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community and other patties, public or private, in whose favor and for whose benefit this <br />Agreement and the covenants running with the land have been provided. Developer and Tenant <br />hereby declare their understanding and intent that the burden of the covenants set forth herein <br />touch and concern the land and that the Tenant's interest, and Developer's interest, if any, in the <br />Leased Property is rendered less valuable thereby. Tenant and Developer hereby further declare <br />their understanding and intent that the benefit of such covenants touch and concern the land by <br />enhancing and increasing the enjoyment and use of the Leased Property by the citizens of City <br />and by furthering the health, safety, and welfare of the residents of City. <br />3.The Parties agree that the legal description set forth in Exhibit A of the DBA shall <br />be deemed a reference to the leasehold interest in the Property and the Ground Lease establishing <br />the Leased Propetty, and all rights and interests granted therein. <br />4. Tenant hereby affirms that it agrees and assumes all obligations of Developer as <br />set forth in the OBA, and that Tenant is bound by the DBA, as amended herein, for all <br />obligations of the Developer as set fotth in the DBA. <br />5.Tenant and Developer each agree, for themselves and their respective successors <br />and assigns that the entitlements and concessions set forth in the DBA are conditioned on the <br />Ground Lease continuing in effect for a period of at least fifty five (55) years from the initial date <br />of occupancy, as required by California Government Code § 65915 ("Statutory Affordability <br />Period"). In the event the Ground Lease is terminated prior to the Statutory Affordability Period, <br />or the Prope1ty is not operated in accordance with the affordability requirements for the duration <br />of the Statutory Affordability Period, then the Project shall be in violation of the conditions of <br />entitlement granted by the City, and the City shall have all rights and remedies available under <br />law or equity. <br />6.Developer and Tenant agree to defend (with counsel of City's choosing), <br />indemnify and hold harmless the City and its respective officers, officials, agents, employees, <br />representatives, and volunteers ( collectively, "Indemnitees") from and against any loss, liability, <br />claims, or judgment arising fr om any act or omission of Developer or Tenant in connection with <br />its obligations under the OBA or this Amendment, except to the extent caused by the active <br />negligence or willful misconduct of lndemnitees. <br />7.Except as amended herein, the DBA shall otherwise remain in full force and <br />effect. The Patties hereby agree that this Amendment shall not constitute a no vat ion of the DBA, <br />and that this Amendment shall not affect the priority of the DBA as an encumbrance against the <br />Leased Propetty as compared to liens or other encumbrances on the Property or Leased Property <br />subsequent to the DBA. <br />8.This Amendment may be executed in one or more counterparts and as so executed <br />shall constitute a single instrument. <br />[Signatures on fo I lowing page] <br />-3-KH I I 12350.3 EXHIBIT 1