HomeMy WebLinkAboutTOLL WEST COAST, LLCRECORDING 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
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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Return FULLY EXECUTED Free Recordingpurmant to
O'C� l ) Government Code 27383
INSURANCE NOT REQUIRED Copy to City Clerk, M-30 I Y
WORK MAY PROCEED DENSITY BONUS HOUSING AGREEMENT A-2022-238
(C.Srtaw) � CITY CLERK 1
bBATE: This DENSITY BONUS HOUSING AGREEMENT ("Agreement") is made and entered NF
into this 6th day of December, 2022 , by and between the City of Santa Ana, a charter city and G
municipal corporation of the State of California ("City"), and Toll West Coast, LLC, a Delaware
m limited liability company ("Developer"). City and Developer are sometimes herein referred to
o collectively as the "Parties" and individually as a "Party."
a
RECITALS
A. Developer is the owner of certain property located within the City of Santa Ana,
County of Orange, State of California, commonly known as 717 S. Lyon 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 fall ("Property").
B. Developer acquired the Property as a successor in interest to the former owner,
Orange County Electrical Joint Apprenticeship Trust. Warmington Residential California, Inc. a
California corporation, applied for permits for development of the Property and secured
entitlements for the Project. Developer represents and warrants that, upon execution of this
Agreement, in accordance with the Assignment and Assumption Agreement delivered by
Developer to City, Developer has all legal title to the Property, and has been assigned or otherwise
transferred all rights and interests in the Property to construct, develop and operate the Project in
accordance with the terms and conditions set forth herein. Developer is proposing to develop a
community composed of fifty-one (51) single-family attached townhome condominiums, eight (8)
of which are proposed as low-income affordable units, on the Property, as more particularly set
forth in Density Bonus Application No. 2022-03 ("Project"). Without the density bonuses,
Developer would only be permitted to build thirty-five (35) units on the Property.
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
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operated by Developer as rental properties.
E. The Project complies with the affordable housing requirements set forth in the State
Density Bonus Law, City Density Bonus for Affordable Housing, and the City's Affordable
Housing Opportunity and Creation Ordinance. 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 and three waivers.
G. This Agreement, and the exhibits attached hereto and incorporated herein by
reference, is intended to set forth the terns and conditions for the implementation of the Project's
requirement to provide affordable housing units in exchange for receiving the Density Bonus Units
and additional concessions and waivers 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)(111), restrictions on the sale and conveyance of the Property that
ensure that the Property will be preserved for lower 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 eight (8) units, which shall be comprised of one
(1) two -bedroom unit, one (1) three -bedroom unit, four (4) three -bedroom plus den units, and two
(2) three bedroom plus den (optional 0' bedroom) units for Low -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 "Base Units" means the thirty-five (35) Units that Developer would be
authorized to develop on the Property without application of the State Density Bonus Law.
1.1.5 "City" means the City of Santa Ana, California
1.1.6 "City Council" means the City Council of the City of Santa Ana.
1.1.7 "City Attorney" means the City Attorney for the City of Santa Ana.
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1.1.4 "Base Units" means the thirty-five (35) Units that Developer would be
authorized to develop on the Property without application of the State Density Bonus Law.
1.1.5 "City" means the City of Santa Ana, California
1.1.6 "City Council" means the City Council of the City of Santa Ana.
1.1.7 "City Attorney" means the City Attorney for the City of Santa Ana.
1.1.8 "City Manager" means the City Manager for the City of Santa Ana.
1.1.9 "City's Planning Commission" means the Planning Commission for the
City of Santa Ana.
1.1.10 "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.
1.1.11 "Density Bonus Units" means the sixteen (16) Units in addition to the Base
Units that Developer shall develop pursuant to the density allowance in the State Density Bonus
Law and the terms and conditions of this Agreement, of which Developer would not be entitled to
develop without providing the Affordable Units.
1.1.12 "Developer" means Toll West Coast, LLC, as permitted Assignee under
the Assignment and Assumption of Density Bonus Agreement with Warmington Residential
California, Inc. as Assignor (acknowledged February 20, 2024), and its permitted successors and
assigns to all or any part of the Property, Project or this Agreement.
1.1.13 "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.
1.1.14 "Eligible Household" means a Household whose income does not exceed
the "Low -Income" qualifying limit as defined herein.
1.1.15 "Household" means all persons residing in a Unit.
1.1.16 "Low -Income" means persons and families whose income does not exceed
the limits provided in California Health and Safety Code Section 50052.5.
1.1.17 "Project" means that certain residential development as more particularly
described in Recital B and Section 2 of this Agreement.
1.1.18 "Property" means that certain real property more particularly described in
the legal description in Exhibit A and improvements thereon.
1.1.19 "State Density Bonus Law" means Government Code sections 65915, et
seq., as they exist on the Effective Date.
1.1.8 "City Manager" means the City Manager for the City of Santa Ana.
1.1.9 "City's Planning Commission" means the Planning Commission for the
City of Santa Ana.
1.1.10 "Density Bonus Housing Agreement Term" means the period during
which this Agreement shall be in Rill force and effect, as provided for in Section 6 below.
1.1.11 "Density Bonus Units" means the sixteen (16) Units in addition to the Base
Units that Developer shall develop pursuant to the density allowance in the State Density Bonus
Law and the terms and conditions of this Agreement, of which Developer would not be entitled to
develop without providing the Affordable Units.
1.1.12 "Developer" means Toll West Coast, LLC, and its permitted successors
and assigns to all or any part of the Property, Project or this Agreement.
1.1.13 "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.
1.1.14 "Eligible household" means a Household whose income does not exceed
the "Low -Income" qualifying limit as defined herein.
1.1.15 "Household" means all persons residing in a Unit.
1.1.16 "Low -Income" means persons and families whose income does not exceed
the limits provided in California Health and Safety Code Section 50052.5.
1.1.17 "Project" means that certain residential development as more particularly
described in Recital C and Section 2 of this Agreement.
1.1.18 "Property" means that certain real property more particularly described in
the legal description in Exhibit A and improvements thereon.
1.1.19 "State Density Bonus Law" means Government Code sections 65915, et
seq., as they exist on the Effective Date.
1.1.20 "Unit" means a residential dwelling unit within the Project to be
constructed by Developer pursuant to this Agreement.
1.1.21 "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
incorporated into, 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 fifty-
one (51) single-family attached townhomes, eight (8) of which are proposed as Low -Income
Affordable Units. All of the townhomes are planned to be condominiums that will be offered for
sale.
2.2 Density Bonus. The Project shall have fifty-one (51) Units, to be sold, used,
occupied, operated, and maintained pursuant to the terms and conditions of this Agreement.
Developer agrees to provide eight (8) Affordable Units to Low -Income Households, which equals
23%, after rounding up, of the thirty-five (35) Base Units allowed for the Project. Accordingly,
Developer pursued its density bonus pursuant to Government Code section 65915(b)(1)(A), which
requires 10% of the total units of a housing development for rental or sale to lower income
households. Pursuant to Government Code section 65915(f)(1), Developer's 23% in Low -Income
Affordable Units provides a 46.25% density bonus. Developer understands and agrees that
Developer is utilizing a 46.25% density bonus increase provided by the State Density Bonus Law
(35 Base Units x 46.25% = 16 State Density Bonus Units) for a total of 51 units. Developer shall
not construct or develop, or otherwise claim a right to construct or develop, more than sixteen (16)
State Density Bonus Units on the Property.
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. 2022-03 for the Project:
2.3.1 The open space requirements for this Project shall be reduced in accordance
with Government Code Section 65915(d)(2)(A), which allows one (1) incentive or concession for
projects that include at least 10% of the total units for lower income households, such that the
minimum required common open space shall be seven -percent (7%) of the Property lot size.
2.3.2 The development standards for this Project shall be waived in accordance
with Government Code Section 65915(e)(1), such that the proposed building setbacks exceed the
maximum allowed (8'-0" setback) and shall be between 9'-0" and 13'-0".
2.3.3 The development standards for this Project shall be waived in accordance
with Government Code Section 65915(e)(1), such that the proposed fencing height within the front
yard setback shall exceed the maximum allowed (3'-0"), and shall be a maximum of 6'-0" in height
within the front yard setback.
2.3.4 The development standards for this Project shall be waived in accordance
with Government Code Section 65915(e)(1), such that the Project shall provide no frontage type
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and the minimum ground floor height shall be below the minimum required (between 10'-0" and
15'-0") and shall be no less than 9'-0"
2.4 No Further Concessions or Incentives. Developer aelmowledges 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 forty-three (43) Unrestricted Units (i.e. — non -Affordable Units).
2.6 Affordable Units. The Project, for purposes of this Agreement, shall have no less
than fifty-one (51) single-family attached townhomes, eight (8) of which are designated as Low -
Income Affordable Units pursuant to the terms and conditions of this Agreement. The Affordable
Units shall be consistent with all City approvals, and shall be located throughout the Project.
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
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
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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, vohmteers 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.
3. APPORDABILITY
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 Term"). 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 Term. The commencement
date for each Affordable Unit is the date that a deed is recorded conveying the Affordable Unit
from Developer to a member of the homebuying public. Developer shall deliver a copy of each
grant deed to the City so that the City has a record of the commencement date for each Affordable
Unit.
3.3 Levels of Affordability.
3.3.1 Low Income Households. Developer covenants that no less than eight (8)
Affordable Units in the Project during the Density Bonus Housing Agreement Term will be built
and initially sold or conveyed to, or preserved for Low -Income Iouseholds.
4. OWNERSHIP AND OPERATION OF THE PROJECT BY OWNER
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
(1/8th) 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 ("Effective Date"). 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 Affordable Units to ensure
compliance with the State Density Bonus Law and City Density Bonus Law. It is the express intent
and agreement between the Parties that this Agreement shall remain binding and enforceable
against the Affordable Units to ensure the continued supply of Affordable Units in the Project,
except as expressly set forth in this Agreement.
4.3 Sale of Units. Upon the completion of construction of each Affordable Unit in 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.
4.4 Location of Affordable Units. During the Density Bonus Housing Agreement
Term, the Affordable Units shall be dispersed throughout the Project as provided in the approved
Inclusionary Housing Plan Application dated April 27, 2022.
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 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 portion of the Property and the Project that Developer owns to be maintained in a decent, safe
and sanitary manner, regardless of cause of the disrepair, to the extent commercially reasonable.
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Developer shall, prior to the first close of escrow for sale of any Unit, form a homeowners
association that will, at all times during the term of this Agreement, cause 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
the Project or the Property is not maintained 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 corrections are initiated 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 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 "P WA"),
and the City Attorney to ensure that the Property and all common area 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
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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), or if a homeowners association
has been created, both the applicant and the owner of the Property, or homeowners
association, as applicable, 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 artless 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 fled,
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 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 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 Manager is deficient based upon
the standards set forth in the approved Management Plan and in this Agreement, City shall provide
written notice to the Developer and/or homeowners association, as applicable, of such deficiencies
and the Developer and/or homeowners association, as applicable, shall use commercially
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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 the Developer and/or homeowners association, as applicable, to
immediately remove and replace the Property Manager with another property manager or 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. The Developer and/or homeowners association, as applicable, shall give City
notice of the proposed replacement Property Manager. Such proposed replacement Property
Manager 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 purchase 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
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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 each Affordable Unit during the Total Affordability Term, the City, transferor, and the
transferee, shall execute and deposit into escrow, to be recorded before or on closing, 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, transferor, and the transferee, execute the documents necessary to transfer die 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 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. 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 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
11
4.17 Reserved.
4.18 Onsite Parking Management Plan. Developer has agreed to provide one -hundred -
and -five (105) ofsite parking stalls for residents and visitors of the Project and to obligate the
homeowners association to actively monitor the parking demand of the Project site. Developer
and/or the homeowners association, as applicable, shall be obligated to 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 Vesting Tentative Tract Map No. 2022-03 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
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).
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 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
IV)
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 Sections 8.1.2 or 8.1.3 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
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, 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 8.1.11 Developer shall be released from any future obligations under this
Agreement.
13
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 rmderstands 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 commencement date described in Section 3.2 above.
8.1.3 Sale of Condominiums; Transfer to Homeowners Association. Developer
shall have the right to sell each of the Affordable Units to a qualified household in accordance with
this Agreement and the procedures listed in Exhibit C, the Notice of Affordability Restrictions,
subject to the City's confirmation of the qualified household. Without the City's prior written
approval, Developer shall have the right to sell each of the Unrestricted Units to a member of the
homebuying public. Without the City's prior written approval, Developer shall have the right to
convey all or a part of the common area of the Project to the homeowners association formed to
manage the Project, subject to the City's approval of any CC&R's for the Project.
8.1.4 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.
8.1.5 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
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
14
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 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
15
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: Toll West Coast, LLC
350 Commerce Suite 200
Irvine, California 92602
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 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 rile 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
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.
16
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 Dam. Unless otherwise specified in this Agreement orally 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 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
17
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 govermment 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
aclmowledgment 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 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
there are no uncured defaults in the performance of the requesting Party, except as may be
represented by the requesting Party.
lu
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
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-2022-238
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:
� ®,
APPROVED AS TO FORM
Sonia R. Carvalho
City Attorney
By. flhdraa C-turu A-1M��1eY
Assistant City Attorney
CITY OF SANTA ANA
City Manager
RECOMMENDED FOR APPROVAL: TOLL WEST
Michael Garcia
Executive Director
Community Development Agency
LLC
Sal or Avila`
erector, Community Planning,
Southern California Division
20
CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 7189
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 Californi
County of 00rr✓I� 1} `'_ �r,�._ (��7
On before me, U QOk 1 I��y-1 nI w/ i.).
D to I Here Insert Name and Title of thpbfflcer
personally appeared
Name(s) of Signer(s)
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.
■ O . yLINDAPub BOOLEN
777 Notary Public- California
San Diego County
Commission N 2433984
,.o My Comm. Expires Feb 7, 2027
Place Notary Seal and/or Stamp Above
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.
Signatur�*
Signature of Notary Public
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:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer is Representing:
C2019 National Notary Association
Number of Pages:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer is Representing:
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 May 1. 2024 before me, Claudia M. Fernandez -Shaw, Notary Public
(insert name and title of the officer)
personally appeared Alvaro Nunez
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.
hand and
CLAUDIA M. FERNANDEZ-SHAW
Notary PcbiiC - Catlfornia
�' Orange COLnty
Commission Y 2388597
'••o>'•� m Comm. Expires Jan 25, 2026
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
REAL PROPERTY IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
THAT PORTION OF LOT "I" OF THE STAFFORD AND TUSTIN TRACT, AS SHOWN ON
A MAP RECORDED IN BOOK 2, PAGES 618 AND 619 OF MISCELLANEOUS RECORDS
OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE WESTERLY LINE OF LOT "I" OF THE "STAFFORD
AND TUSTIN TRACT' AS SHOWN ON A MAP RECORDED IN BOOK 2, PAGE 618 OF
MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, SAID POINT
BEING 862.54 FEET SOUTHERLY FROM THE NORTHWEST CORNER OF SAID LOT "I",
BEING ALSO THE SOUTHWEST CORNER OF THE TRACT CONVEYED TO PACIFIC
ELECTRIC RAILWAY COMPANY BY DEED RECORDED JANUARY 29, 1918 IN BOOK
317, PAGE 340 OF DEEDS; RUNNING THENCE EAST ALONG THE SOUTH LINE OF SAID
TRACT CONVEYED TO THE PACIFIC ELECTRIC RAILWAY COMPANY, 398.43 FEET,
MORE OR LESS, TO THE SOUTHEAST CORNER THEREOF, SAID POINT BEING ALSO
IN THE EAST LINE OF LANDS CONVEYED TO J. J. VAN WYK BY DEED RECORDED
APRIL 28, 19161N BOOK 273, PAGE 137 OF DEEDS; RUNNING THENCE SOUTH ALONG
SAID EAST LINE, 246.275 FEET, MORE OR LESS, TO THE SOUTHEAST CORNER OF
SAID TRACT CONVEYED TO J. J. VAN WYK; THENCE WEST 398.43 FEET TO THE
SOUTHWEST CORNER OF SAID TRACT CONVEYED TO J. J. VAN WYK; THENCE
NORTH 247.085 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM, THAT PORTION OF SAID LOT "I" AS DESCRIBED IN DEED
TO THE CYFY OF SANTA ANA, RECORDED SEPTEMBER 28, 1971 1N BOOK 9822, PAGE
341 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
APN: 402-061-03
21
EXHIBIT B
INCOME VERIFICATION FORM
22
EXHIBIT "B"
INCOME VERIFICATION FORM
Inclusionary Unit Address:
Head of Household (Print Name):
Current Address (if
different from above):
Telephone Number: Home: Work:
Email address:
Date of Birth:
Social Security # or TIN:
Cell:
Household Composition
List All Household Members Living in the Inclusionary Unit
Dependent Social Security #
Name Sex Age (Y/N) or Taxpayer ID #
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
Head of
Household
Household
Members
Total
1.
Gross wages, before payroll deductions and
$
$
$
including overtime pay, commissions, fees, tips
and bonuses.
2.
Net income from self employment, independent
$
$
$
contractor work or a business.
3.
Social security and any payments from 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 $
Calculation of the Household's Total Annual Income
Total Annual Household Gross Earned Income $
Total Investment Income to be Included in Annual Household Income $
Total Household Income $
Documentation
Attach True Copies of the Relevant Documents Listed Below
Paycheck stubs from three most recent
pay periods Bank/Savings account verification
Employment verification
Three years Income tax returns for Title
Holders
Social security verification
Alimony/child support verification
Other (Describe)
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 and the City of Santa
Ana to determine maximum income for eligibility to purchase the Inclusionary Unit listed above. (1/we) warrant
that all information set forth in this document is true, correct and complete and based upon information (I/we)
deem reliable and based upon such investigation as (1/we) deemed necessary.
(I/We) 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) purchase agreement and will additionally enable the
seller to terminate the purchase contract and sell the Inclusionary Unit to another party.
(I/We) 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
Signature
Printed Name
Executed at
Signature
Printed Name
Executed at
Santa Ana, California
,Santa Ana, California.
Date
Santa Ana, California
Date
Santa Ana, California
EXHIBIT C
NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY
23
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 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 ("Developer/Property Owner") have entered into that certain
Density Bonus Housing Agreement dated as of , ("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
1
EXHIBIT "C"
eligible, qualified Low 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 Low 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 Low 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
2
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.
3
EXHIBIT "C"
5. The commonly known addresses for the Property is Santa
Ana, CA
6. The assessor's parcel numbers for the Property is
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).
M
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment the day and year first above written.
ASSIGNOR:
WARMINGTON RESIDENTIAL CALIFORNIA,
INC., a California corporation
By:
Name: J#Oftelie
Its: Div ion President, Southern California at
Warmington
ASSIGNEE:
TOLL WEST COAST, LLC, a Delaware limited
liability company
By:
Name: ador Avila
Its: Director, Community Planning, Southern
California Division
55394.00101 \4176975 8. I
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 2/20/24
personally appeared Joe Oftelie
before me, Alexandria Olivares - A Notary Public
(insert name and title of the
who proved to me on the basis of satisfactory evidence to be the personal whose name(s) is/ati
subscribed to the within instrument and acknowledged to me that he/executed the same in
his/`eF t;eiF authorized capacity(4e3), and that by his/ ;eR signature() -on the instrument the
person(s), 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.
Oe= ALEXANDRIA OLIVARES
WITNESS my hand and official seal. "` `_; Nataypubiic-Cant 1 I
= Oramye County
- Commissions 18,4
My Comm. Expires DecOec tA, 2025
Signature (Seal)
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 February 15, 2024
before me, Carmen Gizel Palacios De Nova,
(insert name and title of the officer)
personally appeared Salvador Avila
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/she4they executed the same in
his/herltheir authorized capacity(ies), and that by his/hep%heir signature(&) on the instrument the
person{&), or the entity upon behalf of which the persorr(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.
WITNESS my hand and official seal.
Signature
CARMEN GIZEL PALAC105 DE NOYA
Notary Public California
: ems = Orange Canty .
Corrissic 2351795
My Co, —.Expires Mar 16, 2025
(Seal)