HomeMy WebLinkAboutBRANDYWINE ACQUISITION GROUP, LLCI°)
RECORDING REQUESTED BY: Recorded in Official Records, Orange County
AND WHEN RECORDED MAIL TO: Hugh Nguyen, Clerk -Recorder
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City of
Council
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Clerk of the Council 20220002812081:54 pm 08/17/22
20 Civic Center Plaza (M-30) 363 414A Al 39
P.O. Box 1988 Santa Ana California 92702 0.00 0.00 0.00 0.00 114.00 0.00 0.000.000.00 0.00
N Attention: Clerk of the Council
0
INSURANKE NOT REQUIRED
WORK MAY PROCEED Free Recordingpnrsnant to
CD I CLERK OF COUNCIL Government Code 27383 DATE: DENSITY BONUS HOUSING AGREEMENT A-2022-161
This DNSITY BONUS HOUSING AGREEMENT ("Agreement"), made and entered
(o) ppinto this J ay of August, 2022, by and between the City of Santa Ana, a charter city and
�lU�d a Snaw1 municipalcorporation of the State of California ("City"), and Brandywine Acquisition Group,
LLC ("Developer"). City and Developer are sometimes referred to collectively as the "Parties"
and individually as a "Party."
RECITALS
A. Developer entered or is entering into a purchase contract with David A Colton
Trust ("Property Owner"), pursuant to which the Property Owner is selling to Developer that
certain property located within the City of Santa Ana, County of Orange, State of California,
commonly known as 1814 & 1818 East First Street, Santa Ana, California, 92705, 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 two vacant parcels with 35 single-family
attached townhomes, six (6) of which are proposed as Live/Work units, and four (4) as moderate -
income affordable units, on the Property, as more particularly set forth in Density Bonus
Agreement Application No. 2022-02 ("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 and incentives,
concessions, and waivers to property owners or developers 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. The Project is proposing a total number of thirty-five (35) single-family attached
townhomes, six (6) of which are proposed as Live/Work units, and four (4) as moderate -income
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affordable units. The Project will provide eighty (80) onsite parking spaces. No parking concession
is requested or provided.
E. The Project complies with the affordable housing requirements set forth in the State
Density Bonus Law and City Density Bonus for Affordable Housing. For purposes of this
Agreement, the Project shall be the "housing development" as defined in the State Density Bonus
Law.
F. In light of the purpose of the State Density Bonus Law and City Density Bonus for
Affordable Housing, and the express provisions of Government Code Section 65915(d)(2)(A), the
City has determined to grant Developer's application for one concession.
G. This Agreement, and the exhibits attached hereto and incorporated herein by
reference, are 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
concession set forth herein.
NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein
by this reference, and of the mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
DEFINITIONS AND EXHIBITS
1.1 Definitions. In addition to the terms that may be defined elsewhere in this
Agreement, the following terms when used in this Agreement shall be defined as follows:
1.1.1 "Affordability Restrictions" means, pursuant to California Government
Code Section 65915(c)(2)(A)(ii)(III), restrictions on the sale and conveyance of the Property that
ensure that the Property will be preserved for moderate- income housing for at least 55 years for
owner -occupied housing units and will be sold or resold only to persons or families of very low,
low, or moderate income, as defined in Section 50052.5 of the California Health and Safety Code.
1.1.2 "Affordable Units" means four (4) units, which shall be comprised of four
(4) three -bedroom units for Moderate -Income Households. Any change to the number or
distribution of Affordable Units is subject to City Manager approval.
1.1.3 "Agreement" means this Density Bonus Housing Agreement.
1.1.4 "City" means the City of Santa Ana, California
1.1.5 "City Council" means the City Council of the City of Santa Ana.
1.1.6 "City Attorney" means the City Attorney for the City of Santa Ana.
1.1.7 "City Manager" means the City Manager for the City of Santa Ana.
1.1.8 "City's Planning Commission" means the Planning Commission for the
City of Santa Ana.
1.1.9 "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 below.
1.1.10 "Developer" means Brandywine Acquisition Group, LLC and its permitted
successors and assigns to all or any part of the Property, Project or this Agreement.
1.1.11 "Effective Date" means the date the 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, pursuant to section 4.1 herein.
1.1.12 "Eligible Household" means a Household whose income does not exceed
the "Moderate -Income" qualifying limit as defined herein.
1.1.13 "Household" means all persons residing in a Unit.
1.1.14 "Moderate -Income" means persons and families whose income does not
exceed the limits provided in California Health and Safety Code Section 50052.5.
1.1.15 "Project" means that certain residential development as more particularly
described in Recital B and Section 2 of this Agreement.
1.1.16 "Property" means that certain real property more particularly described in
the legal description in Exhibit A and improvements thereon.
1.1.17 "State Density Bonus Law" means Government Code sections 65915, et
seq., as they exist on the Effective Date.
1.1.18 "Unit" means a residential dwelling unit within the Project to be
constructed or caused to be constructed by Developer pursuant to this Agreement.
1.1.19 "Unrestricted Units" means the Units within the Project to be constructed
or caused to be constructed by Developer to a Household without restriction.
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 — Income Verification Form
1.2.3 Exhibit C —Notice of Affordability Restrictions on Transfer of Property
2. DEVELOPMENT OF THE PROPERTY
2.1 Project. Developer shall develop or cause the development of the Property as
thirty-five (35) single-family attached townhomes, six (6) of which are proposed as Live/Work
units, and four (4) as Moderate -Income Affordable Units.
2.2 Density Bonus. The Project Units are allowed under the City's Metro East Mixed
Use Zone and General Plan. Therefore, no density bonus is required or provided.
2.3 Development Concessions, Incentives. and Waivers. As set forth in the City
entitlements, Developer petitioned for and is hereby granted the following concessions, incentives,
and waivers as part of the approval of Density Bonus Application No. 2022-02 for the Project:
2.3.1 Publicly accessible open space shall be reduced from fifteen percent (15%)
of total lot area as required by the Metro East Mixed Use (MEMU) Overlay Zone to no less than
five percent (5%) of total lot area in accordance with Government Code Section 65915(d)(2)(A).
2.4 No Further Concessions, Incentives, or Waivers. Developer acknowledges and
agrees that the concessions, incentives, and waivers set forth in section 2.3 above fully satisfies
any duty City may have under the City Density Bonus for Affordable Housing, the Density Bonus
Law, or any other law or regulation to provide any density bonus incentive or to waive any
building, zoning, or other requirement in connection with a density bonus. 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 the City Density Bonus for Affordable Housing and the Density Bonus Law applicable
to the Project.
2.5 Unrestricted Units. The Project, for purposes of this Agreement, may have no more
than thirty-one (31) Unrestricted Units comprised of thirty-one (31) three -bedroom units.
2.6 Affordable Units. The Project, for purposes of this Agreement, shall have no less
than thirty-five (35) single-family attached townhomes, six (6) of which are proposed as
Live/Work units, and four (4) designated as Moderate -Income Affordable Units pursuant to the
terms and conditions of this Agreement. The Affordable Units shall be consistent with all
applicable City approvals.
2.7 Minimum Development Standards for Affordable Units. The Affordable Units
shall be constructed in accordance with all applicable City approvals.
2.8 Permits and Processing; Compliance with Laws. Developer, at its sole cost and
expense, or as otherwise set forth in a separate written agreement, shall secure or cause to be
secured any and all permits that may be required for development of the Project by City or any
other federal, state, or local governmental entity with jurisdiction over the Property or Project.
Upon securing any and all required permits, and all necessary financing and property interests,
Developer shall carry out and perform the development of the Project or cause the performance of
the development of the Project, in conformity with all applicable federal, state, and local laws and
A-2022-161
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 and
Developer shall meet and confer to address amendments and revisions to this Agreement as
necessary.
2.9 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 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 for relocation
assistance, benefits and costs prior to the completion of the development of the Project.
2.10 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 a building permit,
Developer shall develop and submit or cause the development and submittal to the Community
Development Agency (the "CDA") a local sourcing plan for the Project targeting, to the extent
commercially reasonable, 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, conditioned or delayed) and be implemented
for the construction of the project prior to issuance of a building permit.
2.11 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 caused by, at the
direction of, or on behalf of 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 caused by, at the direction
of, or on behalf of, Developer.
AFFORDABILITY
3.1 Total Affordability Term. Pursuant to Santa Ana Municipal Code Section 41-
1906(e)(1), 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 Tenn"). The Total
Affordability Term for an Affordable Unit shall commence on the date that the building in which
the Affordable Unit is located receives all required occupancy permits from the City.
3.2 Memorializing Commencement of Total Affordability erm_. Developer shall keep
or cause to be kept detailed records of the commencement date of the Total Affordability Tenn for
each Affordable Unit. City shall have the right to review and verify said records without a fee
from City to Developer to ensure that the commencement date specified by Developer for an
Affordable Unit coincides with the date that the initial 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 Term 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 Moderate -Income Households. Subject to the terms of Section 5, Developer
covenants that no less than four (4) Affordable Units in the Project shall at all times during the
Density Bonus Housing Agreement Term be sold or conveyed to, or preserved for Moderate -
Income Households, and will be sold or resold onto to Moderate -Income Households.
4. OPERATION OF THE PROJECT BY DEVELOPER
4.1 Payment of Density Bonus Setup Fee. Prior to the Effective Date, Developer
delivered payment to City of the required density bonus setup fee in the amount of one -eighth
(1/81h) of one percent (1%) of the total estimated construction budget for the Project.
4.2 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. The date of recording of the Agreement
shall be the Effective Date of the Agreement. Upon the date of recording, the terms 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 and City Density Bonus Law, and to ensure the continued supply of Affordable Units in the
Project, except as expressly set forth in this Agreement.
4.2 Sale 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 sell or convey
each Affordable Unit for the Total Affordability Term for such Affordable Unit in accordance with
the terms and conditions set forth in this Agreement, which provide among other terms and
conditions for the sale or resale of each Affordable Unit to an Eligible Household for the Total
Affordability Term.
4.3 Location of Affordable Units. During the Density Bonus Housing Agreement
Term, the Affordable Units shall be dispersed throughout the Project in accordance with the terms
and conditions set forth in this Agreement.
4.4 Reserved.
4.5 Use of the Property. All uses conducted on the Property by Developer, 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 a mixed -use townhome complex. 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 Units at the Project.
4.6 Maintenance. Developer 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, to the extent commercially reasonable. City, and any of its employees,
agents, contractors or designees shall have the right to enter upon the Property at reasonable times
following not less than -forty-eight (48) hours' prior written notice 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 seven (7) days after
written notice from City with respect to debris and waste material, or within thirty (30) days after
written notice from City with respect to general maintenance, landscaping and building
improvements, unless Developer has initiated corrections and City has agreed to a reasonable
amount of time to complete corrections, 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. Notwithstanding the foregoing, City
acknowledges and agrees that the priority of any such lien shall be deemed to be the date such lien
is filed, and not the date this Agreement is recorded.
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 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 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 terms shall not assign its ownership interest in the Property or any
interest in any lease, sublease, license or sublicense, except as set forth herein or 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 (provided, however, that City acknowledges and
agrees that the priority of any such lien shall be deemed to be the date such lien is filed,
and not the date this Agreement is recorded); and,
(h) The execution and recordation of the maintenance agreement shall be a
condition precedent to the issuance of the Certification of Occupancy.
4.7 Management Plan. Prior to Certificate of Occupancy, Developer shall submit for
the reasonable approval of City a "Management Plan" which sets forth in detail the property
management duties, a purchaser selection process in accordance with this Agreement, a security
system (comprised of security cameras with audio voice down capability) and crime prevention
program, the rules and regulations for the Property and manner of enforcement, an operating
budget, the identity and emergency contact information of the professional property management
company to be contracted with to provide property management services at the Property
("Property Management Company"), and other matters relevant to the management of the
Property. The Management Plan shall require Developer to adhere to a fair sale 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 Management Company is deficient
based upon the standards set forth in the approved Management Plan and in this Agreement, City
shall provide written notice to Developer of such deficiencies and Developer shall use
commercially reasonable efforts to correct such deficiencies. In the event that such deficiencies
have not been cured within thirty (30) days, or, if cure is not reasonably possible within 30 days,
then unless actions to commence a cure are taken within 30 days and continued thereafter with
diligence, City shall have the right to require Developer to immediately remove and replace the
Property Management Company with another property management 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. Developer agrees to give
City notice of the proposed replacement Property Management Company. Such proposed
replacement Property Management Company shall be subject to the City's approval (with such
approval not to be unreasonably withheld, conditioned or delayed).
4.8 Reserved.
4.9 Selection of Purchasers.
4.9.1 Developer shall review the selection of purchasers for the Affordable Units
in compliance with lawful and reasonable criteria and the requirements of this Agreement. Each
Affordable Unit shall be sold to Eligible Households.
4.9.2 Local preference for Santa Ana residents and workers in purchaser selection
for the Affordable Units 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 or cause for the preference in selling the
Affordable Units to households that live and/or work in the City of Santa Ana..
4.9.3 Prior to the sale of an Affordable Unit, Developer shall require the purchaser
or cause for the purchaser to be required to complete an Income Verification Form (in substantially
the form attached hereto as Exhibit B) certifying that the purchaser buying the Affordable Unit is
an Eligible Household and otherwise meet(s) the eligibility requirements established for the
Affordable Unit. Developer shall verify the income of the purchaser as set forth herein. Developer
and City shall be entitled to rely on the Income Verification Form and supporting documentation
provided by purchaser unless Developer or City has knowledge of, or a reasonable basis for belief
as to, the inaccuracy or falsehood of any of the supporting documentation.
4.10 Income Verification and Certification.
Developer shall be entitled to rely on the Income Verification Form and supporting
documentation provided by purchasers unless Developer has knowledge of, or a reasonable basis
for belief as to, the inaccuracy or falsehood of any of the supporting documentation. Developer
shall make reasonable efforts to verify or cause to be verified that the income and asset statement
provided by an applicant in an income certification is accurate by taking, at a minimum, 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 purchasers 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.
4.10.1 Gross Household Income. Gross household income means all income from
whatever source from all adult Household members, which is anticipated to be received during the
12-month period following the date of the determination of Gross Household Income. The
applicable sources of income are defined in California Code of Regulations Title 25 Housing and
Community Development Section 6914.
4.11 Reserved.
4.12 Notice of Affordability Restrictions on Transfer of Property. In the event of the
sale or resale of an Affordable Unit during the Total Affordability Term, the City and the transferor
shall execute and deposit into escrow, or record against the Affordable Unit, a Notice of
Affordability Restrictions on Transfer of the Property as contained herein (Exhibit Q. The sale or
transfer of the Property, shall not be effective unless and until the City and the transferee execute
the documents necessary to transfer the Density Bonus Agreement obligations from the transferor
to the transferee.
4.13 Reserved.
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 20 t 6 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 treasures. Prior to the meeting, the energy analyst shall complete an initial
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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 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. 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
4.17 Reserved.
4.18 Onsite Parking Management Plan. Developer has agreed to provide eighty (80) onsite
parking stalls for residents and visitors of the Project and actively monitor the parking demand of
the Project site. Developer shall continually monitor and take commercially reasonable 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
or finalizing of building permits, Developer shall submit and obtain approval from the Planning
and Building Agency of a Parking Management Plan (the "PMP") as per conditions of approval in
Site Plan Review No. 2022-03 and Tentative Tract Map No. 2022-02 to address the parking
demands of the Project. The approved PMP shall be adhered to and be enforced by the Project at
all times.
4.19 Marketing and Resident Selection Plan. Each Affordable Unit shall be sold 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 of a marketing
program and purchaser selection plan for the sale of the Affordable Units at the Project
("Marketing Program"). The sale of the Affordable 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. Upon request, Developer shall provide City with periodic reports
with respect to the sale of the Affordable Units.
4.19.1 The Marketing Program shall include, but is not limited to,
marketing and community outreach activities, proposed purchaser selection criteria,
income requirements, timeline and details for outreach and marketing. All requirements
set forth herein shall be incorporated in the Marketing Program.
5. RESERVED
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6. TERM OF THIS AGREEMENT
The term of this Agreement ("Density Bonus Housing Agreement Term") 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 building in which the Affordable Units are located,
pursuant to Santa Ana Municipal Code Section 41-1906(e)(1).
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 reasonably 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. 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. Notwithstanding anything to the contrary
contained in this Agreement, in no event shall either Party be liable for speculative, consequential,
punitive or other indirect damages, and each Party waives any right to collect speculative,
consequential, punitive or other indirect damages against 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, conditioned or delayed 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 negligence or willful misconduct of any of the Indemnitees.
8. ASSIGNMENT; COVENANTS RUN WITH THE LAND
8.1 Assignment by Developer.
8.1.1 Prohibited Transfers or Assignments. Except as authorized in this Section
or 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, in whole or
in part, without City's prior written approval, which shall not be unreasonably withheld,
conditioned or delayed ("Permitted Transfer"); provided, however, Developer shall have the right
12
without City's prior written approval to transfer or assign the Property, Project and/or Developer's
rights and obligations in this Agreement to any entity that is controlled by, or is under common
control with, Developer or Developer's managing general partner, including a Joint Venture
Ownership created between Developer and its investor, and Developer shall thereafter be released
from any future obligations under this Agreement. In connection with Permitted Transfer,
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 in its reasonable discretion 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 assignment of the Agreement by Developer
shall require the payment of fees or a deposit to pay for the City's actual, documented expenses to
review the request. Upon the delivery of the assignment and assumption agreement as provided
for above for a Permitted Transfer, or in the event of a sale of the Property/Project as provided for
in this Section 8.1.1, Developer shall be released from any future obligations under this
Agreement.
8.1.2 Sale of Property. Developer agrees and declares that the Property and the
Project shall be sold, used, occupied, operated, 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 Developer 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. Developer further understands and
agrees that the Density Bonus permit approvals received for this Project have been made on the
condition that Developer and all subsequent owners, or other successors and assigns of the
Property and/or Project purchase the Affordable Units in accordance with the terms and conditions
stipulated in Sections 4, 5 and 6 of this Agreement for a term of fifty-five (55) consecutive years
commencing upon the date of issuance of the last certificate of occupancy for the Project.
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 Assignments 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 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
13
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. 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 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 with respect to the density bonus
incentive and concession provided to the Project, 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, or through the City Manager as detailed herein, and signed on behalf of each Party. The
City Manager shall have the authority to make approvals, issue interpretations, execute documents,
waive provisions, and/or enter into amendments of this Agreement on behalf of City, including
but not limited to amendments to this Agreement for consistency with other Project agreements.
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, to pay for City's actual,
documented expenses to review the request. Each alteration, change, or modification to this
Agreement shall be recorded against the Property 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
14
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. All notices shall be
addressed as follows:
If to City: City of Santa Ana
Community Development Agency
20 Civic Center Plaza (M-26)
P.O. Box 1988
Santa Ana, California 92702
Attention: Housing Manager
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: During construction:
Brandywine Acquisition Group, LLC
16580 Aston
Irvine, CA 92606
Attention: Angela Meyer
Following construction:
Brandywine Acquisition Group, LLC
16580 Aston
Irvine, CA 92606
Attention: Angela Meyer
With copies to: Withee Malcom Architects, LLP
2251 West 190' Street
Torrance, CA 90504
Attention: Dirk Thelon
And to: David A Colton Trust
515 Cabrillo Park Drive 4305
Santa Ana, CA 92706
Attention: David Colton
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.
15
9.4 Severability. If any term, 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 Reserved.
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 ofDays. 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.
16
9.14 Force Majeure. 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, epidemics or pandemics as declared by federal, state, or local
emergency resolution, 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 reasonably 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
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) runs 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 Counterparts. 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 Project 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 terms, 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 in the satisfaction of the Project and conditions of this
17
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 terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or the Project
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 or amendments to this agreement as may be reasonably 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
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; Mortgagee Protection; Covenants Do Not Impair Liens. City's
approval of the necessary land use entitlements that authorize Developer to develop, operate, and
maintain the Project or to cause the development of the Project was based upon Developer's
obligation to provide the Affordable Units pursuant to the State Density Bonus Law, City Density
Bonus for Affordable Housing, 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. This Agreement shall not prevent or limit Developer, in Developer's reasonable
discretion, from encumbering the Property or any portion thereof of or any improvement thereon
by any mortgage, deed of trust or other security device securing financing with respect to the
Property or Project and such action shall not constitute an assignment of this Agreement. No
violation or breach of covenants, conditions, restrictions, provisions, or limitations contained in
this Agreement shall defeat or render invalid or diminish or in any way impair the lien or charge
of any mortgage or deed of trust or security instrument.
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
IV
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)
19
A-2022-161
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:
�ar Clerk of the Council
APPROVED AS TO FORM
Sonia R. Carvalho
FOR APPROVAL:
�_ / V L
Steven A. Mendoza
Executive Director
Community Development Agency
20
CITY OF SANTA ANA
Kristine Ridge
City Manager
BRANDYWINE ACQUISITION GROUP,
LLCC
9/a W i, 4-)
c/- 0
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 August 17, 2022 before me, Claudia M. Fernandez -Shaw, Notary Public
(insert name and title of the officer)
personally appeared Kristine Ridge
who proved to me on the basis of satisfactory evidence to be the person ) whose name
suby� abed to the within instrument and acknowled ed to me th /theyexecuted the same in
-WsAw.atheir'authorized capacity(ies , and that by~4eirsignaturew on the instrument the
personSR), or the entity upon behalf of which the person(37 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.
+ CLAUDIA M."RNANDE2-SNAW
hand and officials I. Notary Pubik•CalNornia
' = Orange County
Commission f 23aa591
V / My Comm. Expires Jan 25, 2025 r
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 August 17, 2022 before me, Claudia M. Fernandez -Shaw, Notary Public
(insert name and title of the officer)
personally appeared Steven A. Mendoza
who proved to me on the basis of satisfactory evidence to be the person( whose nameo),kf
subscribed to the within instrument and acknowledged to me thaQ/stae{they executed the same in
Zather/their authorized capacity4es), and that byjjEDtierftheir signatures) on the instrument the
persons), 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
CLAUDIA M. FERNANDEZ-SNAw ■
Notary Public - California l
''I Orange Countv
Commission i 2388597 —
"�,., My Comm. Expires Jan 25, 2026
By execution below, Property Owner consents to the recordation of this Agreement against its
fee interest in the Property:
Brandywine Acquisition Group, LLC
By: (�/' /tea
C! �
21
CALIFORNIA• • D:4t ;•
CUaaSL N N '!KNai. -- t 2 /R✓ai<!M aY S� C vti<lw<. .a%w .w< wN:ia a�
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
Count ofwe-
.J
On lq � before me,_1
Date
personally appeared
Name(s) of Signer(s)
Title of the
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
'• JOANNE E. MGIIARULO wITNESs my and official seal./
Notary Public - California \\
Orange County_
Commission N 2348373 Signature
Q A D My Comm. Expires Feb 22, 2025 Signature of Notary
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Document Date:
Number of Pages: Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner.— ❑ Limited ❑ General
❑ Individual [_.1 Attorney in Fact
❑ Trustee 1 Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
CI Partner — ❑ Limited ❑ General
11 Individual I I Attorney in Fact
EI Trustee I 1 Guardian or Conservator
❑ Other:
Signer Is Representing:
\�l'! �C q'e \qn'T c�Yq!tiA Nv a1a.. rl/ act
0 1 • � . � • • • • • • .11 • �' S11 S S 1
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
22
LEGAL DESCRIPTION
Real property in the City of Santa Ana, County of Orange, State of California, described as follows:
PARCEL 1:(APN: 402-211-02)
THE NORTH 289.0 FEET OF THE WEST 230.0 FEET OF LOT 2 OF TRACT NO. 24, IN THE CITY OF SANTA
ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, PER MAP RECORDED IN BOOK 9, PAGE 23 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM, THE NORTH 179.00 FEET OF THE WEST 140.00 FEET THEREOF,
ALSO EXCEPTING THEREFROM THAT PORTION OF LAND LYING SOUTHWESTERLY OF THE
NORTHEASTERLY LINE OF THAT CERTAIN PARCEL OF LAND AS DESCRIBED IN DEED TO THE STATE OF
CALIFORNIA, RECORDED DECEMBER 22, 1953 IN BOOK 2637, PAGE 506, OFFICIAL RECORDS OF SAID
ORANGE COUNTY.
PARCEL 2:(APN: 402-211-03)
THE NORTH 179.00 FEET OF THE WEST 140.00 FEET OF LOT 2 IN TRACT NO. 24, IN THE CITY OF
SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK
9, PAGE 23 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM THAT PORTION OF LAND LYING SOUTHWESTERLY OF THE NORTHEASTERLY
LINE OF THAT CERTAIN PARCEL OF LAND AS DESCRIBED IN DEED TO THE STATE OF CALIFORNIA,
RECORDED DECEMBER 22, 1953 IN BOOK 2637, PAGE 506 OF OFFICIAL RECORDS OF SAID ORANGE
COUNTY.
EXHIBIT B
INCOME VERIFICATION FORM
23
0AV01e31r11�11
INCOME VERIFICATION FORM
Head of Household (Print Name):
Address:
Telephone Number: Home: Work: Cell:
Date of Birth:
Social Security #:
Household Composition
List All Household Members Living in the Inclusionary Unit
Dependent
Name Sex Age (Y/N) Social Security #
List additional household members on a separate sheet of paper.
Income Verification Form Page 1
Santa Ana, California
EXHIBIT "B"
INCOME VERIFICATION FORM
Monthly Gross Income *
List All Sources of Income of All Household Members Living in the Inclusionary Unit
Part 1: Earned Income
Other Adult
Head of
Household
Household
Members
Total
1.
Gross amount, before payroll deductions of wages,
$
$
$
salaries, overtime pay, commissions, fees, tips and
bonuses.
2.
Net income from business.
$
$
$
3.
Social security, annuities, insurance policies,
$
$
$
pension/retirement funds, disability or death
benefits received periodically.
4.
Payment in lieu of earnings, such as
$
$
$
unemployment, disability compensation, worker's
compensation and severance pay.
5.
Public assistance, welfare payments
$
$
$
6.
Alimony, child support, other periodic allowances
$
$
$
7.
Regular pay, special pay and allowances of
$
$
$
members of the Armed Forces
8.
Other
$
$
$
Subtotal: Monthly Earned Income $
Total Monthly Earned Income x 12 = $ Total Annual Household Gross Earned Income
Income Verification Form Page 2
Santa Ana, California
EXHIBIT "B"
INCOME VERIFICATION FORM
Monthly Gross Income *
List All Sources of Income of All Household Members Living in the Inclusionary Unit
Part 2: Investment Income
Total
Other Adult
Household
Head of
Household
Investment
Household
Members
Income
1.
Interest paid on Bank and Savings accounts
$
$
$
2.
Dividends and other payments from stocks and
$
$
$
bonds
3.
Income from real property (i.e. rental property)
$
$
$
4.
Other (describe)
$
$
$
Subtotal: Monthly Investment Income:
$
Total Monthly Investment Income x 12 = $ Total Annual Household Investment Income
*Note: The following items are not considered income: casual or sporadic gifts; amounts specifically for or in
reimbursement of medical expenses; lump sum payments such as inheritances, insurance payments, capital
gains and settlement for personal or property losses; educational scholarships paid directly to the student or
educational institution; special pay to a serviceman head of family away from home and under hostile fire;
relocation payments under federal, state or local law; foster child care payments; value of coupon allotments
for purpose of food under Food Stamp Act of 1964 which is in excess of amount actually charged the eligible
household; payments received pursuant to participation in the following programs: VISTA, Service Learning
Programs, and Special Volunteer Programs, SCORE, ACE, Retired Senior Volunteer Program, Foster
Grandparent Program, Older American Community Services Program, and National Volunteer Program to
Assist Small Business Experience.
Income Verification Form Page 3
Santa Ana, California
EXHIBIT "B"
INCOME VERIFICATION FORM
Assets **
List the Current Value of All Assets of All Household Members Living in the Inclusionary Unit
If the Asset generates income, that income must be specified In Part 2 above
Head of
Household
Other Adult
Household
Members
Total Value of
Value
Value
Assets
1.
Bank and Savings accounts
$
$
$
2.
Stocks and bonds
$
$
$
3.
Real property (i.e. rental property)
$
$
$
4.
Other (describe)
$
$
$
Total Asset Value $
**Note: Necessary items, such as furniture and automobiles, used for personal use are excluded from
household assets. Collections of items for hobby, investment or business purposes must be included in
household assets. If the total value of household assets exceeds $5,000, the calculation of the household's
annual income shall include the greater of the actual amount of income, if any, derived from all of the
household assets; or 10% of the total value of the assets.
Income Verification Form Page 4
Santa Ana, California
EXHIBIT "B"
INCOME VERIFICATION FORM
If the total asset value exceeds $5,000, perform the calculations in the following table. If the total asset value
is less than $5,000, the amount of investment income to be included in annual household income is $0.
Calculation of Investment Income to be Included in Annual Household Income
1.
Total Annual Household Investment Income
$
2.
Total Asset Value
$
x 10%
$
The Greater of #1 or #2 = Investment Income to be Included in Annual Household Income $
Annual Income
Total Annual Household Gross Earned Income
Total Investment Income to be Included in Annual Household Income
Total Household Income
Attach True Copies of the Relevant Documents Listed Below
two most recent pay
periods
Employment verification
Income tax return
Social security verification
Alimony/child support verification
Other (Describe)
Bank/Savings account verification
Self-employment verification
Unemployment verification
Welfare verification
Disability income verification
Income Verification Form Page 5
Santa Ana, California
EXHIBIT "B"
AFFIDAVIT
This Affidavit is made with the knowledge that it will be relied upon by the City of Santa Ana,
our landlord and the owner of our apartment building, to determine maximum income for eligibility. (Ilwe)
warrant that all information set forth in this document is true, correct and complete and based upon information
(1/we) deem reliable and based upon such investigation as (1/we) deemed necessary.
(INVe) acknowledge that (1/we) have been advised that the making of any misrepresentation or misstatement in
this affidavit will constitute a material breach of (my/our) rental agreement with the property owner to rent the
unit and will additionally enable the property owner to initiate and pursue all applicable legal and equitable
remedies with respect to the unit and to me/us.
(INVe) do hereby swear under penalty of perjury that the foregoing statements are true and correct and that
this affidavit has been executed as of the date specified below by each adult member of the household which
intends to occupy an Inclusionary Unit located at Santa Ana, California.
Signature
Printed Name
Executed at
Signature
Printed Name
Date
Santa Ana, California
Executed at , Santa Ana, California
Affidavit Page 6
Santa Ana, California
EXHIBIT C
NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY
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EXHIBIT "C"
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO
City of Santa Ana
20 Civic Center Plaza, 6th Floor
Santa Ana, California 92702
Attn: Executive Director
This document is exempt from
payment of a recording fee
pursuant to Government Code
Sections 27383 and 6103.
NOTICE OF AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY
This Notice of Affordability Restrictions on Transfer of Property (or "Notice
of Affordability Restrictions") is executed and recorded pursuant to Section 65915
of the California Government Code, and affects that certain real property generally
located at 1814 & 1818 east First Street —in the City of Santa Ana, California
("City") as legally described in Exhibit A hereto ("Property"). The City of Santa
Ana, a charter city and municipal corporation of the State of California (referred to
herein as "City"), and Brandywine Acquisition Group, LLC ("Developer/Property
Owner") have entered into that certain Density Bonus Housing Agreement dated as
of August 17, 2022 ("Density Bonus Housing Agreement").
1. The Density Bonus Housing Agreement provides for affordability
restrictions and restrictions on the transfer of the Property, as more particularly set
forth in the Density Bonus Housing Agreement. A copy of the Density Bonus
Housing Agreement is on file with City as a public record and is deemed
incorporated herein. Reference is made to the Density Bonus Housing Agreement
with regard to the complete text of the provisions of such agreement and all
defined terms therein, which provides for affordability restrictions and restrictions
on the transfer of the Property.
2. For a period commencing upon the date on which the Affordable Unit
receives all required occupancy permits from the City and terminating on the fifty-
fifth (55th) anniversary thereof, the Property may only be transferred to another
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EXHIBIT "C"
eligible, qualified Moderate Income Household at an Affordable Housing Cost;
such restrictions are set forth at greater length in the Density Bonus Housing
Agreement, which is expected to be recorded substantially concurrently herewith
among the Official Records of Orange County, California.
3. Section 4.12 of the Density Bonus Housing Agreement provides as
follows:
"Notice of Affordability Restrictions on Transfer of Property. In the event
of the sale or resale of an Affordable Unit during the Total Affordability Term, the
City and the transferor shall execute and deposit into escrow, or record against the
Affordable Unit, a Notice of Affordability Restrictions on Transfer of the Property
as contained herein (Exhibit C). The sale or transfer of the Property, shall not be
effective unless and until the City and the transferee execute the documents
necessary to transfer the Density Bonus Agreement obligations from the transferor
to the transferee."
In the event that Developer/Property Owner desires to Transfer the Property
during the Affordability Period, prior to the Transfer the owner shall notify City by
delivering a Notice of Intent to Transfer to City, which shall indicate the identity of
the proposed Transferee who desires to purchase the Property, whether the
purchaser is a Moderate Income Household, and whether the sales price is at an
Affordable Housing Cost. In addition to Homebuyer's and the proposed
Transferee's delivery of the Notice of Intent to Transfer, the following procedure
shall apply:
a. Notice to City. Developer/Property Owner shall send the
Notice of Intent to Transfer to City at the address set forth in Section 9.3.1.
b. Qualification of Proposed Transferee. The proposed
Transferee shall provide the City with sufficient information in the form provided
by City including without limitation, a certification as to the income and family
size of the proposed Transferee, for City to determine if the proposed Transferee is
a Moderate Income Household, and the purchase price is at an Affordable Housing
Cost.
C. Certificates from Parties. Developer/Property Owner and
proposed Transferee each shall certify in writing, in a form acceptable to City, that
the Transfer shall be closed in accordance with, and only with, the terms of the
sales contract and other documents submitted to and approved by City and that all
consideration delivered by the proposed Transferee to owner has been fully
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EXHIBIT "C"
disclosed to the City. The written certificate shall also include a provision that in
the event a Transfer is made in violation of the terms of this Restriction or false or
misleading statements are made in any documents or certificate submitted to City
for its approval of the Transfer, City shall have the right to file an action at law or
in equity to make the parties terminate and/or rescind the sales contract and/or
declare the sale void notwithstanding the fact that the Transfer may have closed
and become final as between Developer/Property Owner and Transferee.
d. Written Consent of City Required Before Transfer. During
the Affordability Period, the Property, and any interest therein, shall not be
conveyed by any Transfer except with the express written consent of the City,
which consent shall be given only if the Transfer is in accordance with the
provisions of this Restriction. This provision shall not prohibit the encumbering of
title for the sole purpose of securing financing of the purchase price of the
Property.
e. Notice of Prohibited Transfer. Within twenty (20) days after
receiving notification of a proposed Transfer in accordance with Section 3a., the
City shall determine and give notice to Developer/Property Owner as to whether
the proposed Transfer is a Permitted Transfer or Prohibited Transfer. In the event
that the proposed Transfer is a Prohibited Transfer, such notice to
Developer/Property Owner shall specify the nature of the Prohibited Transfer. If
the violation is not corrected to the satisfaction of the City within ten (10) days
after the date of the notice, or within such further time as the City determines is
necessary to correct the violation, the City may declare a Default under this
Restriction. Upon the declaration of a Default, the City may apply to a court of
competent jurisdiction for specific performance of this Restriction, for an
injunction prohibiting a proposed sale or Transfer in violation of this Restriction,
for a declaration that the Prohibited Transfer is void, or for any such other relief as
may be appropriate.
f. Delivery of Documents. Upon the close of the proposed
Transfer, Developer/Property Owner and Transferee, as applicable, shall provide
the City with a copy of the final sales contract, settlement statement, escrow
instructions, all certificates required by this Section 3 and any other documents the
City may request.
4. The restrictions contained in the Density Bonus Housing Agreement
commence upon the date on which the Affordable Unit receives all required
occupancy permits from the City and terminate on the fifty-fifth (55th) anniversary
thereof.
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EXHIBIT "C"
5. The commonly known addresses for the Property is 1814 & 1818 East
First St. , Santa Ana, CA.
6. The assessor's parcel numbers for the Property is 402-211-02 & 402-
211-03
7. The legal description of the Property is attached hereto as Attachment
No. 1 and is incorporated herein by reference.
8. The Density Bonus Housing Agreement, which includes the
affordability restrictions referenced above, is expected to be submitted for
recordation in the Office of the Orange County Recorder contemporaneously with
this Notice of Affordability Restrictions.
9. The Density Bonus Housing Agreement remains in full force and
effect and is not amended or altered in any manner whatsoever by this Notice of
Affordability Restrictions.
10. Capitalized terms shall have the meaning established under the
Density Bonus Housing Agreement (including all Attachments thereto) excepting
only to the extent as otherwise expressly provided under this Notice of
Affordability Restrictions.
11. Persons having questions regarding this Notice of Affordability
Restrictions, the Density Bonus Housing Agreement or the Attachments thereto
should contact the City at its offices (20 Civic Center Plaza, Santa Ana, California
92701, or such other address as may be designated by the City from time to time).
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104:II:3Yliii�i
DEVELOP PROPERTY OWNER:
By: /
Printed Name: A
THE CITY OF SANTA ANA,
By: —M:,�
Executive Director
ATTEST:
APPROVED AS TO FORM:
SONIA R. CARVALHO, City Attorney
By: Cam" V'
Ryao e
Assi t nt City Attorney
Dated: I 9