedule
shall be established at the time of the issuance of the occupancy permit ("Initial Rent Schedule")
and shall be created in accordance with the Orange County, California Primary Metropolitan
Statistical Area ("PMSA") as published by the United States Department of Housing and Urban
Development ("HUD"), adjusted for family size.
1.1.4 "Affordable Units" means five -hundred and fifty-two (552) units which
shall be comprised of twenty-seven 27) one (1) bedroom Units, two -hundred and thirty-nine (239)
two (2) bedroom Units, one -hundred and forty-six (146) three (3) bedroom Units, and one -hundred
and forty (140) four (4) bedroom Units, of which five (5) Unrestricted Units (i.e. —manager's unit),
with unit sizes as may be determined by the Developer.
1.1.5 "Agreement" means this Density Bonus Housing Agreement.
1.1.6 Reserved
1.1.7 "City" means the City of Santa Ana, California
1.1.8 "City Council" means the City Council of the City of Santa Ana.
1.1.9 "City Attorney" means the City Attorney for the City of Santa Ana.
1.1.10 "City Manager" means the City Manager for the City of Santa Ana.
1.1.11 "City's Planning Commission" means the Planning Commission for the
City of Santa Ana.
1.1.12 "Density Bonus Housing Agreement Term" means the period during
which this Agreement shall be in full force and effect, as provided for in Section 6.1 below.
1.1.13 Reserved
1.1.14 "Developer" means collectively, Santa Ana Pacific Associates, A
California Limited Partnership, a California limited partnership, and Santa Ana Pacific Associates
11, A California Limited Partnership, a California limited partnership, and their permitted
successors and assigns to all or any part of the Property.
1.1.15 "Effective Date" means the date the City Council of City approves this
Agreement and from then on this Agreement shall be in full force and effect.
1.1.16 "Eligible Household" means a Household whose income does not exceed
the qualifying limit for a "very low income tenant" or "lower income tenant" as defined herein,
which means persons and families whose income does not exceed the qualifying limit for very low
income or lower income households.
1.1.17 "Household" means all persons residing in a Unit.
1.1.18 "Low Income Tenant" means persons and families whose income does not
exceed eighty percent (80%) area median income for the Orange County, California PMSA,
adjusted for household size, as published by the California Tax Credit Allocation Committee.
1.1.19 "Median Income" means the Orange County, California area median
income, adjusted for family size appropriate to the unit, as periodically published by the California
Tax Credit Allocation Committee.
1.1.20 "Monthly Rent" means the total of monthly payments for (a) use and
occupancy of each Affordable Unit and land and facilities associated therewith, (b) any separately
charged fees or service charges assessed by Developer which are required of all tenants, other than
security deposits, application fees or credit check fees (c) a reasonable allowance for an adequate
level of service of utilities not included in (a) or (b) above, including garbage collection, sewer,
water, electricity, gas and other heating, cooking and refrigeration fuels, but not including
telephone or cable service, and (d) possessory interest, taxes or other fees or charges assessed for
use of the land and facilities associated therewith by a public or private entity other than Developer.
In the event that certain utility charges are paid by the landlord rather than the tenant, no utility
allowance shall be deducted from the rent for that type of utility charge.
1.1.21 "Project" means that certain residential development as more particularly
described in Recital B and Section 2 of this Agreement.
1.1.22 "Property" means that certain real property more particularly described in
the legal description in Exhibit A and improvements thereon.
1.1.23 "State Density Bonus Law" means Government Code sections 65915, et
seq., as they exist on the Effective Date.
1.1.24 "Unit" means a residential dwelling unit within the Project to be
constructed by Developer pursuant to this Agreement.
1.1.25 "Unrestricted Units" means the Units within the Project to be constructed
by Developer to a Household without restriction (i.e. — manager's unit).
1.1.26 "Very Low Income Tenant" means persons and families whose income
does not exceed fifty (50%) of the area median income for the Orange County, California PMSA,
adjusted for household size, as published by the California Tax Credit Allocation Connnittee.
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1.2 Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement:
1.2.1 Exhibit A — Legal Description of the Property
1.2.2 Exhibit B — Tenant Verification
2. DEVELOPMENT OF THE PROPERTY
2.1 Project. Developer shall develop, operate, and maintain the Property as a five -
hundred and fifty-two (552) Unit affordable rental family -oriented mixed -use commercial and
residential community.
2.2 Density Bonus. The Project shall have five -hundred and fifty-two(552) Units, to
be rented, occupied, operated, and maintained pursuant to the terns and conditions of this
Agreement. Developer understands and agrees that Developer is not utilizing a density bonus
increase provided by the State Density Bonus Law or a density bonus provided by the City's
Housing Opportunity Ordinance. However, Developer is only proposing five -hundred and fifty-
two 552 Units, so Developer shall not construct or develop, or otherwise claim a right to construct
or develop any additional State and/or City Density Bonus Units on the Property.
2.3 Development Concessions and Waivers. As set forth in the City entitlements,
Developer petitioned for and was granted the following concessions and waivers as part of the
approval of Site Plan Review No. 2017-09 for the Project:
2.3.1 The residential parking requirements for the Project shall be reduced from
two (2) spaces per unit overall to 1.03 spaces per unit.
2.3.2 The publicly accessible open space requirement calculation shall be reduced
from 15% of total lot area to less than 2% of total lot area.
2.3.3 The building front yard setback requirement shall be amended from a
minimum of twenty (20) feet to a minimum of six (6) feet. The building side yard setback
requirement shall be amended from a minimum of ten (10) feet to a minimum of six (6) feet. The
building rear yard setback requirement shall be amended from a minimum of one hundred (100)
feet to a minimum of forty-five (45) feet.
2.3.4 The driveway width requirement shall be increased from a maximum of
twenty-four (24) feet to thirty-eight to forty-six (38-46) feet.
2.4 In exercising the rights granted to the developer under AB 744 the parkin
g
requirements for the Project shall be reduced in accordance with Government Code Section
65915(p), such that a total of 566 resident and guest parking spaces will be provided in an at -grade
parking area beneath the residential levels, as well as 50 parking spaces for the commercial
component and 4 spaces for the leasing office and the development's employees.
2.5 No Further Concessions or Incentives. Developer acknowledges and agrees that
the waivers and incentives set forth in section 2.3 above fully satisfy any duty City may have under
the Santa Ana Municipal Code, the Density Bonus Law, or any other law or regulation applicable
to the Project, to provide any development incentive or to waive any building, zoning, or other
requirement. By this Agreement, Developer releases any and all claims Developer may have
against City in any way relating to or arising from City's obligation to waive requirements of or
provide development incentives pursuant to any state, federal, or local law, rule, or regulation
applicable to the Project.
2.6 Unrestricted Units. The Project, for purposes of this Agreement, may have no more
than five 5 Unrestricted Units (i.e. — manager's unit) with unit sizes as may be determined by the
Developer. Developer may alter the unit distribution of the Unrestricted Units in Developer's
discretion, provided that the Project has the minimum number of Affordable Units and the
minimum distribution thereof as specified in this Agreement.
2.7 Affordable Units. The Project, for purposes of this Agreement, shall have no less
than five -hundred, forty-seven (547) Units designated as Affordable Units pursuant to the terns
and conditions of this Agreement. The Affordable Units shall be consistent with all City approvals,
and shall be located throughout the Project.
2.8 Minimum Development Standards for Affordable Units. The Affordable Units
shall be constructed with the same exterior appearance and interior features, fixtures, and
amenities, and shall use the same type and quality of materials as provided for any Unrestricted
Units, regardless of whether such Unrestricted Units are in the Project.
2.9 Permits and Processing; Compliance with Laws. Developer at its sole cost and
expense shall secure or cause to be secured any and all permits that may be required by City or
any other federal, state, or local governmental entity having or claiming jurisdiction over the
Property or Project. Upon securing any and all permits, Developer shall carry out and perform the
development, operation, and maintenance of the Project in conformity with all applicable federal,
state, and local laws and regulations, and all conditions of approval issued by the City Council and
City's Planning Commission for the Project. Any changes to the Project shall be reviewed by the
City to determine compliance with this Agreement. If any changes to the Project shall materially
alter the ability of Developer to comply with any terms of this Agreement in City's sole
determination, then City shall have the option to declare this Agreement null and void in its sole
discretion.
2.10 Relocation Prior to Development of Project. If relocation is required prior to the
completion of development of the Project, Developer shall have the sole and exclusive
responsibility for providing relocation assistance and paying all relocation costs as may be required
to comply with applicable federal and state laws and regulations. In addition to any other indemnity
provided by Developer under this Agreemment, Developer shall indemnify, defend (with counsel of
City's choosing and the consent of Developer, which shall not be unreasonably withheld, and
which may be joint defense counsel upon City's and Developer's consent), and hold harmless City
and all of its officials, officers, employees, representatives, volunteers and agents from any and all
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alleged or actual claims, causes of action, liabilities, and damages from any third party for
relocation assistance, benefits and costs prior to the completion of the development of the Project.
2.11 Local Sourcing Plan. Developer agrees to make a good faith effort to encourage
contractors and suppliers to hire and procure locally, to the extent that it is cost effective and does
not delay the overall project development schedule. Prior to issuance of Building Permit,
Developer shall develop and submit to the Community Development Agency (the "CDA") a local
sourcing plan for the Project targeting, to the extent feasible, the hiring of qualified workers,
construction contractors, or the purchasing of goods locally within the City of Santa Ana. The plan
must be reviewed and approved by the CDA which if not granted or denied within five (5) Business
Days, shall be deemed approved (with such approval not to be unreasonably withheld) and be
implemented for the construction of the project prior to issuance of Building Permit.
2.12 Mechanic's Liens: Indemnification. Developer shall take all actions reasonably
necessary to remove any future mechanic's liens or other similar liens (including design
professional liens) against the Property or Project, or any part thereof, by reason of work, labor,
services, or materials supplied or claimed to have been supplied to Developer or anyone holding
the Property or Project, or any part thereof, through or under Developer. Prior to the recording of
this Agreement (or memorandum thereof) pursuant to Section 4.1 below, Developer shall provide
evidence from the Title Company of any new recordings against the Property or Project. City
hereby reserves all rights to post notices of non -responsibility and any other notices as may be
appropriate upon a filing of a mechanic's lien. In addition to any other indemnity provided by
Developer under this Agreement, Developer shall indemnify, defend (with counsel of City's
choosing and the consent of Developer, which shall not be unreasonably withheld, and which may
be joint defense counsel upon City's and Developer's consent), and hold harmless City and all of
its officials, officers, employees, representatives, volunteers and agents from any and all alleged
or actual claims, causes of action, liabilities, and damages from any third party by reason of a
mechanic's lien or work, labor, services, or materials supplied or claimed to have been supplied to
Developer or anyone holding the Property or Project, or any part thereof, through or under
Developer.
3. AFFORDABILITY
3.1 Total Affordability Term. Each Affordable Unit shall be restricted to use and
occupancy by an Eligible Household for a total period of no less than fifty-five (55) years ("Total
Affordability Tern"). The Total Affordability Term for an Affordable Unit shall commence on
the date that the Affordable Unit receives all required occupancy permits from the City. By way
of explanation of the foregoing two sentences, it is possible that the Total Affordability Period for
one Affordable Unit will neither commence on the same date nor terminate on the same date as
another Affordable Unit, and it is possible that the Total Affordability Terns for all Affordable
Units will commence on different days and terminate on different days.
3.2 Memorializing Commencement of Total Affordability. Developer shall keep
detailed records of the commencement date of the Total Affordability Tern for each Affordable
Unit. City shall have the right to review and verify said records to ensure that the commencement
date specified by Developer for an Affordable Unit coincides with the date that the initial
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Affordable Unit received all permits from City required for occupancy of the Unit. In the event
that a conflict exists between the date specified by Developer for the commencement of the Total
Affordability Tenn for an Affordable Unit and the date specified by City's issuance of all required
permits for occupancy of the Unit, the date specified by City's issuance of all required permits for
occupancy of the Unit shall control.
3.3 Levels of Affordability.
3.3.1 Very Low Income Tenants. Developer covenants that no less than fifty-six
56 Affordable Units in the Project shall at all times during the Density Bonus Housing Agreement
Term be rented to, or held vacant and available for immediate occupancy by Very Low Income
Tenants, at a rent that does not exceed thirty percent (30%) of fifty percent (50%) of the area
median income, as adjusted for household size, including an allowance for utilities.
3.3.2 Low Income Tenants. Developer covenants that no less than four hundred.
ninety-one (491) Affordable Units in the Project shall at all times during the Density Bonus
Housing Agreement Term be rented to, or held vacant and available for immediate occupancy by
Lower Income Tenants, at a rent that does not exceed thirty percent (30%) of sixty percent (60%)
of the area median income, as adjusted for household size, including an allowance for utilities.
3.4 Affordable Rental Schedule. The Affordable Rental Schedule shall be determined
by the regulatory agreements entered into between the Developer and the California Tax Credit
Allocation Committee (CTCAC) and the California Debt Limit Allocation Committee (CDLAC)
governing the project.
4. OWNERSHIP AND OPERATION OF THE PROJECT BY OWNER
4.1 Recording of Documents. No later than issuance of building permits for the Project,
Developer and the City shall record or cause to be recorded in the Official Records for Orange
County, California, an executed original of this Agreement. City shall cooperate with Developer
in promptly executing in recordable form this Agreement. Upon the date of recording, the terns
and conditions of this Agreement shall be binding upon and run with the Property and the Project.
It is the express intent and agreement between the Parties that this Agreement shall remain binding
and enforceable against the Property, the Project, and the Units to ensure compliance with the State
Density Bonus Law, City Density Bonus Law, and the City Housing Opportunity Ordinance, and
to ensure the continued supply of Affordable Units in the Project.
4.2 Rental of Units. Upon the completion of construction of the Project and receipt by
Developer of all required permits for the occupancy of the Units, Developer shall rent or cause to
be rented each Affordable Unit for the Total Affordability Tenn for such Affordable Unit in
accordance with the terns and conditions set forth in this Agreement, which provide among other
terns and conditions for the rental of each Affordable Unit at an Affordable Rent to an Eligible
Household for the Total Affordability Tenn.
4.3 Location of Affordable Units. During the Density Bonus Housing Agreement
Term, the Affordable Units shall be disbursed throughout the Project in accordance with the terms
and conditions set forth in this Agreement.
4.4 Occupancy Levels. The number of persons permitted to occupy each Affordable
Unit shall not exceed the occupancy permitted pursuant to the requirements of the United States
Department of Housing and Urban Development. In the event that a household residing in an
Affordable Unit exceeds the permitted number of persons, then that household shall be placed on
the waiting list for the appropriate -sized unit and be eligible for transfer when that unit becomes
available. If the household refuses to transfer to the appropriate -sized unit then the Owner will
have grounds to terminate that household's lease.
4.5 Use of the Property. All uses conducted on the Property, including, without
limitation, all activities undertaken by the Developer pursuant to this Agreement, shall conform to
all applicable provisions of the Santa Ana Municipal Code and other applicable federal, state, and
local laws, rules, and regulations. The Project shall at all times during the term of this Agreement
be used as an apartment complex and none of the Housing Units in the Project shall at any time be
utilized on a transient basis, nor shall the Property or any portion thereof ever be used as a hotel,
motel, dormitory, fraternity or sorority house, rooming house, hospital, nursing home, sanitarium
or rest home, or be converted to condominium ownership. All of the community facilities and any
social programs provided to the Project's residents shall be available on an equal,
nondiscriminatory basis to residents of all Housing Units at the Project.
4.6 Maintenance. Owner shall, at all times during the term of this Agreement, cause
the Property and the Project to be maintained in a decent, safe and sanitary manner, regardless of
cause of the disrepair. Owner shall be fully and solely responsible for costs of maintenance, repair,
addition and improvements. City, and any of its employees, agents, contractors or designees shall
have the right to enter upon the Property at reasonable times and in a reasonable manner to inspect
the Project. If at any time Developer fails to maintain the Project or the Property in accordance
with this Agreement and such condition is not corrected within five (5) days after written notice
from City with respect to debris and waste material, or thirty (30) days after written notice from
City with respect to general maintenance, landscaping and building improvements, then City, in
addition to whatever remedy it may have at law or at equity, shall have the right to enter upon the
applicable portion of the Project or the Property and perform all acts and work necessary to protect,
maintain, and preserve the Project and the Property, and to attach a lien upon the Property, or to
assess the Property, in the amount of the expenditures arising from such acts and work of
protection, maintenance, and preservation by City and/or costs of such cure, including a reasonable
administrative charge, which amount shall be promptly paid by Developer to City upon demand.
4.6.1 Property_ Maintenance Agreement. Subject to review and applicability by the
Planning and Building Agency (the "PBA"), the CDA, the Public Works Agency (the "PWA"),
and the City Attorney to ensure that the property and all improvements located thereupon are
properly maintained, Developer (and the owner of the property upon which the authorized use
and/or authorized improvements are located if different from the applicant) shall execute a
maintenance agreement with the City of Santa Ana prior to occupancy which shall be recorded
against the property and which shall be in a form reasonably satisfactory to the City Attorney. The
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maintenance agreement shall contain covenants, conditions and restrictions relating to the
following:
(a) Compliance with operational conditions applicable during any period(s) of
construction or major repair (e.g., proper screening and securing of the construction site;
implementation of proper erosion control, dust control and noise mitigation measure;
adherence to approved project phasing etc.);
(b) Compliance with ongoing operational conditions, requirement and restrictions
as applicable, the proper storage and disposal of trash and debris, and/or restrictions on
certain uses;
(c) Ongoing compliance with approved design and construction parameters,
signage parameters and restrictions as well as landscape designs, as applicable;
(d) Ongoing maintenance, repair and upkeep of the property and all improvements
located thereupon (including but not limited to controls on the proliferation of trash and
debris about the property; the proper and timely removal of graffiti; the timely
maintenance, repair and upkeep of damaged, vandalized and/or weathered buildings,
structures and/or improvements; the timely maintenance, repair and upkeep of exterior
paint, parking striping, lighting and irrigation fixtures, walls and fencing, publicly
accessible bathrooms and bathroom fixtures, landscaping and related landscape
improvements and the like, as applicable);
(e) If Developer and the owner of the property are different (e.g., if the applicant is
a tenant or licensee of the property or any portion thereof), both the applicant and the owner
of the property shall be signatories to the maintenance agreement and both shall be jointly
and severally liable for compliance with its terms;
(f) The maintenance agreement shall further provide that any party responsible for
complying with its terns shall not assign its ownership interest in the property or any
interest in any lease, sublease, license or sublicense, unless the prospective assignee agrees
in writing to assume all of the duties and obligations and responsibilities set forth under
the maintenance agreement;
(g) The maintenance agreement shall contain provisions relating to the enforcement
of its conditions by the City and shall also contain provisions authorizing the City to
recover costs and expenses which the City may incur arising out of any enforcement and/or
remediation efforts which the City may undertake in order to cure any deficiency in
maintenance, repair or upkeep or to enforce any restrictions or conditions upon the use of
the property. The maintenance agreement shall further provide that any unreimbursed costs
and/or expenses incurred by the City to cure a deficiency in maintenance or to enforce use
restrictions shall become a lien upon the property in an amount equivalent to the actual
costs and/or expense incurred by the City; and,
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(h) The execution and recordation of the maintenance agreement shall be a
condition precedent to the issuance of the Certification of Occupancy.
4.7 Marketing Program. Each Affordable Unit shall be leased to Eligible Households
selected by Developer who meet all of the requirements provided herein. Prior to Certificate of
Occupancy, Developer shall prepare and obtain City's approval, which approval shall not be
unreasonably withheld, of a marketing program for the leasing of the Housing Units at the Project
("Marketing Program"). The leasing of the Housing Units shall thereafter be marketed in
accordance with the Marketing Program as the same may be amended from time to time with
City's prior written approval, which approval shall not unreasonably be withheld. Upon request,
Developer shall provide City with periodic reports with respect to the leasing of the Housing Units.
4.8 Management Plan. Prior to Certificate of Occupancy, Developer shall submit for
the reasonable approval of City a "Management Plan" which sets forth in detail Developer's
property management duties, a tenant selection process in accordance with this Agreement, a
security system and crime prevention program, the procedures for the collection of rent, the
procedures for eviction of tenants, the rules and regulations for the Property and manner of
enforcement, a standard lease form, an operating budget, the identity and emergency contact
information of the professional property management company to be contracted with to provide
24-hour onsite property management services at the Property ("Property Manager"), and other
matters relevant to the management of the Property. The Management Plan shall require
Developer to adhere to a fair lease and grievance procedure. The management of the Property
shall be in compliance with the Management Plan as approved by City.
If City determines that the performance of the Property Manager is deficient based upon
the standards set forth in the approved Management Plan and in this Agreement, City shall provide
notice to Developer of such deficiencies and Developer shall use its best efforts to correct such
deficiencies. In the event that such deficiencies have not been cured within thirty (30) days, City
shall have the right to require Developer to immediately remove and replace the Property Manager
with another property manager or property managernent company which is reasonably acceptable
to the City Manager, which is not related to or affiliated with Developer, and which has not less
than five (5) years experience in property management, including significant experience managing
housing facilities of the size, quality and scope of the Project.
4.9 Selection of Tenants.
4.9.1 Developer shall be responsible for the selection of tenants for the Housing
Units in compliance with lawful and reasonable criteria and the requirements of this Agreement.
Developer agrees that all of Affordable Units will be available to families or qualifying residents
as defined under California Civil Code section 51.3.
4.9.2 Local preference for Santa Ana residents and workers in tenant selection
shall be a requirement of the Project. Subject to applicable laws and regulations governing
nondiscrimination and preferences in housing occupancy required by the State of California, the
Developer shall give preference in leasing units to households that live and/or work in the City of
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Santa Ana or who have an active Housing Choice Voucher issued by the Housing Authority of the
City of Santa Ana or any other Public Housing Authority.
4.9.3 Prior to the rental or lease of an Affordable Unit to a tenant(s), Developer
shall require the tenant(s) to execute a written lease and to complete a Tenant Income Verification
Form (in substantially the form attached hereto as Exhibit B) certifying that the tenant(s)
occupying the Affordable Unit is/are an Eligible Household and otherwise meet(s) the eligibility
requirements established for the Affordable Unit. Developer shall verify the income of the
tenant(s) as set forth herein.
4.10 Income Verification and Certification. Owner covenants to City that it will at all
times abide by all specific compliance standards set forth in the regulatory agreements entered into
between the Owner and the California Tax Credit Allocation Committee (CTCAC) and the
California Debt Limit Allocation Committee (CDLAC), including but not limited to such standards
as relate to the number of very -low and low income affordable units by number of bedrooms,
standards for qualifying household incomes and other qualifying criteria. Owner shall provide
City with a certified copy of each of the recorded Regulatory Agreements applicable to the Project.
The compliance standards set forth in said Regulatory Agreements are hereby incorporated by
reference as fully set forth herein. In the event of a conflict between this Agreement and the
Regulatory Agreements: (1) the more stringent requirement shall prevail if such interpretation
eliminates the relevant conflict; or (2) the Regulatory Agreements, or any of them, shall prevail.
Developer agrees to make a good faith effort to verify that the income and asset statement
provided by an applicant in an income certification is accurate by taking at least one of the
following steps as a part of the verification process: (1) obtain three months consecutive pay stubs
for the most recent pay period, (2) obtain an income tax return for the most recent tax year, (3)
obtain an income verification form from the applicant's current employer, (4) obtain an income
verification form from the Social Security Administration and/or the California Department of
Social Services if the applicant receives assistance from either of such agencies, or (5) if the
applicant is unemployed and has no such tax return, obtain another form of independent
verification.
4.11 Monitoring and Recordkeeping. Throughout the Term of this Agreement,
Developer shall annually complete and submit to City a Certification of Continuing Program
Compliance in the form provided by City. Owner agrees to pay a reasonable fee, as set by City
resolution, for the purpose of paying the actual costs associated with the City's obligation to
monitor Owner's compliance with the affordability restrictions contained in this Agreement related
to the Density Bonus units, not to exceed monitoring costs for up to 133 units. The City shall first
start with the review of all reports and monitoring prepared by Owner for the California Tax Credit
Allocation Committee (CTCAC) and the California Debt Limit Allocation Committee (CDLAC)
each year. Representatives of City shall be entitled to enter the Property if necessary after review
of above documentation, upon at least forty-eight (48) hour notice, to monitor compliance with
this Agreement, and shall be entitled to inspect the records of the Project and to conduct an
independent audit or inspection of such records at a location within the City that is reasonably
acceptable to the City. Developer agrees to cooperate with City in making the Property and the
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records of the Project available for such inspection or audit. Developer agrees to maintain each
record of the Project for no less than five (5) years after creation of each such record.
Developer shall allow the City to conduct annual inspections of each of the Affordable
Units on the Property after the date of construction completion, with reasonable notice. Developer
shall cure any defects or deficiencies found by the City while conducting such inspections within
ten (10) Business Days of written notice thereof, or such longer period as is reasonable within the
sole discretion of the City.
4.12 Application and Financial Preparedness. Developer shall submit for review and
approval by the CDA and the PBA, a booklet completed by the Developer at least 12 months prior
to the initial leasing of the units. This booklet can be made available at the Property Manager's
office or at another location agreed upon by the Owner, the CDA, and the PBA. The purpose of
this booklet is to inform interested persons regarding minimum application and eligibility
requirements and to assist interested persons with application and financial preparedness and
eligibility for residency at the Project at the initial leasing of the units. Developer shall also work
with CDA to hold a minimum of two workshops to be coordinated by the Developer at least 12
months prior to the initial leasing of the units.
4.13 Onsite Supportive Services Programs and Amenities. Throughout the Tenn of this
Agreement, and to the extent such can be coordinated with and largely supplied by philanthropic
and other social welfare providers, Developer shall provide residents of the Project access to
discounted or no -cost onsite supportive services, programming, and amenities that promote
independent living and include but are not limited to: health and wellness services, transportation
services, social activities, and physical or recreational amenities.
4.14 Alternative Transportation and Energy Source Resource Conservation and LEED
Certification. While not a condition of the project's Density Bonus, in recognition of the City's
desire to optimize the energy efficiency of the project, Developer agrees to consult with the project
design team, a CABEC certified 2016 Certified Energy Analyst, a LEED AP Homes (low-rise and
mid -rise), LEED AP BD+C (high rise), National Green Building Standard (NGBS) Green Verifier,
or GreenPoint Rater (one person may meet both of these latter qualifications) early in the project
design process to evaluate a building energy model analysis and identify and consider energy
efficiency or generation measures beyond those required by the TCAC minimum construction
standards. Prior to the meeting, the energy analyst shall complete an initial energy model based on
either current T24 standards or, if the project is eligible, the California Utility Allowance
Calculator using best available information on the project. To the extent financially feasible for
the project, Developer agrees to incorporate and optimize energy efficient building materials,
methods, and amenities.
4.15 Reserved.
4.16 Onsite Property Manager. The Project shall include the provision to have 24-hour on -
site Property Management services and personnel. Up-to-date 24-hour contact information for the
on -site personnel shall be provided to the following City Agencies on an ongoing basis:
(a) Police Department
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(b) Fire Department
(c) Planning and Building Agency
(d) Community Development Agency
4.17 Emergency Evacuation Plan. Developer shall submit and obtain approval of an
Emergency Evacuation Plan (the EEP) from City Police and Fire Protection agencies prior to
issuance of a Certificate of Occupancy. Up-to-date 24-hour emergency contact infornlation for
the on -site personnel shall be provided to the City on an ongoing basis and the approved EEP shall
be kept onsite and also be submitted to the following City Agencies:
(a) Police Department
(b) Fire Department
(c) Planning and Building Agency
(d) Community Development Agency
4.18 Crime Free Housing. Developer shall work with City Staff to develop a crime free
housing policy, procedure, and design plan (the "CFH Plan"). Developer shall submit and obtain
approval from the PBA the CFH Plan meeting the requirements of this Subsection 4.18 prior to
issuance of the Certificate of Occupancy. The approved CFH Plan shall be implemented and
administered by Property Management.
4.19 Onsite Parking Management Plan. Developer shall provide onsite parking for
residents and visitors of the Project and actively monitor the parking demand of the Project site.
Developer shall continually monitor and take appropriate measures to manage the parking demand
of the Project site to mitigate the use of offsite parking spaces on private or public properties and/or
right-of-way. Prior to issuance of the Certificate of Occupancy, Developer shall submit and obtain
approval from the PBA a Parking Management Plan (the "PMP") meeting the requirements of this
Subsection 4.19. The approved PMP shall be adhered to and be enforced by the Project at all
times.
4.20 Parking Shuttle and/or Valet Service.
(a) Developer must identify which parking lots have agreed to rent out parking spaces
for the valet service;
(b) Developer must identify specific shuttle stop locations and must obtain approval
from the Orange County Transportation Authority (OCTA) to utilize its bus
stops/pullouts as part of its shuttle service operations;
(c) All residents of driving age must disclose any owned, leased, or rented vehicles to
be permitted to park on the project site or any properties as part of the valet or
shuttle service;
(d) Each tenant must agree to terms prohibiting parking of his or her vehicle on any
City -owned property;
(e) Every such agreement must contain penalties/consequences for violating the terms
of the agreement;
(f) Terms shall also be incorporated into the City's housing plan or agreement for the
Project;
(g) The shuttle shall be operated by the Developer and be at the Developer's expense;
14
(h) The Developer and/or management company shall maintain a copy of the shuttle's
operating plan, including days, times, and frequency of service, with the City's
Planning Division and Public Works Agency;
(i) The City can record a lien to collect any unpaid fines or monitoring costs;
0) The City may require the Developer and/or management company to include lease
provisions that limit the number of vehicles a tenant may possess during the tern
of occupancy; and,
(k) The Developer and/or management company shall work with the City's Planning
Division, Public Works Agency, and City Attorney's Office to document and
record the agreement.
4.21 Prior to issuance of building permits for above -ground construction, the Developer
shall provide the City of Santa Ana a copy of a recorded easement for reciprocal access (ingress,
egress, and fire access) for any and all proposed shared drive aisle(s) between the project site and the
adjacent property to the west.
4.22 Subject to the satisfaction and approval of the Executive Director of Planning and
Building Agency, the project and plans subject to Building Division plan check shall be revised
to:
a. Eliminate the use of stucco on all walls visible from First Street and incorporate
alternative solid materials, including, but not limited to, brick, natural stones,
wood, or a comparable product; and
b. Incorporate a combination of decorative balconies and balcony features for the
exterior building facade throughout the development project; and
c. Note and depict installation of a seven (7) to eight (8) foot tall perimeter wall at
the south property line and a wall with varying heights along the east and west
property lines as applicable and meeting city design standards and requirements;
and
d. Incorporate light color painted accent walls within the interior of the parking
structure highlighting entrances, access areas, elevators, stairways, and other
visible access areas as determined necessary by the City; and
e. The interior of the parking structure shall have a one (1) foot candle minimum
illumination level throughout as measured at the floor surface using LED light
fixtures; and
f. Add bike storage and bike lockers.
4.23 The project's Landscape plans shall be revised to note installation of minimum 20-
foot brown -trunk height trees along the east, south, west, and northern (perimeter) portions of the
site, subject to Planning Division approval.
5. [INTENTIONALLY RESERVED]
6. TERM OF THIS AGREEMENT
15
6.1 Term. The term of this Agreement ("Density Bonus Housing Agreement Tenn")
shall commence on the Effective Date and shall continue until the date that is fifty-five (55) years
after the City issues the last certificate of occupancy for the Project.
7. DEFAULT AND TERMINATION• INDEMNIFICATION
7.1 Default. Failure or delay by any Party to perform any term or provision of this
Agreement, which is not cured within thirty (30) days after receipt of notice from the other Party
specifying the default (or such other period specifically provided herein), constitutes a default
under this Agreement; provided, however, if such default is of the nature requiring more than thirty
(30) days to cure, the defaulting Party shall avoid default hereunder by commencing to cure
within such thirty (30) day period, and thereafter diligently pursuing such cure to completion
within an additional sixty (60) days following the conclusion of such thirty (30) day period (for a
total of ninety (90) days). Except as required to protect against further damages, the injured Party
may not institute proceedings against the Party in default until the time for cure has expired.
Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it
change the time of default.
7.2 Rights and Remedies Cumulative. The rights and remedies of the Parties are
cumulative, and the exercise by either Party of one or more of its rights or remedies shall not
preclude the exercise by it, at the same or different times, of any other rights or remedies for the
same default or any other default by the other Party.
7.3 Indemnification. In addition to any other indemnity specifically provided in this
Agreement, Developer agrees to defend (with counsel of City's choosing and the consent of
Developer, which shall not be unreasonably withheld, and which may be joint defense counsel
upon City's and Developer's consent) indemnify and hold harmless City and its respective officers,
officials, agents, employees, representatives, and volunteers (collectively, "Indemnitees") from
and against any loss, liability, claim, or judgment arising from any act or omission of Developer
in connection with its obligations under this Agreement, except to the extent caused by the active
negligence or willful misconduct of hidemnitees.
8. ASSIGNMENT• COVENANTS RUN WITH THE LAND
8.1 Assignment by Developer.
8.1.1 Prohibited Transfers or Assignment . Except as authorized in Section 8.1.2
below, Developer shall not sell, transfer, or assign the Property or Project in whole or in part, or
transfer or assign Developer's rights and obligations in this Agreement, without City's prior written
approval, which shall not be unreasonably withheld. Except for Permitted Transfers set forth in
Section 8.1.2 below, Developer shall: (i) notify City in writing of the sale, transfer, or assignment
of all or any portion of the Property, and (ii) deliver to City an assignment and assumption
agreement (or other agreement) in a form approved by City and executed by Developer and its
transferee/assignee pursuant to which Developer's transferee/assignee assumes all of Developer's
covenants and obligations set forth herein with respect to the Property or the portion thereof so
transferred. Any request for transfer or assigmnent of the Agreement by Developer shall require
10
the payment of fees or a deposit to compensate the City for approximate expenses incurred by
Developer to City, as applicable, for the City's review of the request.
8.1.2 Sale of Pro e�rty/Change of Use: Owner agrees and declares that the
Property and the Project shall be held, conveyed, mortgaged, encumbered, leased, rented, used,
occupied, operated, sold, and approved subject to all obligations set forth or incorporated in this
Agreement, all of which are for the purpose of enhancing and protecting the value and
attractiveness of the Property and the Project. All of the obligations set forth or incorporated in
this Agreement shall constitute covenants which run with the land and shall be binding on Owner
and its successors and assigns, and all parties having or acquiring any right, title or interest in, or
to any part of the Property or Project. Owner further understands and agrees that the Density
Bonus permit approvals received for this Project have been made on the condition that Owner and
all subsequent owners, or other successors and assigns of the Property and/or Project lease and
rent the Units in accordance with the terms and conditions stipulated in Sections 4, 5 and 6 of this
Agreement for a term of 55 consecutive years commencing upon the date that the Project is first
occupied.
8.1.3 Subsequent Assignment. As used in this Agreement, the term 'Developer"
shall be deemed to include any such transferee or assignee after the date such sale, transfer, or
assignment occurs in compliance with this Agreement.
8.1.4 Unpermitted Assigmnents Void. Any sale, transfer, or assignment made in
violation of this Agreement shall be null and void, and City shall have the right to pursue any right
or remedy at law or in equity to enforce the provisions of the restriction against unpermitted sales,
transfers, or assignments.
8.2 Covenants Run with the Land. The Property shall be held, sold, conveyed,
hypothecated, encumbered, used, occupied and improved subject to the covenants, conditions, and
restrictions set forth herein. The covenants, conditions, restrictions, reservations, equitable
servitudes, liens and charges set forth in this Agreement shall run with the Property and shall be
binding upon Developer and all persons having any right, title or interest in the Property, or any
part thereof, their heirs, and successive owners and assigns, shall inure to the benefit of City and
its successors and assigns, and may be enforced by City and its successors and assigns. The
covenants established in this Agreement shall, without regard to technical classification and
designation, be binding for the benefit and in favor of City and its successors and assigns, and the
parties hereto expressly agree that this Agreement and the covenants herein shall run in favor of
City, without regard to whether City is or remains an owner of any land or interest therein to which
such covenants relate. However, all such covenants and restrictions shall be deemed to run in favor
of all real property owned by City which real property shall be deemed the benefited property of
such covenants and this Agreement shall create equitable servitudes and covenants appurtenant to
all real property owned by City and ruining with the Property in accordance with the provisions
of Civil Code Section 1468. Furthermore, all of the covenants, conditions, and restrictions
contained herein shall also constitute easements in gross running in favor of City. City is deemed
the beneficiary of the terms and provisions of this Agreement and of the covenants running with
the land, for and in its own right and for the purposes of protecting the interests of the community
and other parties, public or private, in whose favor and for whose benefit this Agreement and the
17
covenants running with the land have been provided. Developer hereby declares its understanding
and intent that the burden of the covenants set forth herein touch and concern the land and that the
Developer's interest in the Property is rendered less valuable thereby. Developer hereby further
declares its understanding and intent that the benefit of such covenants touch and concern the land
by enhancing and increasing the enjoyment and use of the Property by the citizens of City and by
furthering the health, safety, and welfare of the residents of City.
9. MISCELLANEOUS
9.1 Entire Agreement. This Agreement and all of its exhibits and attachments set forth
and contain the entire understanding and agreement of the parties, and there are no oral or written
representations, understandings or ancillary covenants, undertakings or agreements which are not
contained or expressly referred to herein. No testimony or evidence of any such representations,
understandings or covenants shall be admissible in any proceeding of any kind or nature to
interpret or determine the terms or conditions of this Agreement.
9.2 Amendment. Any alteration, change or modification of or to this Agreement, in
order to become effective, shall be made in writing and in each instance approved by the City
Council and signed on behalf of each party. Any requested alteration, change or modification of
the Agreement by Developer shall require the payment of fees or deposit by Developer to City, as
applicable, for the City's review of the request. Each alteration, change, or modification to this
Agreement shall be recorded against the Site in the Official Records of Orange County, California.
9.3 Notices.
9.3.1 Delivery. As used in this Agreement, "notice" includes, but is not limited
to, the communication of notice, request, demand, approval, statement, report, acceptance,
consent, waiver, appointment or other communication required or permitted hereunder. All notices
shall be in writing and shall be considered given either: (i) when delivered in person to the
recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in
the United States mail in a sealed envelope as either registered or certified mail with return receipt
requested, and postage and postal charges prepaid, and addressed to the recipient named below; or
(iii) two (2) days after deposit in the United States mail in a sealed envelope, first class mail and
postage prepaid, and addressed to the recipient named below; or (iv) one (1) day after deposit with
a known and reliable next -day document delivery service (such as Federal Express), charges
prepaid and delivery scheduled next -day to the recipient named below, provided that the sending
party receives a confirmation of delivery from the delivery service provider; or (v) the first
business day following the date of transmittal of any facsimile, provided confirmation of
successful transmittal is retained by the sending Party. All notices shall be addressed as follows:
If to City: City of Santa Ana
Connnunity Development Agency
20 Civic Center Plaza (M-26)
P.O. Box 1988
Santa Ana, California 92702
Attention: Housing Manager
18
With a copy to: Office of the City Attorney
City of Santa Ana
20 Civic Center Plaza, 7th Floor (M-29)
Santa Ana, California 92702
If to Developer: Santa Ana Pacific Associates, A California Limited Partnership
Santa Ana Pacific Associates II, A California Limited Partnership
430 E. State Street, Suite 100
Eagle, Idaho 83616
With a copy to: BCP/First Point I, LLC
BCP/First Point Il, LLC
c/o Boston Capital Partners
One Boston Place, 21" Floor
Boston, MA 02108
Attention: Asset Management (First Point Apartments)
9.3.2 Change of Address. Either Party may, by notice given at any time, require
subsequent notices to be given to another person or entity, whether a party or an officer or
representative of a party, or to a different address, or both. Notices given before actual receipt of
notice of change shall not be invalidated by the change.
9.4 Severability. If any tern, provision, covenant or condition of this Agreement shall
be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected
thereby to the extent such remaining provisions are not rendered impractical to perform, taking
into consideration the purposes of this Agreement.
9.5 Interpretation and Governing Law. This Agreement and any dispute hereunder
shall be governed and interpreted in accordance with the laws of the State of California without
regard to conflict of law principles. This Agreement shall be construed as a whole according to
its fair language and common meaning to achieve the objectives and purposes of the Parties hereto,
and the rule of construction to the effect that ambiguities are to be resolved against the drafting
Party shall not be employed in interpreting this Agreement, all Parties having been represented by
counsel in the negotiation and preparation hereof.
9.6 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
9.7 Singular and Plural. As used herein, the singular of any word includes the plural,
and vice versa, as context so dictates. Masculine, feminine, and neuter forms of any word include
the other as context so dictates.
9.8 Joint and Several Obligations. If at any time during the term of this Agreement the
Property and/or Project is owned, in whole or in part, by more than one Developer, all obligations
19
of such Developer under this Agreement shall be joint and several, and the default of any such
Developer shall be the default of all such Developers.
9.9 Time of Essence. Time is of the essence in the performance of the provisions of
this Agreement as to which time is an element.
9.10 Computation of Das. Unless otherwise specified in this Agreement or any Exhibit
attached hereto, use of the term "days" shall mean calendar days. For purposes of this Agreement
and all Exhibits attached hereto, "business days" shall mean every day of the week except
Saturdays, Sundays, official State holidays as recognized in Government Code Section 19853(a)
or successor statute, and any days in which Santa Ana City Hall is closed for business.
9.11 Waiver. Failure by a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon
the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand
strict compliance by the other Party with the terms of this Agreement thereafter.
9.12 Non -Discrimination. In performing its obligations under this Agreement,
Developer shall not discriminate because of race, color, creed, religion, sex, marital status, sexual
orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable
law, in the recruitment, selection, training, utilization, promotion, termination or other related
activities. Developer affirms that it is an equal opportunity employer and shall comply with all
applicable federal, state and local laws and regulations.
9.13 Third Party Beneficiaries. No person or entity, other than City and Developer shall
have any right of action based upon any provision of this Agreement.
9.14 Force Maieure. Neither Party shall be deemed to be in default where failure or
delay in performance of any of its obligations under this Agreement is caused by floods,
earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor
difficulties beyond the Party's control (including the Party's employment force), court actions (such
as restraining orders or injunctions), or other causes beyond the Party's control, including delays
by any governmental entity (although the City may not benefit from this provision for a delay that
results from City's failure to perform its obligations under this Agreement), or an insurance
company of either party. If any such events shall occur, the term of this Agreement and the time
for performance by either Party of any of its obligations hereunder may be extended by the written
agreement of the Parties for the period of time that such events prevented such performance.
9.15 Mutual Covenants. The covenants contained herein are mutual covenants and also
constitute conditions to the concurrent or subsequent performance by the Party benefited thereby
of the covenants to be performed hereunder by such benefited Party.
9.16 Successors in Interest. The burdens of this Agreement shall be binding upon, and
the benefits of this Agreement shall inure to, all permitted successors in interest to the Parties to
this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and
constitute covenants running with the land. Each covenant to do or refrain from doing some act
20
hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon
every portion of the Property; (b) nuls with the Property and each portion thereof; and (c) is binding
upon each Party and each successor in interest approved pursuant to this Agreement during
ownership of the Property or any portion thereof.
9.17 Comiterparts. This Agreement may be executed by the Parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the Parties had
executed the same instrument.
9.18 Jurisdiction and Venue. Any action at law or in equity under this Agreement or
brought by a Party hereto for the purpose of enforcing, construing or determining the validity of
any provision of this Agreement shall be filed and tried in the Superior Court of the County of
Orange, State of California, and the Parties hereto waive all provisions of law providing for the
filing, removal or change of venue to any other court.
9.19 Proiect as a Private Undertaking. It is specifically understood and agreed by and
between the Parties hereto that the development of the Project is a private development, that neither
Party is acting as the agent of the other in any respect hereunder, and that each Party is an
independent contracting entity with respect to the teens, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between City and Developer is that of a government entity
regulating the development of private property and the Developer of such property.
9.20 Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the performance
of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either Party at any time, the other Party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such required instruments
and writings and take any actions as may be reasonably necessary under the terns of this
Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or
consummate the transactions contemplated by this Agreement. City hereby authorizes City
Manager to take such other actions and negotiate and execute any additional agreements as may
be necessary or proper to fulfill the City's obligations under this Agreement. The City Manager
may delegate her or his powers and duties under this Agreement to an authorized management
level employee of the City.
9.21 Estoppel Certificate. Within ten (10) business days following a written request by
any of the Parties, the other Party shall execute and deliver to the requesting Party a statement
certifying that (i) either this Agreement is unmodified and in full force and effect or there have
been specified (date and nature) modifications to the Agreement, but it remains in full force and
effect as modified; and (ii) either there are no known current uncured defaults under this
Agreement or that the responding Party alleges that specified (date and nature) defaults exist. The
statement shall also provide any other reasonable information requested. The failure to timely
deliver this statement shall constitute a conclusive presumption that this Agreement is in full force
and effect without modification, except as may be represented by the requesting Party, and that
21
there are no uncured defaults in the performance of the requesting Party, except as may be
represented by the requesting Party.
9.22 No Subordination. City's approval of the necessary land use entitlements that
authorize Developer to develop, operate, and maintain the Project was based upon Developer's
obligation to provide the Affordable Units pursuant to the State Density Bonus Law, City Density
Bonus Law, City Housing Opportunity Ordinance, and the terms and conditions of this Agreement.
For the Term of the Density Bonus Housing Agreement, this Agreement shall have priority over
any and all mortgages, deeds of trust, and other similar forms of secured financing recorded against
the Property or any portion thereof. Developer expressly understands and acknowledges that state
law requires preservation of affordability covenants in connection with the approval of this density
bonus project.
9.23 Attorneys' Fees and Costs. If either Party to this Agreement commences an action
against the other Party to this Agreement arising out of or in connection with this Agreement, the
prevailing Party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs
of investigation, and costs of suit from the losing Party.
9.24 Authority to Execute. The person or persons executing this Agreement on behalf
of each Party warrants and represents that he or she/they have the authority to execute this
Agreement on behalf of his or her/their corporation, partnership or business entity and warrants
and represents that he or she/they has/have the authority to bind the Party to the performance of its
obligations hereunder.
{Signatures on following page}
22
IN WITNESS WHEREOF, the parties hereto have caused this Density Bonus Housing
Agreement to be executed on the date set forth at the beginning of this Agreement.
ATTEST:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM
Sonia R. Carvalho
FOR APPROVAL:
Steven A. Mendoza
Executive Director
Community Development Agency
CITY OF SANTA ANA
Kristine Ridge
City Manager
SANTA ANA PACIFIC ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP
t--
CaIjb Roope
TPC Holdings VI, LLC
General Partner
ANA PACIFIC ASSOCIATES II, A CALIFORNIA LIMITED PARTNERSHIP
C eb Roope
T C Holdings VI, LLC
General Partner
23
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document, to which this certificate
is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Orange )
On March 9, 2020 before me Yesenia Cruz, Notary Public
(insert name and title of the officer)
personally appeared Kristine Rid a who proved to me on the basis of satisfactory evidence to be
the person�o whose namekes is / e subscribed to the within instrument and acknowledged to me
that Wlshe/tWy executed the same in %/her/t)Z1r authorized capacity0e< and that by �her/tl - r
signatureKon the instrument the persor�, or the entity upon behalf of which the person 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. YESEN�ACRUZ
�eia Notary Public - ca0fornia
Orange County
Commission # 2243542
My Comm. Expires May 21, 2022
_ i 1.
1;. .10.T .5. n. �a ..�.. .H .}A..
Y�..� �.
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
STATE OF Gt h 0 )
SS
COUNTY OF _ )
On this J day of—_� MU, before me, K 0 t l t t 1-eiV1 , Notary Public,
personally appeared (Mql �Q, , who proved to me on the basis of satisfactory
evidence to be the person(s) whose names) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of that
the foregoing is true and correct.
my hand and official seal.
V
(Si
Name:
e) � =NOTARY
899
Name:jl� Q vt I
NOTARY PUBLIC SealIC
O
S 07/08/2021
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
STATE OF )
SS
COUNTY OF /W1 )
On this M day of W U before me, Vot Q lylYM Notary Public,
personally appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose ame(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of U D that
the foregoing is true and correct.
hand and official seal.
Name: — J�
NOTARY
=CONOTARYPUBLIC
EN
[Seal]65899
LICAHOES 07/OB/2021
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
24
Exhibit A
Legal Description
All that real property situated in the City of Santa Ana, County of Orange, State of California
and more particularly described as follows:
PARCELI:
THAT CERTAIN PARCEL OF LAND, LOCATED AT 16812 EAST FIRST STREET, SANTA
ANA, CALIFORNIA, WHICH PROPERTY IS MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF LOT "D" OF THE STAFFORD AND
TUSTIN TRACT, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 2, PAGES 618 THROUGH 619,
OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, THENCE WEST ALONG
THE SOUTH SIDE OF FIRST STREET, 417.75 FEET OF A POINT; THENCE SOUTH
733.36 FEET TO A POINT; THENCE EAST 417.75 FEET TO THE EAST LINE OF SAID
LOT "D"; AND THENCE NORTH 733.36 FEET TO THE POINT OF BEGINNING.
EXCEPT THEREFROM THE NORTHERN NINETEEN (19.00) FEET, AS CONVEYED TO
THE CITY OF SANTA ANA, A MUNICIPAL CORPORATION, IN A DOCUMENT
RECORDED DECEMBER 22, 1965 AS INSTRUMENT NO. 16905, IN BOOK 7781, PAGE
486 OFFICIAL RECORDS.
NOTE: SAID LAND IS ALSO SHOWN ON A RECORD OF SURVEY, FILED ON JULY 13,
1964 IN BOOK 74, PAGE 3 OF RECORD OF SURVEYS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
1_17\ZNMM
A DRAINAGE EASEMENT FOR DISCHARGING WATER FROM THE EAST 417.75 FEET
OF THE NORTH 733.36 FEET OF LOT "D" OF THE STAFFORD AND TUSTIN TRACT AS
PER MAP THEREOF RECORDED IN BOOK 2, PAGES 618 AND 619 OF
MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, BY MEANS
OF UNDERGROUND PIPELINES, WITH THE RIGHT TO LAY, PLACE, USE, MAINTAIN,
ALTER, ADD TO, REPAIR, REPLACE AND/OR REMOVE SAID PIPELINES, ALONG THE
FOLLOWING DESCRIBED REAL PROPERTY:
PARCEL (A):
THE SOUTH FIVE (5.00) FEET OF THAT CERTAIN REAL PROPERTY IN THE RANCHO
SANTIAGO DE SANTA ANA, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA,
DESCRIBED AS: COMMENCING AT THE NORTHWEST CORNER OF LOT "D" OF THE
STAFFORD AND TUSTIN TRACT AS PER MAP RECORDED IN BOOK 2, PAGE 618 OF
MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA; THENCE
EAST ON THE NORTH LINE OF SAID LOT "D" 225.75 FEET TO A POINT, A STONE
A-1
OVER A BRICK BEING SET IN THE GROUND 3 INCHES EAST OF SAID POINT;
THENCE SOUTH 733.36 FEET TO A POINT, A STONE SET OVER A BRICK BEING SET
IN THE GROUND 3 INCHES WEST OF SAID POINT; THENCE WEST 225.75 FEET TO
THE WEST LINE OF SAID LOT "D"; THENCE NORTH 733.36 FEET TO THE POINT OF
BEGINNING.
PARCEL (B):
THE WEST SIX (6.00) FEET OF THAT CERTAIN REAL PROPERTY IN THE RANCHO
SANTIAGO DE SANTA ANA, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA.,
DESCRIBED AS: A PORTION OF THE SOUTH HALF OF LOT "D" OF THE STAFFORD
AND TUSTIN TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 2, PAGES 618 AND
619, MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTH LINE OF THE COUNTY ROAD KNOWN AS
MAIN STREET, SAID POINT BEING ALSO THE SOUTHEAST CORNER OF SAID LOT
"D"; THENCE NORTH ALONG THE EASTERLY LINE OF SAID LOT "D", 501.13 FEET;
THENCE WEST 9.75 CHAINS TO THE WEST LINE OF SAID LOT "D'; THENCE SOUTH
501.5 FEET TO THE NORTH LINE OF MAIN STREET; THENCE EAST 9.75 CHAINS TO
THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION OF SAID LAND DESCRIBED IN A
DOCUMENT TO LEROY G. CONNELLY AND WIFE, RECORDED DECEMBER 3, 1954,
IN BOOK 2887, PAGE 120, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION OF SAID LAND DESCRIBED IN A
DOCUMENT TO THE STATE OF CALIFORNIA, RECORDED NOVEMBER 17, 1955, IN
BOOK 3285, PAGE 542, OFFICIAL RECORDS.
APN: 402-191-01, 402-191-02, 402-191-04
A-2
TENANT VERIFICATION
EXHIBIT B
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing Annual
Income in accordance with the method set forth in the Department of Housing and Urban Project
("HUD") Regulations (24 CFR 813). You should make certain that this form is ate all times up to date
with the HUD Regulations.
Re:
Santa Ana, California
I/ We, the undersigned state that I/we have read and answered fully, frankly and personally
each of the following questions for all persons who are to occupy the unit being applied for in the
above apartment project. Listed below are the names of all persons who intend to reside in the urut:
1. 2. 3. 4.
Name of Members Relationship
of the to Head of Social Security
Household Household Age Number
HEAD
SPOUSE
Income Computation
5.
Place of
Employment
6. The total anticipated income, calculated in accordance with the provisions of this
Certification, of all persons over the age of 18 years listed above for the 12-month period
beginning the date that I/we plan to move into a unit is $
Included in the total anticipated income listed above are:
(a) all wages and salaries, overtime pay, commissions, fees, tips and bonuses and other
compensation for personal services, before payroll deductions;
(b) the net income from the operation of a business or profession or from the rental of real or
personal property (without deducting expenditures for business expansion or amortization of capital
indebtedness or any allowance for depreciation of capital assets),
(c) interest and dividends (including income from assets excluded below);
(d) the full amount of periodic payments received from social security, annuities, insurance
policies, retirement funds, pensions, disability or death benefits and other similar types of periodic
receipts, including any lump sum payment for the delayed start of a periodic payment;
lI
(e) payments in lieu of earnings, such as unemployment and disability compensation,
workmen s compensation and severance pay;
(f) the maximum amount of public assistance available to the above persons other than the
amount of any assistance specifically designated for shelter and utilities;
(g) periodic and determinable allowances, such as alimony and child support payments and
regular contributions and gifts received from persons not residing in the dwelling;
(h) all regular pay, special pay and allowances of a member of the Armed Forces (whether or
not living in the dwelling) who is the head of the household or spouse; and
(i) any earned income tax credit to the extent that it exceeds income tax liability.
Excluded from such anticipated income are:
(a) casual, sporadic or irregular gifts;
(b) amounts which are specifically for or in reimbursement of medical expenses;
(c) lump sum additions to family assets, such as inheritances, insurance payments (including
payments under health and accident insurance and workmen s compensation), capital gains and
settlement for personal or property losses;
(d) amounts of educational scholarships paid directly to the student or the educational
institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition,
fees, books and equipment. Any amounts of such scholarships or payments to veterans not used for
the above purposes are to be included in income;
(e) special pay to a household member who is away from home and exposed to hostile fire;
(f) relocation payments under Title II of the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970;
(g) foster child care payments;
(h) the value of coupon allotments for the purchase of food pursuant to the Food Stamp Act
of 1977;
(i) payments to volunteers under the Domestic Volunteer Service Act of 1973;
0) payments received under the Alaska Native Claims Settlement Act;
(k) income derived from certain submarginal land of the United States that is held in
trust for certain Indian tribes;
(1) payments or allowances made under the Department of Iealth and Human Services Low -
Income Home Energy Assistance Program;
M.
(m) payments received from the Job Training Partnership Act;
(n) income derived from the disposition of funds of the Grand River Band of Ottawa Indians;
(o) the first $2,000.00 of per capita shares received from judgment funds awarded by the
Indian Claims Commission or the Court of Claims; and
(p) at the discretion of Housing Authority of the City of Santa Ana all other income
exclusions recognized by the HUD Section 8 Certificate and Voucher Programs.
7. Do the persons whose income or contributions are included in item 6 above:
(a) have savings, stocks, bonds, equity in real property or other form of capital investment
(excluding the values of necessary items of personal property such as furniture and automobiles and
interests in Indian trust land)?
No Yes
(b) have they disposed of any assets (other than at a foreclosure or Credit Bankruptcy sale)
during the last two years at less than fair market value?
No Yes
(c) If the answer to (a) or (b) above is yes, does the combined total value of all such assets
owned or disposed of by all such persons total more than $5,000?
No Yes
(d) If the answer to (c) above is yes, state:
(1) the amount of income expected to be derived from such assets in the 12-month period
beginning on the date of initial occupancy in the unit that you propose to rent:
(2) the amount of such income, if any, that was included in item 6 above:
8. (a) Are all of the individuals who propose to reside in the unit full-time students*?
No Yes
*A full-time student is an individual enrolled as a full-time student during each of 5
calendar months during the calendar year in which occupancy of the unit begins at an
educational organization which normally maintains a regular faculty and curriculum and
normally has a regularly enrolled body of students in attendance and is not an individual
pursuing a full-time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political subdivision
thereof.
I: C
(b) If the answer to 8(a) is yes, is at least 1 of the proposed occupants of the unit a husband
and wife entitled to file a joint federal income tax return?
No Yes
9. Neither myself nor any other occupant of the unit I/we propose to rent is the owner of the
rental housing project in which the unit is located (hereinafter the "Owner"), has any family
relationship to the Owner; or owns directly or indirectly any interest in the Owner. For purposes of
this paragraph, indirect ownership by an individual shall mean ownership by a family member,
ownership by a corporation, partnership, estate or trust in proportion to the ownership or beneficial
interest in such corporation, partnership, estate or trustee held by the individual or a family member;
and ownership, direct or indirect by a partner of the individual.
10. This certificate is made with the knowledge that it will be relied upon by the Borrower to
determine maximum income for eligibility to occupy the unit, and I/we declare that all information
set forth herein is true, correct and complete and based upon information I/we deem reliable and
that the statement of total anticipated income contained in paragraph 6 is reasonable and based upon
such investigation as the undersigned deemed necessary.
11. I/we will assist the Owner in obtaining any information or documents required to verify
the statements made herein, including either an income verification from my/our present
employer(s) or copies of federal tax returns for the immediately preceding calendar year.
12. I/we acknowledge that I/we have been advised that the making of any misrepresentation
or misstatement in this declaration will constitute a material breach of my/our agreement with the
Owner to lease the unit and will entitle the Owner to prevent or terminate my/our occupancy of the
unit by institution of an action for ejection or other appropriate proceedings.
I/we declare under penalty of perjury that the foregoing is true and correct.
Executed this day of in the City of California.
Applicant
Applicant
[Signature of all persons over the age of 18 years listed in number 2 above required]
FOR COMPLETION BY APARTMENT OWNER ONLY:
1. calculation of eligible income:
a. Enter amount entered for entire
household in 6 above: $
b. (1) If answer to 7(c) above is yes, enter the total amount entered in
7(d)(1), subtract from that figure the amount entered in 7(d)(2) and enter the
remaining balance ($ );
(2) Multiply the amount entered in 7(c) times the current passbook
savings rate to determine what the total annual earnings on the amount in
7(c) would be if invested in passbook savings ($ ), subtract from that
figure the amount entered in 7(d)(2) and enter the remaining balance
(3) Enter at right the greater of the amount calculated under (1) or (2)
above: $
C. TOTAL ELIGIBLE INCOME
Line La plus line 1.b(3)): $
2. The amount entered in 1.c:
Qualifies the applicant(s) as a Low Income Tenant(s).
Does not qualify the applicant(s) as a Low Income Tenant(s).
3. Number of apartment unit assigned:
Bedroom Size: Rent: $
4. This apartment unit [was/was not] last occupied for a period of 31 consecutive days by
persons whose aggregate anticipated annual income as certified in the above manner upon their
initial occupancy of the apartment unit qualified them as Low Income Tenants.
5. Method used to verify applicant(s) income:
Employer income verification.
Copies of tax returns.
Other
Manager
INCOME VERIFICATION
(for employed persons)
The undersigned employee has applied for a rental unit located in a project financed under
the Housing Authority of the City of Santa Ana Multifamily Housing Revenue Bond Program for
persons of low income. Every income statement of a prospective tenant must be stringently verified.
Please indicate below the employee's current annual income from wages, overtime, bonuses,
commissions or any other form of compensation received on a regular basis.
Annual wages Overtime Bonuses
Commissions
Total current income
I hereby certify that the statements above are true and complete to the best of my knowledge.
Signature
Date
Title
I hereby grant you permission to disclose my income to in order that they may
determine my income eligibility for rental of an apartment located in their project which has been
financed under the Housing Authority of the City of Santa Ana Multifamily Revenue Bonds.
Signature
Please sent to:
Date
INCOME VERIFICATION
(for self-employed persons)
I hereby attache copies of my individual federal and state income tax returns for the
immediately preceding calendar year and certify that the information shown in such income tax
returns is true and complete to the best of my knowledge.
Signature
Date
hm