RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
City of Santa Ana
City Clerk
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, California 92702
Attention: City Clerk
No fee for recording pursuant to
Government Code Section 27383
FIRST AMENDMENT TO DENSITY BONUS HOUSING AGREEMENT
(Legacy Square)
THIS FIRST AMENDMENT TO DENSITY BONUS HOUSING AGREEMENT (this "Amendment") is made and entered into as of the_ day of ______ , 2024 ("Effective Date") by and between the City of Santa Ana, a charter city and municipal corporation of the State of California (the "City"), and National Community Renaissance of California, a California nonprofit public benefit corporation (the "Developer"), and Legacy Square, L.P., a California limited partnership (the "Tenant"). The City, Developer, and the Tenant are sometimes collectively refeITed to as the "Parties." Terms not defined herein shall have the meaning set forth in the OBA (as defined below).
RECITALS:
A. Santa Ana United Methodist Church (the "Fee Owner") is the owner of the real property located within the City of Santa Ana, County of Orange, State of California, commonly known as 609 North Spurgeon Street, Santa Ana, California, and further described in Exhibit A attached hereto and incorporated herein by reference (the "Property").
B. Developer formed the Tenant to enter into a long-term ground lease with the Fee Owner and to develop the ninety-three (93) unit affordable apartment complex on the Property as more particularly described in the Density Bonus Application No. 2018-01 (the "Project").
Without the density bonuses, Developer and Tenant would only be permitted to build fifty-one (51) units on the Pro petty.
C. To set forth the term of the required density bonuses, the City and the Developer entered into that certain Density Bonus Housing Agreement with an effective date of February 5, 2019 (the "OBA"), and the same was recorded against the Prope1ty on March 25, 2019, as Recording No. 2019000092579, in the Official Records of Orange County, California (the "Official Records").
D. The Tenant and the Fee Owner entered into that certain long-term ground lease dated as of June 12, 2020, the same which was amended and restated by that certain amended -1-
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and restated ground lease dated as of February 11, 2021, with the owner of the Property, Santa Ana United Methodist Church, as further amended, ("Ground Lease"), with respect to a po,tion of the Prope1ty, under which the Tenant has a valid leasehold interest in the Property ("Leased Prope1ty").
E. With this Amendment, the Parties desire to amend the DBA to clarify that the covenants and obligations therein extend to and are only recorded against the Tenant's lease ho Id interest in the Propetty, and not the Fee Owner's interest in the propetty.
NOW, THEREFORE, for and in consideration of the covenants, representations, warranties and agreements set forth in the OBA, as amended herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the patties hereto do hereby agree as follows:
1. Section 4.1 of the OBA is deleted in its entirety and replaced with the following:
4.1 Recording of Documents. No later than issuance of building permits for the Project, Developer and the City shall record or cause to be recorded in the Official Records for Orange County, California, an executed original of this Agreement. City shall cooperate with Developer in promptly executing in recordable form this Agreement. Upon the date of recording, the terms and conditions of this Agreement shall be binding upon and run with the Leased Prope1ty and the Project. It is the express intent and agreement between the Patties that this Agreement sha 11 remain binding and enforceable against the Leased Property, the Project, and the Units to ensure compliance ,vith the State Density Bonus Law, City Density Bonus Law, and the City Housing Opportunity Ordinance, and to ensure the continued supply of Affordable Units in the Project.
2. Section 8.2 of the OBA is deleted in its entirety and replaced with the following:
8.2 Covenants Run with the Land. The Leased Property shall be held, sold, conveyed, hypothecated, encumbered, used, occupied and improved subject to the covenants, conditions, and restrictions set forth here in. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth in this Agreement shall run with the Leased Propetty and shall be binding upon Tenant and all persons having any right, title or interest in the Leased Property, or any patt thereof, their heirs, and successive owners and assigns, shall inure to the benefit of City and its successors and assigns, and may be enforced by City and its successors and assigns. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding for the benefit and in favor of City and its successors and assigns, and the parties hereto expressly agree that this Agreement and the covenants herein shall run in favor of City, without regard to whether City is or remains an owner of any land or interest therein to which such covenants relate. However, all such covenants and restrictions shall be deemed to run in favor of all real property owned by City which real property shall be deemed the benefited propetty of such covenants and this Agreement shall create equitable servitudes and covenants appurtenant to all real property owned by City and running with the Leased Property in accordance with the provisions of Civil Code Section 1468. 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 -2-
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community and other patties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. Developer and Tenant hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land and that the Tenant's interest, and Developer's interest, if any, in the Leased Property is rendered less valuable thereby. Tenant and Developer hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Leased Property by the citizens of City and by furthering the health, safety, and welfare of the residents of City.
3. The Parties agree that the legal description set forth in Exhibit A of the DBA shall be deemed a reference to the leasehold interest in the Property and the Ground Lease establishing the Leased Propetty, and all rights and interests granted therein.
4. Tenant hereby affirms that it agrees and assumes all obligations of Developer as set forth in the OBA, and that Tenant is bound by the DBA, as amended herein, for all obligations of the Developer as set fotth in the DBA.
5. Tenant and Developer each agree, for themselves and their respective successors and assigns that the entitlements and concessions set forth in the DBA are conditioned on the Ground Lease continuing in effect for a period of at least fifty five (55) years from the initial date of occupancy, as required by California Government Code § 65915 ("Statutory Affordability Period"). In the event the Ground Lease is terminated prior to the Statutory Affordability Period, or the Prope1ty is not operated in accordance with the affordability requirements for the duration of the Statutory Affordability Period, then the Project shall be in violation of the conditions of entitlement granted by the City, and the City shall have all rights and remedies available under law or equity.
6. Developer and Tenant agree to defend (with counsel of City's choosing), indemnify and hold harmless the City and its respective officers, officials, agents, employees, representatives, and volunteers ( collectively, "Indemnitees") from and against any loss, liability, claims, or judgment arising from any act or omission of Developer or Tenant in connection with its obligations under the OBA or this Amendment, except to the extent caused by the active negligence or willful misconduct of lndemnitees.
7. Except as amended herein, the DBA shall otherwise remain in full force and effect. The Patties hereby agree that this Amendment shall not constitute a no vat ion of the DBA, and that this Amendment shall not affect the priority of the DBA as an encumbrance against the Leased Propetty as compared to liens or other encumbrances on the Property or Leased Property subsequent to the DBA.
8. This Amendment may be executed in one or more counterparts and as so executed shall constitute a single instrument.
[Signatures on fo I lowing page]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their lawfully authorized officers.
ATTEST:
Jennifer Hall
City Clerk
Dated:
APPROVED AS TO FORM:
SONIA R. CARVALHO, City Attorney
-{)) . ./.(:;,/( t..J.,, By: r
CITY OF SANT A ANA
Tom Hatch
Interim City Manager
Dated: ________ _
Matthew R. Cody, Esq. Best, Best & Krieger
Dated: January 8, 2024
RECOMMENDED FOR APPROVAL:
Michael Garcia
Executive Director
Community Development Agency
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 truthfi.1lness, accuracy, or validity of that document.
State of California )
)
On______ , 2024, before me ____________ , Notary Public, personally appeared _______ 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 ce1tify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ____________ _
(Seal)
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DEVELOPER:
NATIONAL COMMUNITY RENAISSANCE OF
::.LIFORNUW J!
Name: Michael Finn
Title: Chief Financial Officer
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.
)
)
On J11111-tPqi f I 7PJ1;'4024, before me 'Yt//1/ifM(, �',,.__,, , Notary Public, personally appeared Michael Finn proved to 111 �11 the basis of satisfactory evidence to be the personG,B-rwhose name_µ-) is/� subscribed to the within instrument and acknowledged to me that he/�y executed the same in his/�r/t_pe-ir authorized capacity�, and that by his/ber1t;pe-ir signaturefe')on the instrument the person�-Y,or the entity upon behalf of which the person.(.&Y" acted, executed the instrument.
I certify under PENAL TY OF PER.IUR Y under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
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TENANT:
LEGACY SQUARE, L.P.,
a California limited partnership
By: NCRC Legacy MGP, LLC,
a California limited liability company,
its managing general partner
By: National Community Renaissance of California,
a California nonprofit public benefit corporation
its manager
By: WJ�
Name: Michael Finn
Title: Chief Financial Officer
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.
s��tt� j
:illAUA/IA"f 1, 2024, before me ¼ /UU, '.,L , Notary Public, personally appeared Michael Finn proved to me on the basis of atisfactory evidence to be the person� whose nameWis/¢'subscribed to the within instrument and acknowledged to me that he/s}re?t;ptj executed the same in his/]Jer/t�authorized capacity.ves), and that by his/peritj)e-ir signatureM on the instrument the personvr,or the entity upon behalf of which the person(,s.r 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.
Signatur�
t ?u'p.__
KH 1112350.3
(Seal)
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EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL I OF LOT MERGER NO. 2020-07, RECORDED DECEMBER 18, 2020 AS INSTRUMENT NO. 2020- 0750977 OF OFFICIAL RECORDS, FURTHER DESCRIBED AS FOLLOWS:
THOSE PORTIONS OF LOTS 4, 5, AND IO AND ALL OF LOTS 8 AND 9 AND 11 THROUGH 19,
INCLUSIVE, OF THE THOMAS ADDITION TO SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 19, PAGE 17 OF
MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 15;
THENCE ALONG THE WESTERLY LINES OF SAID LOTS 15, 14, 11 AND 10, NORTH 00°03'22" WEST 239.51 FEET TO THE NORTH LINE OF THE SOUTH 14.00 FEET OF SAID LOT 10; THENCE ALONG SAID NORTH LINE, NORTH 89°51 '04" EAST 125.27 FEET TO TI-IE WESTERLY LINE OF SAID LOT 9;
THENCE ALONG THE WESTERLY LINES OF SAID LOT 9, 8 AND 5, NORTH 00°01 '57'' WEST 103.00 FEET
TO THE SOUTHEASTERLY LINE OF CIVIC CENTER DRIVE PER DOCUMENT RECORDED FEBRUARY 25, 1974 IN BOOK 1108 PAGE 466 OF OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER;
THENCE ALONG SAID SOUTHEASTERLY LINE AND ITS NORTHEASTERLY PROLONGATION, NORTH 63°30'35" EAST 99.51 FEET TO A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 25.00
FEET, THE SOUTHERLY TERMINUS OF SAID CURVE BEING TANGENT TO THE EASTERLY LINE OF SAID LOT 5;
THENCE NORTHEASTERLY, EASTERLY, AND SOUTHERLY ALONG SAID CURVE 50.81 FEET THROUGH A CENTRAL ANGLE OF I 16°26'25" TO SAID POINT OF TANGENCY; THENCE ALONG THE EASTERLY LINES OF SAID LOTS 5, 8, 9, 12, 13, AND 19 SOUTH 00°03'00" WEST 359.21 FEET TO THE SOUTHEAST CORNER OF SAID LOT 19;
THENCE ALONG THE SOUTHERLY LINES OF LOTS 15 TI-rn.OUGH 19, INCLUSIVE, SOUTH 89°37'l6" WEST 250.51 FEET TO THE POINT OF BEGINNING.
APN: 398-236-05 AND 398-236-07
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