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<br />7 <br />9138-126780\1517029.2 <br />of non-responsibility and any other notices as may be appropriate upon a filing of a mechanic's <br />lien. In addition to any other indemnity provided by Developer under this Agreement, Developer <br />shall indemnify, defend (with counsel of City’s choosing and the consent of Developer, which <br />shall not be unreasonably withheld - and which may be joint defense counsel upon City's and <br />Developer's consent), and hold harmless City and all of its officials, officers, employees, <br />representatives, volunteers and agents from any and all alleged or actual claims, causes of action, <br />liabilities, and damages from any third party by reason of a mechanic's lien or work, labor, services, <br />or materials supplied or claimed to have been supplied to Developer or caused by, at the direction <br />of, or on behalf of, Developer. <br /> <br />3. AFFORDABILITY <br /> <br />3.1 Total Affordability Term. Each Affordable Unit shall be restricted to use and <br />occupancy by an Eligible Household for a total period of no less than fifty-five (55) years ("Total <br />Affordability Term"). The Total Affordability Term for an Affordable Unit shall commence on <br />the date that the building in which the Affordable Unit is located receives all required occupancy <br />permits from the City. <br /> <br />3.2 Memorializing Commencement of Total Affordability Term. Developer shall keep <br />or cause to be kept detailed records of the commencement date of the Total Affordability Term for <br />each Affordable Unit. City shall have the right to review and verify said records without a fee <br />from City to Developer to ensure that the commencement date specified by Developer for an <br />Affordable Unit coincides with the date that the initial Affordable Unit received all permits from <br />City required for occupancy of the Unit. In the event that a conflict exists between the date <br />specified by Developer for the commencement of the Total Affordability Term for an Affordable <br />Unit and the date specified by City's issuance of all required permits for occupancy of the Unit, <br />the date specified by City's issuance of all required permits for occupancy of the Unit shall control. <br /> <br />3.3 Levels of Affordability. <br /> <br />3.3.1 Extremely-Low Income Tenants. Subject to the terms of Section 5, <br />Developer covenants that no less than forty-seven (47) Affordable Units in the Project shall at all <br />times during the Density Bonus Housing Agreement Term be rented to, or held vacant and <br />available for immediate occupancy by Extremely-Low Income Tenants, at an Affordable Rent. <br /> <br />4. OPERATION OF THE PROJECT BY DEVELOPER <br /> <br />4.1 Payment of Density Bonus Setup Fee. Prior to the Effective Date, Developer <br />delivered payment to City of the required density bonus setup fee in the amount of one-eighth <br />(1/8th) of one percent (1%) of the total estimated construction budget for the Project. <br /> <br />4.2 Recording of Documents. No later than issuance of building permits for the Project, <br />Developer and the City shall record or cause to be recorded in the Official Records for Orange <br />County, California, an executed original of this Agreement. City shall cooperate with Developer <br />in promptly executing in recordable form this Agreement. The date of recording of the Agreement <br />shall be the Effective Date of the Agreement. Upon the date of recording, the terms and conditions <br />EXHIBIT 5