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1 2101 E. 4th Street Density Bonus Agreement
RECORDING 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
Free Recording pursuant to
Government Code 27383
DENSITY BONUS HOUSING AGREEMENT WITH DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
2101 E. 4th Street, Santa Ana, California (APN: 400-041-03) This DENSITY BONUS HOUSING AGREEMENT WITH DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (“Agreement”), is made and entered into this day of , 2026, for reference purposes only, by and between the City of Santa Ana, California, a charter city and municipal corporation of the State of California (“City”), and Think Together , a California non profit corporation (“Developer”). City and Developer are sometimes referred to collectively as the “Parties” and individually as a “Party.”
RECITALS
A. Developer is the owner of that certain property located at and commonly known as 2101 E. 4th Street, Santa Ana, California , California, and legally described as set forth in Exhibit A attached hereto and incorporated herein by this reference as if set forth in full (“Property”).
B. Developer is proposing to develop a housing development project with a total of two hundred seventy four (274) residential apartment units , with related improvements and amenities, including mixed use commercial, as more particularly set forth in Density Bonus Application No. DBA-2026-01 (“Project”).
The Project will include fourteen (14) units restricted for occupancy by Extremely Low Income Households for an Affordable Rent, on terms and conditions further set forth herein.
C. Santa Ana Santa Ana Municipal Code sections 41 -1600, et seq . (“City Density Bonus for Affordable Housing”), and California Government Code sections 65915, et seq. (“State Density Bonus Law”), set forth a process to provide increased residential densities and incentives, concessions, and waivers to property owners or developers who restrict a portion of their residential development to low income, very-low income, seniors or other qualified households, as specified . These regulations are intended to materially assist the housing industry in providing Exhibit 2 - Draft Density Bonus Agreement
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adequate and affordable housing for all economic segments of the community and to provide a balance of housing opportunities for very -low income, low income , seniors and other qualified households throughout the City.
D. The allowable base density for the Property under the City's Municipal Code is ninety (90) dwelling units per acre. The Project site is 2.89 acres, resulting in a maximum allowable density for the Project of two hundred sixty one (261) units.
The Project proposes restricting fourteen (14) units for Extremely Low Income Households, which results in a density bonus up to twenty percent (20%) of the base density.
E. The Project complies with the affordab ility requirements for a housing development as set forth in the State Density Bonus Law and City Density Bonus for Affordable Housing.
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 Sections 65915(d)(1)(2)(C), the City has determined that the Project is eligible for a density bonus, one (1) incentive or concession , and waivers as prescribed by the State Density Bonus Law.
G. By providing affordable housing for Extremely Low Income Households in accordance with this Agreement , the Project will also comply with the City's Affordable Housing Opportunity and Creation Ordinance, as set forth in Article XVIII.1 of the Santa Ana Municipal Code.
H. This Agreement, and the exhibits attached hereto and incorp orated herein by reference, are intended to set forth the terms and conditions for the implementation of the Project’s requirement to provide affordable housing units in exchange for receiving the density bonus, concession 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:
1. 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 "Adjusted for family size appropriat e to the unit" shall have the meaning set forth by Health and Safety Code Section 50052.5(h).
1.1.2 "Affordable Rent" means the maximum Monthly Rent that may be charged to and paid by an Eligible Household for the Affordable Units, as required by the terms of t his Agreement, and which shall not exceed the amount of Affordable Rent authorized by California Health and Safety Code Section 50053 and pursuant to implementing regulations 55394.00101\44900944.3
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published by the California Department of Housing and Community Development, as determined from the Median Income for Orange County, as defined below in Section 1.1.16. The Affordable Rent shall be adjusted to reflect a reasonable utilities allowance for utilities paid by the household using the Santa Ana Housing Authority Multi-Family Housing Utility Allowance Schedule, and shall be updated no less than annually.
1.1.3 “Affordable Rent Schedule” means a rent schedule established as of the date of issuance of an occupancy permit (exclusive of tenant utility payments or security deposits) for the required number/percentage of the total number of units in the Project which are to be rented or available for rent to Eligible Hous eholds. The Affordable Rent Schedule shall be established at the time of the issuance of the occupancy permit (“Initial Rent Schedule”) and shall be created in accordance with the Orange County, California Primary Metropolitan Statistical Area (“PMSA”) as published by the California Department of Housing and Community Development (“HCD”), adjusted for family size, and shall be updated no less than annually.
1.1.4 "Affordable Units(s)" means the fourteen (14) unit(s), which shall comply with the Affordable Unit Mix set forth in Section 2.6.2. Any change to the number, bedroom size, or distribution of Affordable Units is subject to City Manager approval.
1.1.5 "Agreement" means this Density Bonus Housing Agreement.
1.1.6 "City" means the City of Santa Ana, California
1.1.7 "City Council" means the City Council of the City of Santa Ana.
1.1.8 "City Attorney" means the City Attorney for the City of Santa Ana.
1.1.9 "City Manager" means the City Manager for the City of Santa Ana.
1.1.10 "City's Planning Commission" means the Planning Commission for the City of Santa Ana.
1.1.11 “Density Bonus Application ” shall mean the Density Bonus Application No. DBA-2026-01 for the Project.
1.1.12 "Developer" means 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 Developer and the City shall record or cause to be recorded in the Official Records for Orange County, California, an executed original of this Agreement, pursuant to section 4.1 herein.
1.1.14 "Eligible Household" means a Household whose income does not exceed the qualifying limits for an Extremely Low Income Household, as defined below.
1.1.15 "Extremely Low Income Household(s)" means a Household whose income does not exceed the limits for "extremely low income households" as defined in California 55394.00101\44900944.3
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Health and Safety Code section 50106. An Extremely Low Income Household is within the meaning of a "very low income household" under State Density Bonus Law.
1.1.16 "Household" means all persons residing in a Unit.
1.1.17 "Median Income" means the Orange County, Califo rnia area median income, adjusted for family size pursuant to California Health and Safety Code § 50052.5(h), as periodically published by HCD.
1.1.18 "Monthly Rent" means the total of monthly payments for: (a) use and occupancy of each Affordable Unit and land and facilities associated therewith; (b) any separately charged fees or service charges assessed by Developer which are required of all tenants, other than security deposits, application fees or credit check fees; (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone or cable service, to the extent applicable and charged to tenant; and, (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Developer. In the event that certain utility charges are paid by the landlord rather than the tenant, no utility allowance shall be deducted from the rent for that type of utility charge.
1.1.19 "Official Records" means the Official Records for the County of Orange, where the Property is located.
1.1.20 "Project" means that certain afford able residential development as more particularly described in the Recitals and Section 2 of this Agreement.
1.1.21 "Project Approvals" means the entitlements for the Project approved by the City's Planning Commission or about May 11, 2026, and any subsequent approvals of the Project by the City Council.
1.1.22 "Property" means that certain real property more particularly described in the legal description in Exhibit A and improvements thereon.
1.1.23 "State Density Bonus Law" means Government Code sections 65915, et seq., as they exist on the Effective Date.
1.1.24 "Term" means the period during which this Agreement shall be in full force and effect, as provided for in Section 5.1 below.
1.1.25 "Unit" means a residential dwelling unit within the Project to be constructed or caused to be constructed by Developer pursuant to this Agreement.
1.1.26 "Unrestricted Units" means the Units within the Project to be constructed or caused to be constructed by Developer to a Household without restriction.
1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:
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1.2.1 Exhibit A – Legal Description of the Property
1.2.2 Exhibit B – Tenant Verification
1.2.3 Exhibit C – Annual Tenant Recertification
1.2.4 Exhibit D – Annual Rental Housing Compliance Report
1.2.5 Exhibit E – Notice of Affordability Restrictions on Transfer of Property
2. DEVELOPMENT OF THE PROPERTY
2.1 Project. Developer shall develop, operate, and maintain, or cause the development, operation and maintenance of, the Property as two hundred seventy four (274) unit rental residential community, with fourteen (14) Affordable Units for Eligible Households.
2.2 Density Bonus. The Project shall be rented, occupied, operated, and maintained pursuant to the terms and conditions of this Agreement. Developer understands and agrees that the number of Units allowed herein represents a density bonus of thirteen (13) Units. Developer shall not construct or develop, or otherwise claim a right to construct or develop any additional residential units on the Property under this Agreement.
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:
2.3.1 Concession/Incentive. In accordance with Gov ernment Code Section 65915(d), Developer is entitled to one (1) concession or incentive, as follows:
(a) The Project is within the City's Metro East Mixed Use Overlay Zone (hereafter, the "MEMU"). Section 4.7 of the MEMU establishes a ten (10) foot maximum setback adjacent to the public right of way or a street. This requirement of the MEMU is increased as follows: the maximum setback adjacent to Park Center Drive shall be 14.25 feet.
2.3.2 Waivers. Provided that the Project complies with all other requirements of this Agreement and the Project Approvals, the City agrees to the following waivers:
(a) Section 4.5 of the MEMU requires ten percent (10%) of the gross area of the Project site (125,952 square feet) to provide publicly accessible open space . This requirement of the MEMU is reduced as follows: The Project shall pr ovide 10,666 square feet of publicly accessible open space.
(b) Section 4 of the MEMU provides that developments located within the Village Center Core may develop up to 10 stories for a depth of 150 feet from the street and 6 stories thereafter (the “MEMU Hei ght Limitation”). The requirement of the MEMU is modified to 7 stories for the entire depth of the building.
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2.4 Parking Requirements. Onsite parking shall be provided in compliance with Government Code Section 65915(p) as follows: The Project shall provide four hundred thirty nine (439) parking spaces available on the Property to residents of the Project.
2.5 No Further Concessions, Incentives, or Waivers. Developer acknowledges and agrees that no further concessions, incentives, waivers or parking requirements are requested, and that the terms set forth in Section 2.3 and 2.4 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.
2.6 Unit Mix.
2.6.1 Unrestricted Units. The Project, for purposes of this Agreement, may have no more than two hundred sixty (260) Unrestricted Units, inclusive of one (1) manager's unit, as set forth in sub-paragraph 2.6.3, below, and pursuant to the terms and conditions of this Agreement.
Any change to the unit distribution of the Unrestricted Units may affect the co mparability of the Affordable Units and is subject to City Manager approval.
2.6.2 Affordable Units. The Project, for purposes of this Agreement, shall have no less than fourteen (14) Affordable Units, for Eligible Households, as set forth in sub-paragraph
2.6.3, and pursuant to the terms and conditions of this Agreement. The Affordable Units shall be consistent with all City approvals, comparable in bedroom distribution and amenities to the Unrestricted Units, and shall be located throughout the Project as required under Santa Ana Municipal Code section 41-1602(c)(5).
2.6.3 Affordable Unit Mix.
UNIT MIX
Income Level Extremely Low Income Households
# of Units 5 8 1
# Bedrooms 1 2 3
# of Units as
a % of Total 1.8% 2.9% .3%
Sq Ft 3,523 8,306 1,384
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2.7 Minimum Development Standards for Affordable Units . The Affordable Units shall be constructed with the same exterior appearance and interior features, fixtures, and amenities, and shall use the same type and quality of materials as provided for any Unrestricted Units, regardless of whether such Unrestricted Units are in the Project.
2.8 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 Pr oject by City or any other federal, state, or local governmental entity having or claiming jurisdiction over the Property or Project. Upon securing any and all permits, and all necessary financing and property interests, Developer shall carry out and perform the development, operation, and maintenance of the Project or cause the performance of the development, operation, and maintenance of the Project, in conformity with all applicable federal, state, and local laws and regulations, and all conditions of approval issued by the City Council and City's Planning Commission for the Project. Any changes to the Project shall be reviewed by the City to determine compliance with this Agreement. If any changes to the Project shall materially alter the ability of D eveloper to comply with any terms of this Agreement in City’s sole determination, then City and Developer shall meet and confer to address amendments and revisions to this Agreement as necessary.
2.9 Relocation Prior to Development of Project. If relocation is required prior to the completion of development of the Project, Developer shall have the sole and exclusive responsibility for providing relocation assistance and paying all relocation costs as may be required to comply with applicable federal and state laws and regulations. In addition to any other indemnity provided by Developer under this Agreement, Developer shall indemnify, defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent), and hold harmless City and all of its officials, officers, employees, representatives, volunteers and agents from any and all alleged or actual claims, causes of action, liabilities, and damages f rom any third party for relocation assistance, benefits and costs prior to the completion of the development of the Project.
2.10 Mechanic's Liens; Indemnification. Developer shall take all actions reasonably necessary to remove any future mechanic's liens or o ther 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, conditioned or delayed and which may be joint defense counsel upon City's and Developer's consent), and hold harmless City and all of its officials, officers, employees, representatives, volunteers and agents from any and all alleged or actual claims, causes of action, liabilities, and damages from any third party by reason of a mechanic's lien or work, labor, services, or materials supplied or claimed to have been supplied to Developer or caused by, at the direction of, or on behalf of Developer.
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3. AFFORDABILITY
3.1 Affordability Term . Each Affordable Unit shall be restricted to use and occupancy by Eligible Households for a term of not less than fifty-five (55) years ("Affordability Term"). The Affordability Term shall commence on the date when an Affordable Unit receives all required occupancy permits from the City and expire on the date that is fifty-five (55) years after the date when the Affordable Unit is first made available for occupancy to Eligible Households pursuant to this Agreement . The Affordability Term shall be determined for each individual Affordable Unit.
3.2 Memorializing Commencement of Affordability Term. Developer shall keep or cause to be kept detailed records of the commencement date of the Affordability Term for each Affordable Unit. City shall have the right to review and verify said records to ensure that the commencement date specified by Developer for an Affordable Unit coincides with the date that the Affordable Unit received all permits from City required for occupancy of the Unit. In the event that a conflict exists between the date specified by Developer for the commencement of the Affordability Term for an Affordable Unit and the date specified by City's issuance of all required permits for occupancy of the Unit, the date specified by City's issuance of all required permits for occupancy of the Unit shall control.
3.3 Levels of Affordability.
3.3.1 Affordable Rent . Developer covenants that all Affordable Unit s in the Project shall at all times during the Affordability Term be rented to, or held vacant and available for immediate occupancy by, an Eligible Household at an Affordable Rent.
3.3.2 Affordable Rent for Eligible Households. The Affordable Rent for Eligible Households shall not exceed the limits set forth in California Health and Safety Code Section 50053 and implementing regulations, which provide that the Affordable Rent shall not exceed thirty percent (30%) times thirty percent (30%) of the Median Income, as adjusted for family size appropriate to the unit. Affordable Rent shall comply with implementing regulations by HCD.
3.3.3 Affordable Rent Schedule. Prior to issuance of a Certificate of Occupancy for the Project, and on each anniversary of the issuance of the initial Certificate of Occupancy for the Project, Developer shall provide to the City the Affordable Rent Schedule, which City shall have not less than thirty (30) days to review and approve or disapprove, which approval shall not be unreasonably withheld.
4. OPERATION OF THE PROJECT BY DEVELOPER
4.1 Payment of Density Bonus Setup Fee . Developer shall pay a Density Bonus Setup Fee in the amount of $50,552.37 on or before building permit issuance. The City shall have no obligation to issue a building permit for the Project unless and until the Density Bonus Setup Fee is paid in full.
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4.2 Recording of Documents; Priority.
4.2.1 The terms and conditions of this Agreement are a condition for issuance of a building permit, and this Agreement is recorded to ensure tha t the Developer and subsequent successors in interest have notice of and comply with the requirements herein. Prior to issuance of building permits for the Project, Developer and the City shall record or cause to be recorded in the Official Records for Orange County, California, an executed original of this Agreement. City shall cooperate with Developer in promptly executing in recordable form this Agreement. The date of recording of the Agreement shall be the Effective Date of the Agreement. Upon the d ate of recording, the terms and conditions of this Agreement shall be binding upon and run with the Property and Project for the Term of this Agreement . It is the express intent and agreement between the Parties that this Agreement shall remain binding and enforceable against the Property, the Project, and the Units to ensure compliance with the State Density Bonus Law and City Density Bonus Law, and to ensure the continued supply of Affordable Units in the Project, except as expressly set forth in this Agreement.
4.2.2 The Agreement shall be recorded against the Property and have priority over those matters of public record, except as approved in writing by the City. For purposes of this paragraph, Developer shall provide the City with a preliminary title report for the Property dated not less than thirty (30) days , and updated as the City may reasonably request, prior to building permit issuance. Developer agrees and warrants that it will exercise reasonable efforts to obtain the consent or approval to a subordination agreement with any senior lienholders and that failure to obtain such consent or approval may constitute a default of this Agreement.
4.2.3 Notwithstanding the foregoing, the Developer may request the City approve subordination of certain provisions of this Agreement for a mortgage, deed of trust, or other form of secured financing to be obtained by Developer and necessary to finance all or any portion of the Project (each, a “Mortgage”), for the benefit of a beneficiary of the Mortgage (each, a “Mortgagee”). The Mortgage shall have priority over this Agreement only as set forth in a subordination agreement that complies with the requirements of this Section 4.2.3 and the conditions set forth herein (a "Permitted Subordination Agreement"). (a) A Permitted Subordination Agreement shall only be allowed if: (i) the Mortgagee requires a subordination agreement to provide the financing, (ii) the Mortgage is secured prior to issuance of a certificate of occupancy or, for conversion of a construction loan to permanent financing, the Mortgage is secured within one (1) year from issuance of a certificate of occupancy, provided the City Manager can approve an extension of time for conversion to permanent financing of one (1) additional year ; (iii) Developer or t he Mortgagee obtains the written approval of the City Manager (or the City Manager's designee), which shall not be unreasonably withheld, delayed or conditioned, prior to executing the Mortgage, and (i v) Developer, the Mortgagee, and City execute in recordable form a written subordination agreement (or other necessary document) that only subordinates those provisions in this Agreement that are not required to remain senior pursuant to this Section and acknowledges the Affordability Covenants, defined below, shall remain in senior priority. (b) Notwithstanding any provision to the contrary, no Permitted Subordination Agreement shall subordinate, impair, or otherwise affect any covenant, restriction, 55394.00101\44900944.3
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or obligation relating to the following (collectively, the "Af fordability Covenants"): (i) the affordability, occupancy, resale, or rent restrictions applicable to the Affordable Units or the Project and the Affordable Units; (ii) the City’s rights to enforce such restrictions, including all remedies; or (iii) any pr ovision required to be included in this Agreement pursuant to applicable local, state, or federal law.
(c) A Permitted Subordination Agreement shall explicitly provide that the Affordability Covenants remain senior to any Mortgage, shall run with the land, and shall be binding upon any Mortgagee and any purchaser or successor owner following foreclosure or deed- in-lieu of foreclosure.
(d) The City Manager (or the City Manager's designee) shall have the authority on behalf of City to execute a Permitted Subordination Agreement in such form as reasonably approved by the City Attorney. The City shall have not less than sixty (60) days to review a proposed Permitted Subordination Agreement, and any agreements or instruments for the Mortgage, and shall provide the De veloper with written notice of the approval or disapproval within sixty (60) days of receipt a proposed Permitted Subordination Agreement, or the request shall be deemed approved if the Permitted Subordination Agreement meets the requirements of this Section 4.2.3.
(e) In the event of any conflict between a Permitted Subordination Agreement and this Agreement, this Agreement shall control with respect to the Affordability Covenants.
4.3 Rental of Units. Upon the completion of construction of the Project and receipt by Developer of all required permits for the occupancy of the Units, Developer shall rent or cause to be rented each Affordable Unit to Eligible Households for the Affordability Term for such Affordable Unit in accordance with the terms and condition s set forth in this Agreement, which provide among other terms and conditions for the rental of each Affordable Unit at an Affordable Rent to an Eligible Household for the Affordability Term.
4.4 Occupancy Levels. Subject to state or federal laws and regulations, the number of persons permitted to occupy each Affordable Unit shall not exceed two persons per bedroom, plus one person. If an Eligible Household, during the terms of its tenancy, adds members that exceed the maximum occupancy allowed under this sec tion, Developer shall provide written notification informing the household that: it is over -occupancy; has been placed on a waiting list for up to one-hundred and eighty (180) days; the expiration date of the waiting list; and the terms for terminating the lease. A written status update will be provided to the household at one-hundred and twenty (120) days, ninety (90) days, sixty (60) days and thirty (30) days if applicable.
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 in compliance with the Project Approvals as rental housing, along with commercial space, amenity space, and parking . None of the Affordable Units in the Project, nor shall the Property or any portion thereof, ever be used as a hotel, motel, dormitory, 55394.00101\44900944.3
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fraternity or sorority house, rooming house, hospital, nursing home, sanitarium or rest home, or be converted to condominium ownership. All of the community facilities and any social programs provided to the Project’s residents shall be available on an equal, nondiscriminatory basis to residents of all Units at the Project.
4.6 Maintenance. Developer shall, at all times during the term of this Agreement, cause the Property and the Project to be maintained in a decent, safe and sanitary manner, regardless of cause of the disrepair. Developer shall be fully and solely responsible for costs o f maintenance, repair, addition and improvements. City, and any of its employees, agents, contractors or designees shall have the right to enter upon the Property at reasonable times and in a reasonable manner to inspect the Project, after providing notice as follows: (i) at least a 24-hour notice to Developer and Tenants of the Affordable Unit which will be inspected, or (ii) at least 48 hours’ notice to Developer, which shall promptly give notice to Tenants of the Affordable Unit to be inspected.
4.7 Affordable Rental Lease Agreement. Developer shall prepare and obtain City’s approval, which approval shall not be unreasonably withheld, conditioned or delayed, of a rental lease agreement for the Affordable Unit (“Affordable Unit Lease Agreement”) for the Affordable Unit. All Affordable Unit Lease Agreements must 1) identify the names and ages of all members of the household who will occupy the Affordable Unit; and 2) state that the Household’s right to occupy the Affordable Unit is subject to compliance with t he Median Income requirements, adjusted for family size appropriate to the unit, as periodically published by HCD. All Affordable Unit Lease Agreements must be consistent with the terms contained in this Density Bonus Agreement.
4.8 Selection of Tenants.
4.8.1 Developer shall be responsible for the selection of tenants for the Affordable Units in compliance with lawful and reasonable criteria and the requirements of this Agreement.
4.8.2 Local preference for Santa Ana residents and workers in tenant 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 in leasing the Aff ordable Units to households that live and/or work in the City of Santa Ana or who have an active Housing Choice Voucher issued by the Housing Authority of the City of Santa Ana or any other Public Housing Authority.
4.8.3 All applicants for Affordable Units will be screened and “lotterized.” A waiting list will be created from a lottery generated from the initial pool of rental applications.
The waiting list will track applicant name and contact information, lottery number (or designated number after the initial lottery), household income, household size, status of application, and any other information deemed necessary. The waiting list will be maintained as an electronic file and available for audit by the City of Santa Ana in accordance with resident selecti on procedures as set forth herein.
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4.8.4 Prior to the rental or lease of an Affordable Unit to a tenant(s), Developer shall require the tenant(s) to execute a written lease and to complete a Tenant Income Verification Form (in substantially the form attached h ereto as Exhibit B) certifying that the tenant(s) occupying the Affordable Unit is/are an Eligible Household and otherwise meet(s) the eligibility requirements established for the Affordable Unit. Developer shall verify the income of the tenant(s) as set forth herein.
4.8.5 The Developer may rent or lease an Affordable Unit(s) to a nonprofit organization or an entity affiliated with a nonprofit organization , provided that the nonprofit organization or entity is required as a condition of that lease (a "Master L ease") to sublease the Affordable Unit to an Eligible Household. The Master Lease shall be provided to the City, which shall have thirty (30) days to review and approve, which approval shall not be unreasonably withheld. Prior to the rental or lease of an Affordable Unit under a Master Lease, Developer shall require the lessee thereunder to require each prospective sub-tenant to complete a Tenant Income Verification Form (in substantially the form attached hereto as Exhibit B) certifying that the resident(s) occupying the Affordable Unit is/are an Eligible Household and otherwise meet(s) the eligibility requirements established for the Affordable Unit under this Agreement. If an Affordable Unit subject to a Master Lease is not rented within thirty (30) da ys, then the City shall have the right to require termination of the Master Lease or declare a default under this Agreement for failure to fully utilize the Affordable Unit . The Master Lease shall require compliance with this Agreement, and nothing in thi s paragraph or the Master Lease shall relieve Developer from compliance with the obligations of this Agreement.
4.9 Income Verification and Certification.
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 veri fication process: (1) obtain three months consecutive pay stubs for the most recent pay period, (2) obtain an income tax return for the most recent tax year, (3) obtain an income verification form from the applicant’s current employer, (4) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies, or (5) if the applicant is unemployed and has no such tax return, obtain anot her form of independent verification.
4.9.1 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 deter mination of Gross Household Income. The applicable sources of income are defined in California Code of Regulations Title 25 Housing and Community Development Section 6914.
4.9.2 Annual Recertification . Developer agrees to recertify or cause to be recertified household eligibility annually. Notification of Annual Tenant Recertification shall be sent to the household in substantially the form attached hereto as Exhibit C. An Annual Rental Housing Compliance Report (“Annual Compliance Report”) shall be sent by Developer to the City in substantially the form attached hereto as Exhibit D for City’s review and approval. The Annual Compliance Report shall be due to the City within 30 days of the anniversary of the 55394.00101\44900944.3
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commencement of the Affordability Term, which is the date that each building receives all required occupancy permits from the City.
4.9.3 Continued Income Qualification and Vacated Affordable Units . If the annual recertification demonstrates that a previously Eligible Household’s gross household income exceeds the allowed Median Income for the Affordable Unit, the Developer will be considered in compliance with this agreement so long as one of the following pertinent actions from the following list is taken:
(a) The Developer may offer to rent the unit to the previous ly, but no longer, Eligible Household as an Unrestricted Unit without any limitations on rental rates. In that case, the Developer must then make available for rent to an Eligible Household another unit within the Project that meets the size and location requirements for Affordable Units under this Density Bonus Agreement. If there are no vacant units meeting those requirements, then the next available unit within the Project which does meet those requirements must be rented to an Eligible Household.
(b) If t he no longer Eligible Household either moves to another Unrestricted Unit within the Project or leaves the Project altogether, then the vacated Affordable Unit, or, at Developer’s election, any other Unrestricted Unit within the Project which meets the size and location requirements for Affordable Units under this Density Bonus Housing Agreement and has the same number of bedrooms as the vacated unit, shall be rented as an Affordable Unit to an Eligible Household.
(c) Developer may proceed to terminate the tenancy and pursue any and all remedies in accordance with law or contract.
4.10 Monitoring and Recordkeeping . Throug hout the Term of this Agreement, Developer shall annually complete or cause to be completed and submit to City the Annual Compliance Report. Developer agrees to pay a reasonable fee, as set by City resolution, for the purpose of paying the actual costs associated with the City’s obligation to monitor Developer’s compliance with the affordability restrictions contained in this Agreement related to the Affordable Units, not to exceed monitoring costs for up to three (3) Affordable Units. Representatives of City shall be entitled to enter the Property if necessary after review of above documentation, upon at least forty-eight (48) hour notice, to monitor compliance with this Agreement, and shall be entitled to inspect the records of the Project relating to the Affordable Units and to conduct an independent audit or inspection of such records at a location within the City that is reasonably acceptable to the City without a fee from the City. Developer agrees to cooperate with City in making the Property and the records of the Project relating to the Affordable Unit reasonably available for such inspection or audit. Developer agrees to maintain or cause for the maintenance of each record of the Project for no less than five (5) years after creation of each such record, including the five-year period following the expiration of the Term of this Agreement.
Developer shall allow the City to conduct annual inspections of the Affordable Unit on the Property after the date of construction completion, with reasonable notice, which shall be at least twenty four (24) hours in advance, unless a shorter time is required in an emergency, to Developer of the Affordable Unit. Developer shall commence to cure or cause the commencement 55394.00101\44900944.3
14 2101 E. 4th Street Density Bonus Agreement
to cure any defects or deficiencies found by the City while conducting such inspections within ten (10) business days of written notice thereof, or such longer period as is reasonable within the sole discretion of the City.
Notwithstanding the foregoing in this Section 4.10, the City shall not charge a monitoring fee to the extent any such fee is not permitted under Government Code Section 65915.3.
4.11 Notice of Affordability Restrictions o n Transfer of Property . In the event the Developer wishes to sell or transfer the Project, during the Term of this Agreement, the City and the Developer shall execute and deposit into escrow, a Notice of Affordability Restrictions on Transfer of the Property, to be executed by the City and Developer in a form substantially similar to Exhibit E, which is attached hereto and must be executed by the parties prior to any transfer of the Property.
4.12 Emergency Evacuation Plan. Developer shall submit and obtain approval of an Emergency Evacuation Plan (the EEP) from City Police and Fire Protection agencies prior to issuance of a Certificate of Occupancy. Up -to-date 24-hour emergency contact information for the on-site personnel shall be provided to the City on an ongoing basis and the approved EEP shall be kept onsite and also be submitted to the following City Agencies:
(a) Police Department
(b) Fire Department
(c) Planning and Building Agency
(d) Community Development Agency
4.13 Crime Free Housing. Developer shall work with City staff to formalize a crime free housing policy, procedure, and design plan (the “CFH Plan”), which includes the following provisions:
(a) Requiring parking areas and common interior areas (lobbies, elevators, etc.) to contain security cameras;
(b) Requiring routine unit inspections;
(c) Ensuring lobby/other entrance doors are secured and accessed via remote controls, fobs, etc.; and
(d) Have policies in place to ensure that common use areas such as hallways and trash enclosures are maintained in good condition and repair (e.g., well- lit, kept clean, etc.).
Developer shall submit and obtain approval from the City’s Planning and Building Agency (“PBA”) that the CFH Plan meets the requirements of this Subsection 4. 13 prior to 55394.00101\44900944.3
15 2101 E. 4th Street Density Bonus Agreement
issuance of the Certificate of Occupancy. The approved CFH Plan shall be implemented and administered by Developer or its designated property manager.
4.14 Onsite Parking Management Plan . Developer shall provide onsite parking for residents and visitors of the Project and ac tively monitor the parking demand of the Project site.
Developer shall continually monitor and take the following 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.
(a) Requiring onsite parking permits (such as stickers or hang-tags) for any parking in the onsite parking spaces for both residents and guests; (b) Policies for maximum time vehicles may be parked in the surface parking spaces, including any guest parking; and
(c) Policies for towing unauthorized vehicles, vehicles parked in unauthorized locations (such as fire lanes), vehicles parking in surface guest parking without a sticker, hang-tag, or other identifiers, and vehicles parked longer than any maximum guest parking timeframes allowed.
Prior to issuance of the Certificate of Occupancy, Developer shall submit and obtain approval from the PBA a Parking Management Plan (the “PMP”) including those measures above.
The approved PMP shall be adhered to and be enforced by the Project at all times.
4.15 Marketing and Resident Selection Plan.
4.15.1 Each Affordable Unit shall be leased to Eligible Households selected by Developer who meet all of the requirements provided herein. Prior to Certificate of Occupancy, Developer shall prepare and obtain City’s approval of a marketing program and resident selection plan for the leasing of the Affordable Units at the Project (“Marketing Program”). The leasing of the Affordable Units shall thereafter be marketed in accordance wit h 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 leasing of the Housing Units.
4.15.2 The Marketing Program shall include , but is not limited to, marketing and community outreach activities, proposed tenant selection criteria, occupancy standards, income requirements, timeline and details for outreach and marketing, data collection, record keeping and monitoring, procedures for complaints, and compliance assessment. Components of the resident selection plan shall include, but are not limited to, the application process, interview procedure, apartment offer and assignment, rejected applications, and wait list management. All requirements set forth herein shall be incorporated in the Marketing Program.
5. TERM OF THIS AGREEMENT
5.1 Term. The term of this Agreement ("Term") shall commence on the Effective Date and shall continue until the expiration of the Affordability Term for all Affordable Units, as set forth in Section 3.1, above.
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16 2101 E. 4th Street Density Bonus Agreement
6. DEFAULT AND TERMINATION; INDEMNIFICATION
6.1 Default. Failure or delay by any Party to perform any term or provision of this Agreement, which is not cured within thirty (30) days after receipt of notice from the other Party specifying the default (or such other period specifically provided herein), constitutes a default under this Agreement; provided, however, if such default is of the nature requiring more than thirty (30) days to cure, the defaulting Party shall avoid default hereunder by commencing to cure within such thirty (30) day period, and thereafter diligently pursuing such cure to completion within an additional sixty (60) days following the conclusion of such thirty (30) day period (for a total of ninety (90) days). Except as required to protect against further damages, the injured Party may not institute proceedings against the Party in default until the time for cure has expired.
Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default.
Notwithstanding the above, should the Developer elect to not proceed with the Project prior to commencement of construction, the Developer shall submit written notice of such termination (“Termination Letter”) to the City , which Developer, for itself, its successors and assigns, states that it waives, forfeits, and relinquishes any and all benefits under this Agreement .
Upon City ’s receipt of the Termination Letter, the Parties agree to termin ate this Agreement , except that the obligations of Section 4.1 and 6.4, if any, shall survive termination. Developer shall, at its sole cost and expense, prepare and record a Termination of Agreement , which City shall review and approve, in the exercise of reasonable discretion. Such termination shall not be considered a default by any Party, but it shall result in a termination of the Agreement as provided for herein.
6.2 City's Remedies. In the event of a Default, the City shall have all rights and remedies available at law, and may seek any or all of the following remedies:
6.2.1 Any individual who sells or rents (including subleasing) an Affordable Unit in violation of the provisions of this Agreement shall be required to forfeit to City all monetary amounts so obtained.
6.2.2 City may exercise any rights or institute any appropriate legal actions or proceedings necessary to ensure compliance with this Agreement, including but not limited to:
(a) Actions to revoke, deny or suspend any permits and/or certificate of occupancy; and
(b) Actions for injunctive relief or damages.
6.3 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 th e 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. 55394.00101\44900944.3
17 2101 E. 4th Street Density Bonus Agreement
6.4 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 claims, demands, or causes of action ar ising from or related to this Agreement, including the approval thereof, except to the extent caused by the active negligence or willful misconduct of Indemnitees.
7. ASSIGNMENT; COVENANTS RUN WITH THE LAND
7.1 Assignment by Developer.
7.1.1 Transfers or Assignments. 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, unless the sale, transfer, or assignm ent complies with this Section 7. If Developer seeks to sell, transfer, or assign the Property or Project, or any rights and obligations in this Agreement, Developer shall provide City with written notice of such proposed sale, transfer, or assignment not less than sixty (60) days prior to the proposed closing date, together with reasonable documentation demonstrating that the proposed transferee or assignee has the qualifications and financial capacity to perform the obligations of the Agreement . City shall have sixty (60) days from receipt of such notice and docu mentation to review the proposed sale, transfer, assignment, or other action requiring City's approval hereunder. City may object to the proposed transfer only if the proposed transferee or assignee lacks the qualificatio ns or financial capacity to perform the obligations of this Agreement, or if Developer is in default of the obligations under this Agreement . Any objection by City must be delivered to Developer in writing within the sixty (60) day period, specifying with reasonable particularity the basis for such objection. City’s failure to respond to the notice within sixty (60) days shall be deemed approval of the proposed transfer. In connection with any such sale, transfer, or assignment, Developer shall pay City’s reasonable fees as compensation for the City’s review of the request.
7.1.2 Sale of Property. Developer agrees and declares that the Property and the Project shall be held, conveyed, mortgaged, encumbered, leased, rented, used, occupied, operated, sold, and app roved subject to all obligations set forth or incorporated in this Agreement, all of which are for the purpose of enhancing and protecting the value and attractiveness of the Property and the Project. All of the obligations set forth or incorporated in this Agreement shall constitute covenants which run with the land and shall be binding on Developer and its successors and assigns, and all parties having or acquiring any right, title or interest in, or to any part of the Property or Project. Developer further understands and agrees that the 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 lease and rent the Affordable Units in accordance with the terms and conditions stipulated in Sections 4, 5 and 6 of this Agreement for a term of fifty five ( 55) consecutive years commencing upon the date that the Project is first occupied.
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18 2101 E. 4th Street Density Bonus Agreement
7.1.3 Subsequent Assignment. As used in this Agreement, the term "Developer" shall be deemed to include any such transferee or assignee after the date such sale, transfer, or assignment occurs in compliance with this Agreement.
7.1.4 Unpermitted Sale, Transfer, or Assignment. City shall have the right to pursue any right or remedy at law or in equity regarding sales, transfers, or assignments in violation of this Agreement, including an order for rescission or termination of the actions in violation of this Agreement.
7.2 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 express ly agree that this Agreement and the covenants herein shall run 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 pro tecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. Developer hereby declares its understanding and intent that the bur den 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 agreement provides a public benefit in furtherance of 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.
8. MISCELLANEOUS
8.1 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 of the Project, and there are no oral or written representations, unders tandings 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.
8.2 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, or its designee, as detailed herein, and signed on behalf of each party. Subject to and consistent with the Santa Ana Municipal Code and the Project Approvals, 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 that further the intent of this Agreement. In accordance wi th the Santa Ana Municipal Code, or as set forth in the Project Approvals, the City Council or , as applicable, the Planning 55394.00101\44900944.3
19 2101 E. 4th Street Density Bonus Agreement
Commission, shall approve an amendment to this Agreement for any change to the Project that would be inconsistent with or in conflict with the Project Approvals, including but not limited to any request to change the number of Affordable Units or the affordability requirements set forth in Sections 3, 4 and 5 of this Agreement. Any requested alteration, change or modification of the Agreement by Developer shall require the payment of fees or deposit by Develop er to City, as applicable, for the City’s review of the request. Each alteration, change, or modification to this Agreement shall be recorded against the Property in the Official Records.
8.3 Notices.
8.3.1 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 giv en 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 confirmatio n of delivery from the delivery service provider; or (v) the first business day following the date of transmittal of any facsimile, provided confirmation of successful transmittal is retained by the sending Party; or (vi) upon transmission thereof (as evidenced by the recipient’s reply to such notice or other competent evidence of actual receipt) if transmitted by electronic transmission (email), provided that a copy of such notice is concurrently sent by first-class mail postage prepaid. All notices shall be addressed as follows:
If to City: City of Santa Ana
Community Development Agency
20 Civic Center Plaza (M-26)
P.0. 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: Think Together, a California nonprofit corporation 2101 East 4th Street, Suite #200B
Santa Ana, CA 92705
With a copy to: Randy Barth, Chief Executive Officer
Think Together, a California nonprofit corporation
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20 2101 E. 4th Street Density Bonus Agreement
2101 East 4th Street, Suite #200B
Santa Ana, CA 92705
8.3.2 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.
8.4 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 r emaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement.
8.5 Interpretation and Governing Law. This Agreement and any dispute hereunder shall be governed and interpreted in accordance with the laws of the State of California without regard to conflict of law principles. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construc tion 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.
8.6 Section Headings . All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
8.7 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.
8.8 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 Dev eloper, 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.
8.9 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
8.10 Computation of Days . Unless otherwise specified in this Agreement or any Exhibit attached hereto, use of the term "days" shall mean calendar days. For purposes of this Agreement and all Exhibits attached here to, "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.
8.11 Waiver. Failu re 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. 55394.00101\44900944.3
21 2101 E. 4th Street Density Bonus Agreement
8.12 Non-Discrimination. In performing its obligations under this Agreement, Developer shall not discriminate because of race, color, creed, religion, sex, gender, gender identity, gender expression, marital status, sexual orientation, familial status, source of income, veteran or military status, age, national origin, ancestry, disability or genetic information , as defined and prohibited by applicable law, in th e 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.
8.13 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.
8.14 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, 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 beyond the Party's control, including delays by any governmental entity (although the City may not benefit from this provision fo r 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.
8.15 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.
8.16 Successors in Interest . The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all permitted successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and (c) is binding upon each Party and each successor in interest approved pursuant to this Agreement during ownership of the Property or any portion thereof.
8.17 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.
8.18 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 sh all be filed and tried in the Superior Court of the County of Orange, State of California, or to the extent allowed by law, in the federal court district covering the City, and the Parties hereto waive all provisions of law providing for the filing, remova l or change of venue to any other court.
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22 2101 E. 4th Street Density Bonus Agreement
8.19 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 o f 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 thi s Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property and the Developer of such property.
8.20 Further Actions and Instruments . Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and in the satisfaction of the Project and conditions of this Agreement. Upon the request of either Party at any tim e, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or the Project or to evidence or consummate the transactions contemplated by this Agreement. City hereby authorizes City Manager to take such other actions and negotiate and execute any additiona l agreements or amendments to this agreement as may be reasonably necessary or proper to fulfill the City's obligations under this Agreement. The City Manager may delegate her or his powers and duties under this Agreement to an authorized management level employee of the City.
8.21 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 unmodi fied 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.
8.22 No Subordination. City's approval of the necessary land use entitlements that authorize Developer to develop, operate, and maintain the Project was based upon Developer's obligation to provide the Affordable Units pursuant to the State Density Bonus Law, City Density Bonus for Affordable Housing, and the terms and conditions of this Agreement. For the duration of the Term, this Agreement shall have priority over any and all mortgages, deeds of trust, and other similar forms of secured financing recorded against t he 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.
Notwithstanding the foregoing, the City Manager may approve a Subordination Agreement based on the limited terms and conditions set forth in Section 4.2.3.
8.23 Attorneys' Fees and Costs . If either Party to this Agreement commences an action against the other Party to this Agreement arising out of or i n connection with this 55394.00101\44900944.3
23 2101 E. 4th Street Density Bonus Agreement
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.
8.24 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}
55394.00101\44900944.3
Exhibit A to
2101 E. 4th Street Density Bonus Agreement
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 2, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON PARCEL MAP NO. 744, FILED IN BOOK 46, PAGE 18 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 400-041-03
55394.00101\44900944.3
Exhibit B to
2101 E. 4th Street Density Bonus Agreement
EXHIBIT B
TENANT VERIFICATION
[SEE FOLLOWING PAGES]
55394.00101\44900944.3
Exhibit C to
2101 E. 4th Street Density Bonus Agreement
EXHIBIT C
ANNUAL TENANT RECERTIFICATION
[SEE FOLLOWING PAGES]
55394.00101\44900944.3
Exhibit D to
2101 E. 4th Street Density Bonus Agreement
EXHIBIT D
ANNUAL RENTAL HOUSING COMPLIANCE REPORT
[SEE FOLLOWING PAGES]
55394.00101\44900944.3
Exhibit E to
2101 E. 4th Street Density Bonus Agreement
EXHIBIT E
FORM OF NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF
PROPERTY
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 [ADDRESS], California (APN XXXXXX) (hereafter, the "Property") 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 hereafter as “City”), and ______________ (“Developer/Property Owner”) have entered into that certain Density Bonus Housing Agreement With Declaration of Covenants, Conditions and Restrictions, dated as of ______, 2026 (“Density Bonus Housing Agreement”).
1. The Density Bonu s 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 pu blic 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 r estrictions on the transfer of the Property.
55394.00101\44900944.3
Exhibit E to
2101 E. 4th Street Density Bonus Agreement
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 must comply with the affordability covenants limiting the occupancy and rental of the Affordable Units as set forth in the Density Bonus Housing Agreement ; 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 4.11 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 (E xhibit E). 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, and an assignment and assumption of the terms and conditions of the Density Bonus Housing Agreement. 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 the Density Bonus Housing Agreement. The Notice of Intent to Transfer shall include the identity of the proposed Transferee and any other information reasonably necessary for the City to evaluate the proposed Transfer.
b. Qualification of Proposed Transferee. The City shall have the right to review the qualifications of the proposed Transferee for the limited purpose of determining whether the prop osed Transferee has the financial capacity and operational experience to comply with the affordability and maintenance obligations under the Density Bonus Housing Agreement . City shall complete its review and notify Developer/Property Owner of its determin ation within 60 days after receipt of all information reasonabl y requested by City. If City fails to notice 55394.00101\44900944.3
Exhibit E to
2101 E. 4th Street Density Bonus Agreement
Developer/Property Owner of its determination within such 60- day period, the proposed Transferee shall be deemed qualified.
c. Developer/Property Owner 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, unless the sale, transfer, or assignment complies with Section 7 of the Density Bonus Housing Agreement. If Developer seeks to sell, transfer, or assign the Property or Project, or any rights and obligations in the Density Bonus Housing Agreement, Developer shall provide City with written notice of such proposed sale, trans fer, or assignment not less than 60 days days prior to the proposed closing date, together with reasonable documentation demonstrating that the proposed transferee or assignee has the qualifications and financial capacity to perform the obligations of the Density Bonus Housing Agreement. City shall have 60 days from receipt of such notice and documentation to review the proposed sale, transfer, assignment, or other action requiring City's approval hereunder. City may object to the proposed transfer only i f the proposed transferee or assignee lacks the qualifications or financial capacity to perform the obligations of this Agreement, or if Developer is in default of the obligations under this Agreement. Any objection by City must be delivered to Developer in writing within the 60-day period, specifying with reasonable particularity the basis for such objection. City’s failure to respond to the notice within sixty (60) days shall be deemed approval of the proposed transfer. In connection with any such sale, transfer, or assignment, Developer shall pay City’s reasonable fees as compensation for the City’s review of the request.
d. Certificates from Parties. Developer/Property Owner and proposed Transferee each shall certify in writing, in a form reasonably acceptable to City, that the Transfer shall be closed in accordance with the terms of the approved assignment and assumption agreement. The written certificate shall also include a provision that in the event a Transfer is made in material violation of the terms of the Density Bonus Housing Agreement, or materially false or misleading statements are knowingly made in any documents or certificate submitted to City for its approval of the Transfer, City shall have the right, after providing written notice and a reasonable opportunity to cure, to file an action seeking remedies available at law or in equity.
d. 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, 55394.00101\44900944.3
Exhibit E to
2101 E. 4th Street Density Bonus Agreement
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.
5. The commonly known addresses for the Property [ADDRESS].
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 wha tsoever 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). 55394.00101\44900944.3
Exhibit E to
2101 E. 4th Street Density Bonus Agreement
DEVELOPER/ PROPERTY OWNER:
Think Together, a California nonprofit
corporation
By:
Printed Name: Randy Barth
[Signature to be acknowledged]
THE CITY OF SANTA ANA,
By:________________________________
Executive Director
ATTEST:
______________________________
APPROVED AS TO FORM:
SONIA R. CARVALHO, City Attorney
By: ________________________
Dated: