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HomeMy WebLinkAboutC & C N. HARBOR, LLC-2015RECORDING REQUESTED BY TICOR Tli LE TUSTIN•ORANGE CO. BRANCH bo3tx16()S - 5 V RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder I IIIIII IIIIIIIIIIIIIIIIIIIIIII IIIIIIIIIIIII III IIIII$11IIII III III NO FE *$ R 0 0 0 7 7 6 2 5 9 3$ 2015000426303 2:51 PM 08114/15 63 404 Al2 22 0.00 0.00 0.00 0.00 63.00 0.00 0.00 0.00 City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92702 Attention: City Clerk N-Z01,5 _0345 To be recorded without fee. (Space Above This Line For Recorder's Use Only) (Government Code, §§ 6103 and 27383) INCLUSIONARY HOUSING AGREEMENT THIS INCLUSIONARY HOUSING AGREEMENT is dated as of :T� Is'� , 2015, by and between the CITY OF Santa Ana, a charter city and California municipal corporation, and C&C N. Harbor, LLC a California limited liability company ("Developer"). RECITALS A. The City's Inclusionary Housing Ordinance ("Ordinance") became effective on November 28, 2011. B. The Developer is the fee owner of the Property located at 1206-1310 N. Harbor Boulevard, Santa Ana, California. C. The Developer desires to, at the Developer's sole cost and expense, develop a one -hundred and ten (110) unit Project on the Property. D. On February 3, 2015, the City Council approved Ordinance/Resolution Number 2015-02, which sets forth the City Approvals for the Project. E. On February 17, 2015, the Santa Ana City Council reviewed and approved an Inclusionary Housing Plan that was prepared by the Developer in accordance with the requirements imposed by the Ordinance and the Administrative Procedures Manual established by the City Council to implement the Ordinance requirements. Inclusionary Housing Agreement Page 1 RECORDING REQUESTED EY TICORTIILE A 2015-035 TUSTIN-ORANGE CO. BRANCH 00SCgIIS-S?? RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92702 Attention: City Clerk 1\-2015 _.63!5 To be recorded without fee. (Space Above This Line For Recorder's Use Only) (Government Code, §§ 6103 and 27383) INCLUSIONARY HOUSING AGREEMENT THIS INCLUSIONARY HOUSING AGREEMENT is dated as of ZnAW I1'E , 2015, by and between the CITY OF Santa Ana, a charter city and California municipal corporation, and C&C N. Harbor, LLC a California limited liability company ("Developer"). RECITALS A. The City's Inclusionary Housing Ordinance ("Ordinance") became effective on November 28, 2011. B. The Developer is the fee owner of the Property located at 1206-1310 N. Harbor Boulevard, Santa Ana, California. C. The Developer desires to, at the Developer's sole cost and expense, develop a one -hundred and ten (110) unit Project on the Property. D. On February 3, 2015, the City Council approved Ordinance/Resolution Number 2015-02, which sets forth the City Approvals for the Project. E. On February 17, 2015, the Santa Ana City Council reviewed and approved an Inclusionary Housing Plan that was prepared by the Developer in accordance with the requirements imposed by the Ordinance and the Administrative Procedures Manual established by the City Council to implement the Ordinance requirements. Inclusionary Housing Agreement Page 1 City of Santa Ana February 17, 2015 1603\14\1654522.2 F. Pursuant to Santa Ana Municipal Code section 41-1904(c)(2), any application to pay a fee in lieu of constructing some or all of the required inclusionary units for a project comprised of more than twenty residential units shall be subject to the review and approval of the City Council, which may grant such request if substantial evidence supports a finding that the cost of providing inclusionary units on site would substantially exceed the amount of the applicable in -lieu fee. G. This Inclusionary Housing Agreement, when fully executed by the City and the Developer and recorded, is intended to satisfy the requirement that the Developer enter into an Inclusionary Housing Agreement, as set forth in the Ordinance and the conditions to City Approvals. NOW, THEREFORE, in consideration of the mutual promises set forth in this Inclusionary Housing Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the City and the Developer, the Parties, agree as follows: DEFINITIONS OF TERMS The following words, terms and phrases are used in this Inclusionary Housing Agreement, as follows, unless the particular context of usage of a word, term or phrase requires another interpretation. Administrative Procedures Manual is this administrative procedures manual, which has been prepared by the City for the implementation and enforcement of the Ordinance. A copy of the Administrative Procedures Manual shall be maintained on file with the City, and shall be provided to the Developer. Affordability Gap is equal to the difference between the Fair Market Value of the Inclusionary Unit and the Affordable Sales Price for the Inclusionary Unit. Affordable Housing Cost means the maximum costs that can be borne by a Low or Moderate Income Household based on the requirements imposed by HSC Section 50052.5. The calculation methodology is described in the Administrative Procedures Manual. Inclusionary Housing Agreement Page 2 City of Santa Ana February 17, 2015 16=1411654522.2 California Health and Safety Code ("HSC") provides definitions of household income and affordable housing costs that are used in this Inclusionary Housing Agreement. City means the City of Santa Ana, California. City Approvals are defined as the entitlement approvals and the Inclusionary Housing Plan that must be approved by the City Council prior to the issuance of building permits for the Project. City Council means the City of Santa Ana City Council. City Manager is the City Manager of the City of Santa Ana. Default means the failure of a Party to perform any action or covenant required by this Inclusionary Housing Agreement within the time period provided herein following notice and opportunity to cure, as set forth in Article 3 — Section 1 of this Inclusionary Housing Agreement. Developer means the developer of the residential project that is subject to this Inclusionary Housing Agreement and its successors and assigns. Effective Date means the date on which the Inclusionary Housing Agreement is approved and executed by appropriate authorities of the Developer and the City; and the Inclusionary Housing Agreement is executed by the authorized representatives of the City and delivered to the Developer. Exhibits means the exhibits to this Inclusionary Housing Agreement, which are listed in Article V. Fair Market Value means the value of the Inclusionary Unit under normal circumstances in which the seller and the buyer freely negotiate the terms of the transfer of ownership. The Fair Market Value is estimated based on the assumption that no income or affordability restrictions are placed on the Inclusionary Unit. Gross Income means all income from whatever source from all adult household members for the previous calendar year as defined in California Code of Regulations Title 25 Housing and Community Development Section 6914. The definition includes the following specific requirements: Indusionary Housing Agreement Page 3 City of Santa Ana February 17, 2015 1603\14\1654522.2 1. Except as provided in subdivision (2), all payments from all sources received by the head of household (even if temporarily absent) and each additional member of the household who is not a minor shall be included in the annual income of a household. Gross Income shall include, but not be limited to: a. The gross amount, before any payroll deductions, of wages and salaries, overtime pay, commissions, fees, tips and bonuses; b. The net income from operation of a business or profession or from rental or real or personal property (for this purpose, expenditures for business expansion or amortization of capital indebtedness shall not be deducted to determine the net income from a business); C. Interest and dividends; d. The full amount of periodic payments received from social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of periodic receipts (but see subdivision (2)(c)); e. Payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay. f. Public Assistance. If the public assistance payment includes an amount specifically designated for shelter and utilities which is subject to adjustment by the public assistance agency in accordance with the actual cost of shelter and utilities, the amount of public assistance income to be included as income shall consist of: The amount of the allowance or grant exclusive of the amount specifically designated for shelter and utilities, plus ii. The maximum amount which the public assistance agency could in fact allow for the household for shelter and utilities, g. Periodic and determinable allowances such as alimony and child support payments, and regular contributions or gifts received from persons not residing in the dwelling; Indusionary Housing Agreement Page 4 City of Santa Ana February 17, 2015 1603\14\1654522.2 h. All regular pay, special pay and allowances of a member of the Armed Forces (whether or not living in the dwelling) who is head of the household or spouse (but see subdivision (2)(e)). i. Where a household has net assets in excess of $5,000, income shall include the actual amount of income, if any, derived from all of the net household assets or 10 percent (10%) of the value of all such assets, whichever is greater. For purposes of this section, net households assets means value of equity in real property other than the household's full-time residence, savings, stocks, bonds, and other forms of capital investment. The value of necessary items such as furniture and automobiles shall be excluded. 2. The following items shall not be considered as income: a. Casual, sporadic or irregular gifts; b. Amounts which are specifically for or in reimbursement of the cost of medical expenses; C. Lump -sum additions to household assets, such as inheritances, insurance payments (including payments under health and accident insurance and worker's compensation), capital gains and settlement for personal or property losses; d. Amounts of educational scholarships paid directly to the student or to the educational institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees, books and equipment. Any amounts of such scholarships, or payments to veterans not used for the above purposes of which are available for subsistence are to be included in income; e. The special pay to a serviceman head of a household away from home and exposed to hostile fire; f. Relocation payments made pursuant to federal, state, or local relocation law; g. Foster child care payments; Indusionary Housing Agreement Page 5 City of Santa Ana February 17, 2015 1603\14\1654522.2 h. The value of coupon allotments for the purchase of food pursuant to the Food Stamp Act of 1964 which is in excess of the amount actually charged the eligible household; i. Payments received pursuant to participation in the following volunteer programs under the ACTION Agency: i. National Volunteer Antipoverty Programs which include VISTA, Service Learning Programs and Special Volunteer Programs. ii. National Older American Volunteer Programs for persons aged 60 and over which include Retired Senior Volunteer Programs, Foster Grandparent Program, Older American Community Services Program, and National Volunteer Program to Assist Small Business Experience, Service Corps of Retired Executive (SCORE) and Active Corps of Executives (ACE). HCD means the California Department of Housing and Community Development. HUD means the United States Department of Housing and Urban Development. Inclusionary Housing Administrator has the day-to-day authority for making determinations related to the Ordinance and Administrative Procedures Manual. The Inclusionary Housing Administrator will be appointed by the City Manager. Inclusionary Housing Fund means a separate fund of the City established pursuant to the Housing Opportunity Ordinance of the Santa Ana Municipal Code. The fund was established for the specific purpose of providing the City with funds to assist in the development of housing that is affordable to Low and Moderate Income Households. The allowable uses of Inclusionary Housing Funds, and the related reporting are described in the Administrative Procedures Manual. Inclusionary Housing Plan means an in -lieu fee submitted for approval to the Inclusionary Housing Administrator that details the manner in which the Inclusionary Housing obligations will be fulfilled by the project. The Inclusionary Housing Plan form is presented in the Administrative Procedures Manual. Inclusionary Housing Agreement Page 6 City of Santa Ana February 17, 2015 1603\14\1654522.2 In -Lieu Fee refers to a fee that may be paid by a developer in specific circumstances in lieu of providing Inclusionary Units within a project. Orange County Median Income is calculated by HCD using non -aggregated census income data and applying trending factors for metropolitan statistical areas (MSA) throughout the country. The MSA for Santa Ana is Orange County. The current household income information is presented in Attachment I of the Administrative Procedures Manual. Low Income Household refers to households whose incomes meet the standards defined Title 25 of the California Code of Regulations Section 6932, and by the HSC Section 50079.5. The maximum household income amount for Low Income Households shall be the amount published by HCD as adjusted to reflect the household size of the Homebuyer of the Inclusionary Unit. Market Rate Unit means any unit in the project that is not restricted for ownership and occupancy by Eligible Purchaser. Moderate Income Household refers to households whose income meets the standards defined Title 25 of the California Code of Regulations Section 6932, and by the HSC Section 50093. The maximum household income amount for Moderate Income Households shall be the amount published by HCD as adjusted to reflect the household size of the Homebuyer of the Inclusionary Unit. Ordinance means the Housing Opportunity Ordinance adopted by the City Council on November 28, 2011 as it has been amended from time to time, which is codified in the Santa Ana Municipal Code. Party and Parties mean the City and the Developer as parties to this Inclusionary Housing Agreement. Project means the housing project proposed to be developed on the Property at the Developer's sole cost and expense. Property means the real property on which the Project is to be developed, for which the legal description is provided in Exhibit A to this Inclusionary Housing Agreement. ARTICLE 1 Inclusionary Housing Agreement Page 7 City of Santa Ana February 17, 2015 1603114N 654522.2 PARTIES; REPRESENTATIONS AND WARRANTIES; EFFECTIVE DATE; RECITALS; AND EXHIBITS I. Parties to the Inclusionary Housing Agreement -A. City. The City is a charter city and California municipal corporation. The address of the City, for the purposes of this Inclusionary Housing Agreement, is: City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92702 Attention: Executive Director, Community Development Agency -B. Developer. The Developer is a California limited liability company. The principal office and address of the Developer, for the purposes of this Inclusionary Housing Agreement, is: C&C N. Harbor, LLC 14211 Yorba St., Ste. 200 Tustin, CA 92780 Attn: Todd Cottle II. Developer Representations And Warranties The representations and warranties of the Developer contained in Article 1 — Section II shall be based upon the actual knowledge of the Developer as of the Effective Date, and are true and correct as of the Effective Date. The Developer's liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Inclusionary Housing Agreement, shall survive the execution and delivery of the Inclusionary Housing Agreement. The Developer hereby makes the following representations, covenants and warranties, and Developer acknowledges that the execution of this Inclusionary Inclusionary Housing Agreement Page 8 City of Santa Ana February 17, 2015 1603\14\1654522.2 Housing Agreement by the City has been made in material reliance by the City on such covenants, representations and warranties: II -A. The Developer is a California limited liability company, lawfully entitled to do business in the State of California and the City. The Developer has the legal right, power and authority to enter into this Inclusionary Housing Agreement and the instruments and documents referenced herein and to consummate the transaction contemplated hereby. The persons executing this Inclusionary Housing Agreement and the instruments referenced herein on behalf of the Developer hereby represent and warrant that such persons have the power, right and authority to bind the Developer. II-13. The Developer has taken all requisite action and obtained all requisite consents in connection with entering into this Inclusionary Housing Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required for the Developer's authorization to enter into this Inclusionary Housing Agreement. II-C. Neither the execution of this Inclusionary Housing Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument, or other obligation to which the Developer is a party or by which the Developer may be bound, or under any law, statute, ordinance, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to the Developer or to the Property. II-D. This Inclusionary Housing Agreement is, and all agreements, instruments and documents to be executed by the Developer pursuant to this Inclusionary Housing Agreement shall be duly executed by and are or shall be valid and legally binding upon the Developer and enforceable in accordance with their respective terms. III. Effective Date This Inclusionary Housing Agreement is dated Su1 §� , 2015 for reference purposes only. This Inclusionary Housing Agreement shall not go into effect before the Effective Date. Indusionary Housing Agreement Page 9 City of Santa Ana February 17, 2015 1603\14\1654522.2 IV. Recitals The Recitals set forth above are true and correct. The Recitals are incorporated into this Inclusionary Housing Agreement in their entirety by this reference. V. Exhibit List The following is a list of the exhibits attached to this Inclusionary Housing Agreement. Each of the exhibits is incorporated by reference into the text of this Inclusionary Housing Agreement. Exhibit A Legal Description of Property Exhibit B Site Map Depicting Property and Zoning Designations Exhibit C Calculations of In -Lieu Fee (Inclusionary Housing Plan) ARTICLE 2 INCLUSIONARY HOUSING COVENANTS VI. Developer Compliance with the Ordinance The Developer acknowledges that the City has provided the Developer with copies of the Ordinance and the Administrative Procedures Manual. The Developer is familiar with the requirements of all the foregoing documents and shall ensure that the Project complies with this Inclusionary Housing Agreement and the requirements set forth in all the foregoing documents. VII. In -Lieu Fee On February 17, 2015, the Santa Ana City Council approved Developer's application to pay a fee in lieu of constructing all of the required inclusionary units, based on substantial evidence supporting a finding that the cost of providing inclusionary units on site would substantially exceed the amount of the applicable in -lieu fee. Accordingly, in lieu of providing any Inclusionary Unit specified in the Inclusionary Housing Plan, the Developer shall pay to the City of Santa Ana the sum of Inclusionary Housing Agreement Page 10 City of Santa Ana February 17, 2015 16M1411654522.2 $1,475,000.00 prior to obtaining the first building permit related to the Project. The final amount of the in -lieu fee is subject to change and will be based upon calculations completed at the time of payment, which must be completed before the issuance of any building permits for the Project. ARTICLE 3 DEFAULTS AND REMEDIES Vill. Default If either Party defaults with regard to any provision of this Inclusionary Housing Agreement, the non -defaulting Party shall serve written notice of such default upon the defaulting Party. If, after the service of written notice of such default, the defaulting Party does not cure such default within thirty (30) calendar days after service of the notice of default (or, if such cure reasonably takes longer than thirty (30) days, if such cure has not been commenced within the thirty (30) day period and is promptly completed within a reasonable time, not to exceed ninety (90) calendar days), the defaulting Party shall be in Default of the terms of the Inclusionary Housing Agreement, and shall be liable to the other Party for damages caused by such Default. Alternatively, the non -defaulting Party, at its option, may institute an action for specific performance of the terms of this Inclusionary Housing Agreement. IX. Legal Actions In addition to any other rights or remedies, either Party may institute legal action to cure, correct or remedy any Default, to recover damages for any Default, or to obtain any other remedy consistent with the purposes of this Inclusionary Housing Agreement. IX -A. The laws of the State of California shall govern the interpretation and enforcement of this Inclusionary Housing Agreement. IX-13. In the event that any legal action is commenced by the Developer against the City, service of process on the City shall be made by personal service Indusionary Housing Agreement Page 11 City of Santa Ana February 17, 2015 1603\14\1654522.2 upon the City Manager, or in such other manner as may be provided by law. IX-C. In the event that any legal action is commenced by the City against the Developer, service of process shall be made by personal service on the Developer's designated agent at such address as may be specified in written notice to the City, or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. X. Rights and Remedies are Cumulative The rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party. ARTICLE 4 GENERAL PROVISIONS XI. Notices, Demands and Communications Between the Parties Any and all notices, demands or communications submitted by any Party to another Party pursuant to, or required by, this Inclusionary Housing Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, to the address of the City and Developer, as applicable, as designated in Article 1 — Section I of this Inclusionary Housing Agreement. Such written notices, demands and communications may be sent in the same manner to such other addresses as either Party may from time -to -time designate as provided in this Section. Any notice, demand or communication shall be deemed to be received by the addressee, on the day that it is personally delivered, if dispatched by messenger, or two (2) calendar days after it is placed in the United States mail. Inclusionary Housing Agreement Page 12 City of Santa Ana February 17, 2015 1603\14\1654522.2 XII. Conflict of Interest No council member, official, contractor, consultant, attorney or employee of the City having any conflict of interest, direct or indirect, related to this Inclusionary Housing Agreement, or in the development of the Property, shall participate in any decision relating to this Inclusionary Housing Agreement. The Parties represent and warrant that they do not have knowledge of any such conflict of interest. XIII. Nonliability of City or City Officials and Employees No council member, official, contractor, consultant, attorney or employee of the City shall be personally liable to the Developer, any voluntary or involuntary successors and assignees, or any lender or other party holding any interest in the Property, in the event of any default or breach by the City, or for any amount which may become due to the Developer or to its successors or assignees, or on any obligations arising under this Inclusionary Housing Agreement, XIV. Indemnification The Developer agrees to indemnify and hold the City, and its officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to any act or omission of the Developer in performing its obligations hereunder. The City agrees to indemnify and hold the Developer and its officers, employees and agents, harmless from and against all damages, judgments, costs expenses and fees arising from or related to any act or omission of the City in performing its obligations hereunder. XV. No Waiver Failure to insist upon strict compliance with any of the terms, covenants, conditions and restrictions hereof on any one occasion shall not be deemed a waiver of such term, covenant, condition or restriction. Any waiver or relinquishment of rights or powers hereunder at any one time or more times shall not be deemed a waiver or relinquishment of such other rights or powers at any other time or times. XVI. Jurisdiction and Venue Any legal action or proceeding concerning this Inclusionary Housing Agreement shall be filed and prosecuted in the appropriate State of California court in Inclusionary Housing Agreement Page 13 City of Santa Ana February 17, 2015 1603\14\1654522.2 Orange County, California. Each Party hereto irrevocably consents to the personal jurisdiction of that court. The City and the Developer each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or jurisdiction, including without implied limitation, federal district court due to any of the following: A. Any diversity of citizenship between the City and the Developer; or B. The fact that the City is a party to such action or proceeding; or C. That a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the Developer and the City specifically waive any rights provided to it pursuant to California Code of Civil Procedure 394. The Developer acknowledges that the provisions of this Article 4 — Section XVI are material consideration to the City for its entry into this Inclusionary Housing Agreement, in that the City will avoid the potential cost, expense and inconvenience of litigating in a distant forum. XVII. Inspection of Books and Records To enforce its rights under this Inclusionary Housing Agreement, the City shall have the right at all reasonable times, at the City's cost and expense, to inspect the books and records of the Developer pertaining to the Property. Matters discovered by the City shall not be disclosed to third parties unless required by law, or unless otherwise resulting from or related to the pursuit of any remedies or the assertion of any rights of the City hereunder. XVIII. Successors and Assigns This Inclusionary Housing Agreement shall be binding upon, and inure to the benefit of, the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. The Developer may assign this Inclusionary Housing Agreement without the City's consent. XIX. No Third Party Beneficiaries The performance of the City's and the Developer's respective obligations under this Inclusionary Housing Agreement are not intended to benefit any party other than the City or the Developer, except as expressly provided otherwise herein. Indusionary Housing Agreement Page 14 City of Santa Ana February 17, 2015 1603\14\1654522.2 No person or entity not a signatory to this Inclusionary Housing Agreement shall have any rights or causes of action against any Party to this Inclusionary Housing Agreement as a result of that Party's performance or non-performance under this Inclusionary Housing Agreement, except as expressly provided otherwise herein. XX. Entire Agreement This Inclusionary Housing Agreement integrates all of the terms and conditions mentioned herein or incidental hereto. This Inclusionary Housing Agreement supersedes all negotiations or previous agreement between the Parties with respect to all or any portion of the Property and the Project thereof. XXI. Recordation The Developer and the City agree to permit recordation of this Inclusionary Housing Agreement, or a memorandum of this Inclusionary Housing Agreement, against the Property in the Office of the County Recorder of Orange County, California. XXII. Termination This Inclusionary Housing Agreement shall be effective until all of the following have been completed: Payment has been received and funds deposited in accordance with Article 2, Section VII of this Inclusionary Housing Agreement. IN WITNESS WHEREOF, the Parties hereto have duly executed this Inclusionary Housing Agreement as of the dates set forth below. [Signatures on Following Pages] Indusionary Housing Agreement Page 15 City of Santa Ana February 17, 2015 1603\14\1654522.2 SIGNATURE PAGE TO INCLUSIONARY HOUSING AGREEMENT APPROVED AS TO LEGAL FORM: am City dW Santa Ana CITY: CITY OF SANTA ANA A California Municipal Corporation By: Name: David Cavazos Its: City Manager Date: 7/2/2015 Indusionary Housing Agreement Page 16 City of Santa Ana February 17, 2015 1603\14\1654522.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California) County of Orange) On July 6, 2015 before me, Maria D. Huizar, Notary Public personally appeared David Cavazos, City Manager , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. MMAARIA D. HUiZAR LaCommission # 1974202 Notary Public - California Orange County My_ Comm. Expires A r 5 201 CAPACITY CLAIMED BY SIGNER: ❑ Individual(s) ❑ Corporate ❑ Officers Titles) ❑ Partner(s) ❑ General Partner of a Limited ❑ Partnership ❑ Attorney -in -Fact ❑ Trustee (s) ❑ Subscribing Witness ❑ Guardian/Conservator ❑ Other: WITNESS my hand and official seal. Signature���' " (Seal) SIGNER IS REPRESENTING: THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED TO THE BELOW: INCLUSIONARY HOUSING AGREEMENT WITH C&C N. HARBOR, LLC AT 1206 N. HARBOR BLVD.. SANTA ANA, CA NUMBER OF PAGES: DATE OF DOCUMENT: SIGNER (S) OTHER THAN NAMED ABOVE: SIGNATURE PAGE TO INCLUSIONARY HOUSING AGREEMENT DEVELOPER: C&C N. HARBOR, LLC, a California limited liability company A Todd R. Cottle, its member By: The Cottle Family Trust Dated 3/8/1987, its member Barry A. Cottle, Trustee Date: � / t 1 / 1 5- Inclusionary Housing Agreement Page 17 City of Santa Ana February 17, 2015 1603\14\1654522.2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange ) On June 17, 2015 before me, Stephen J. Edwards, Notary Public (insert name and title of the officer) personally appeared Todd R. Cottle and Barry A. Cottle who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) STEPNMEN J�EFFREY EDWARDS � Commission aM 2059013 z Notary Public • Coldornia g Orange CountyMr�Cm IreeFeb23,2010+ EXHIBIT A LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THE SOUTH 152 FEET OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 10 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA. EXCEPTING THEREFROM AN UNDIVIDED 2/9 INTEREST IN THE PUMPING PLANT AND WELL LOCATED NEAR THE SOUTHEAST CORNER OF THE LAND ABOVE DESCRIBED AND CONVEYED BY C.A. WESTGATE AND FANNIE C. WESTGATE TO E.H. WATERS, A WIDOWER, BY DEED RECORDED DECEMBER 5, 1930 IN BOOK 437 PAGE 468 OF OFFICIAL RECORDS. SAID LAND IS SHOWN ON LICENSED SURVEYOR'S MAP FILED IN BOOK 19, PAGE 26 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. AP N: 198-043-25 PARCEL A: THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE RANCHO LAS BOLSAS, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 12 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY. CALIFORNIA. EXCEPTING THEREFROM THE SOUTH 270.00 FEET. PARCEL B: THE WEST 20 FEET OF THE SOUTH 270 FEET OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE RANCHO LAS BOLSAS, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 12 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY. CALIFORNIA. APN: 198-011-01, 198-011-03, 198-011-02 Incluslonary Housing Agreement City of Santa Ana February 17, 2015 1603\14\1654522.2 EXHIBIT B SITE MAP DEPICTING PROPERTY 6 Fpdpp' d4$ ?ffdiag �11 dtli! µµiiE3 6tf @@4$ g pNG as b S Y e � pyi pps= p � R k deal !} � k{x 7t = O AN ! Will kn a ..da &$e C€ 3 Y@i.ev 1, t i'¢s Z, CIS .i.— , dC�r�� pA}y BPtla'I�I EXHIBIT C CALCULATIONS OF IN -LIEU FEE (INCLUSIONARY HOUSING PLAN) Inclusionary Housing Agreement City of Santa Ana February 17, 2015 1603\14\1654522.2 IN-UEU FEE CALCULATION OWNERSHIP PROJECTS -15%MODERATE INCOME INCLUSIONARY REQUIREMENT HOUSING OPPORTUNTY ORDINANCE SANTA ANA, CALIFORNIA I. Project Description A. Project Name B. Project Address II. D.-Sit. lncluslonary ReauiremeM A. Required Number of lncluslonary Units Total Project Units lncluslonary Requirement as %of Total Units Total Inclusionary Requ imment(Round-up) B. lncluslonary Unit Distribution Two -bedroom Units Three -bedroom Units Four-bedmom Units Totals Total Building Area (Square Fast) III. Affordabilitu Gap Unit Calndation Two -bedroom Units Three -bedroom Units Four -bedroom Units 1206-1310 N Harbor 1205-2310 N Harbor Blvd 110 15% 17 Required P of Total Project lncluslonary Units %of Total Units' Units' - 0.00% 0 49 44.55% 8 61 55.45% 9 110 100.00% 17 205,952 Restricted Price - Moderate Affordability Gap/ Market Prices Incomes Unit $0 $0 $0 $455,000 $354,000 $91.000 $415,000 $332,000 $83,000 Affordability Inclusionary, Total Affordability IV. Affordability Gap Calculation Gap/Unit Units Gap Two -bedroom Units $0 - $0 Three-hedroom Units $91,000 8 $728.000 Four -bedroom Units $83,000 9 $747.000 Total Affordability Gap $1,4]5,000 rota) In-Ueu Fee' $1,475,000 Per Total Unit $13,400 Per Income Restricted Unit $86,800 Per Square Foot of Total Building Area $7.16 This column must add up to 10VA. Multiply the %ar Total Units times the Total lncluslonary Requirement. a Equaltothe lesser ofthe defined Affordable Sales Price or 20%less than the projected Market Price. ' The Total In -Lieu Fee is equal to the Total Affordability Gap. Prepared by. CByof Santa Ana 9/25/2D14 Inclusionary, Housing Agreement City of Santa Ana February 17, 2015 1603\14\1654522.2 A-2015-035 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Santa Ana �0 Fly 20 Civic Center Plaza Santa Ana, California 92702 Attention: City Clerk R-2-01 _0335 To be recorded writhout fee. (Space Above This Line For Recorder's Use Only) (Government Code, §§ 6103 and 27383) INCLUSIONARY HOUSING AGREEMENT THIS INCLUSIONARY HOUSING AGREEMENT is dated as of Z',AIU I1'- , 2015, by and between the CITY OF Santa Ana, a charter city and California municipal corporation, and C&C N. Harbor, LLC a California limited liability company ("Developer"). RECITALS A. The City's Inclusionary Housing Ordinance ("Ordinance") became effective on November 28, 2011. B. The Developer is the fee owner of the Property located at 1206-1310 N. Harbor Boulevard, Santa Ana, California. C. The Developer desires to, at the Developer's sole cost and expense, develop a one -hundred and ten (110) unit Project on the Property. D. On February 3, 2015, the City Council approved Ordinance/Resolution Number 2015-02, which sets forth the City Approvals for the Project. E. On February 17, 2015, the Santa Ana City Council reviewed and approved an Inclusionary Housing Plan that was prepared by the Developer in accordance with the requirements imposed by the Ordinance and the Administrative Procedures Manual established by the City Council to implement the Ordinance requirements. Incusionary Housing Agreement Page 1 City of Santa Ana February 17, 2015 1603114116545222 F. Pursuant to Santa Ana Municipal Code section 41-1904(c)(2), any application to pay a fee in lieu of constructing some or all of the required inclusionary units for a project comprised of more than twenty residential units shall be subject to the review and approval of the City Council, which may grant such request if substantial evidence supports a finding that the cost of providing inclusionary units on site would substantially exceed the amount of the applicable in -lieu fee. G. This Inclusionary Housing Agreement, when fully executed by the City and the Developer and recorded, is intended to satisfy the requirement that the Developer enter into an Inclusionary Housing Agreement, as set forth in the Ordinance and the conditions to City Approvals. NOW, THEREFORE, in consideration of the mutual promises set forth in this Inclusionary Housing Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the City and the Developer, the Parties, agree as follows: The following words, terms and phrases are used in this Inclusionary Housing Agreement, as follows, unless the particular context of usage of a word, term or phrase requires another interpretation. Administrative Procedures Manual is this administrative procedures manual, which has been prepared by the City for the implementation and enforcement of the Ordinance. A copy of the Administrative Procedures Manual shall be maintained on file with the City, and shall be provided to the Developer. Affordability Gap is equal to the difference between the Fair Market Value of the Inclusionary Unit and the Affordable Sales Price for the Inclusionary Unit. Affordable Housing Cost means the maximum costs that can be borne by a Low or Moderate Income Household based on the requirements imposed by HSC Section 50052.5. The calculation methodology is described in the Administrative Procedures Manual, 6aclasionary Housing Agreement page 2 City of Santa Ana February 17, 2015 1603\14\1654522.2 California Health and Safety Code ("HSC") provides definitions of household income and affordable housing costs that are used in this Inclusionary Housing Agreement. City means the City of Santa Ana, California. City Approvals are defined as the entitlement approvals and the Inclusionary Housing Plan that must be approved by the City Council prior to the issuance of building permits for the Project. City Council means the City of Santa Ana City Council. City Manager is the City Manager of the City of Santa Ana. Default means the failure of a Party to perform any action or covenant required by this Inclusionary Housing Agreement within the time period provided herein following notice and opportunity to cure, as set forth in Article 3 — Section 1 of this Inclusionary Housing Agreement. Developer means the developer of the residential project that is subject to this Inclusionary Housing Agreement and its successors and assigns. Effective Date means the date on which the Inclusionary Housing Agreement is approved and executed by appropriate authorities of the Developer and the City; and the Inclusionary Housing Agreement is executed by the authorized representatives of the City and delivered to the Developer. Exhibits means the exhibits to this Inclusionary Housing Agreement, which are listed in Article V. Fair Market Value means the value of the Inclusionary Unit under normal circumstances in which the seller and the buyer freely negotiate the terms of the transfer of ownership. The Fair Market Value is estimated based on the assumption that no income or affordability restrictions are placed on the Inclusionary Unit. Gross Income means all income from whatever source from all adult household members for the previous calendar year as defined in California Code of Regulations Title 25 Housing and Community Development Section 6914. The definition includes the following specific requirements: Inclusionary Housing Agreement Page 3 City of Santa Ana February 17, 2015 1 603\1 4\1 654522.2 1. Except as provided in subdivision (2), all payments from all sources received by the head of household (even if temporarily absent) and each additional member of the household who is not a minor shall be included in the annual income of a household. Gross Income shall include, but not be limited to: a. The gross amount, before any payroll deductions, of wages and salaries, overtime pay, commissions, fees, tips and bonuses; b. The net income from operation of a business or profession or from rental or real or personal property (for this purpose, expenditures for business expansion or amortization of capital indebtedness shall not be deducted to determine the net income from a business); C. Interest and dividends; d. The full amount of periodic payments received from social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of periodic receipts (but see subdivision (2)(c)); e. Payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay. f. Public Assistance. If the public assistance payment includes an amount specifically designated for shelter and utilities which is subject to adjustment by the public assistance agency in accordance with the actual cost of shelter and utilities, the amount of public assistance income to be included as income shall consist of: i. The amount of the allowance or grant exclusive of the amount specifically designated for shelter and utilities, plus ii. The maximum amount which the public assistance agency could in fact allow for the household for shelter and utilities, g. Periodic and determinable allowances such as alimony and child support payments, and regular contributions or gifts received from persons not residing in the dwelling; Inclusionary Housing Agreement Page 4 City of Santa Ana February 17, 2015 1603\1 4\1 654522.2 h. All regular pay, special pay and allowances of a member of the Armed Forces (whether or not living in the dwelling) who is head of the household or spouse (but see subdivision (2)(e)). Where a household has net assets in excess of $5,000, income shall include the actual amount of income, if any, derived from all of the net household assets or 10 percent (10%) of the value of all such assets, whichever is greater. For purposes of this section, net households assets means value of equity in real property other than the household's full-time residence, savings, stocks, bonds, and other forms of capital investment. The value of necessary items such as furniture and automobiles shall be excluded. 2. The following items shall not be considered as income: a. Casual, sporadic or irregular gifts; b. Amounts which are specifically for or in reimbursement of the cost of medical expenses; C. Lump -sum additions to household assets, such as inheritances, insurance payments (including payments under health and accident insurance and worker's compensation), capital gains and settlement for personal or property losses; d. Amounts of educational scholarships paid directly to the student or to the educational institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees, books and equipment. Any amounts of such scholarships, or payments to veterans not used for the above purposes of which are available for subsistence are to be included in income; e. The special pay to a serviceman head of a household away from home and exposed to hostile fire; f. Relocation payments made pursuant to federal, state, or local relocation law; g. Foster child care payments; Indusionary Housing Agreement Page 5 City of Santa Ana February 17, 2015 1603\1 4\1 654522.2 h. The value of coupon allotments for the purchase of food pursuant to the Food Stamp Act of 1964 which is in excess of the amount actually charged the eligible household; i. Payments received pursuant to participation in the following volunteer programs under the ACTION Agency: i. National Volunteer Antipoverty Programs which include VISTA, Service Learning Programs and Special Volunteer Programs. ii. National Older American Volunteer Programs for persons aged 60 and over which include Retired Senior Volunteer Programs, Foster Grandparent Program, Older American Community Services Program, and National Volunteer Program to Assist Small Business Experience, Service Corps of Retired Executive (SCORE) and Active Corps of Executives (ACE). HCD means the California Department of Housing and Community Development. HUD means the United States Department of Housing and Urban Development. Inclusionary Housing Administrator has the day-to-day authority for making determinations related to the Ordinance and Administrative Procedures Manual. The Inclusionary Housing Administrator will be appointed by the City Manager. Inclusionary Housing Fund means a separate fund of the City established pursuant to the Housing Opportunity Ordinance of the Santa Ana Municipal Code. The fund was established for the specific purpose of providing the City with funds to assist in the development of housing that is affordable to Low and Moderate Income Households. The allowable uses of Inclusionary Housing Funds, and the related reporting are described in the Administrative Procedures Manual. Inclusionary Housing Plan means an in -lieu fee submitted for approval to the Inclusionary Housing Administrator that details the manner in which the Inclusionary Housing obligations will be fulfilled by the project. The Inclusionary Housing Plan form is presented in the Administrative Procedures Manual. Inclusionary Housing Agreement Page 6 City of Santa Ana February 17, 2015 1603\1 4\1 654522.2 In -Lieu Fee refers to a fee that may be paid by a developer in specific circumstances in lieu of providing Inclusionary Units within a project. Orange County Median Income is calculated by HCD using non -aggregated census income data and applying trending factors for metropolitan statistical areas (MSA) throughout the country. The MSA for Santa Ana is Orange County. The current household income information is presented in Attachment I of the Administrative Procedures Manual. Low Income Household refers to households whose incomes meet the standards defined Title 25 of the California Code of Regulations Section 6932, and by the HSC Section 50079.5. The maximum household income amount for Low Income Households shall be the amount published by HCD as adjusted to reflect the household size of the Homebuyer of the Inclusionary Unit. Market Rate Unit means any unit in the project that is not restricted for ownership and occupancy by Eligible Purchaser. Moderate Income Household refers to households whose income meets the standards defined Title 25 of the California Code of Regulations Section 6932, and by the HSC Section 50093. The maximum household income amount for Moderate Income Households shall be the amount published by HCD as adjusted to reflect the household size of the Homebuyer of the Inclusionary Unit. Ordinance means the Housing Opportunity Ordinance adopted by the City Council on November 28. 2011 as it has been amended from time to time. which is codified in the Santa Ana Municipal Code. Party and Parties mean the City and the Developer as parties to this Inclusionary Housing Agreement. Project means the housing project proposed to be developed on the Property at the Developer's sole cost and expense. Property means the real property on which the Project is to be developed, for which the legal description is provided in Exhibit A to this Inclusionary Housing Agreement. Inclusionary Housing Agreement Page 7 City of Santa Ana February 17, 2015 1603\14\1654522.2 PARTIES; REPRESENTATIONS AND WARRANTIES; EFFECTIVE DATE; RECITALS; AND EXHIBITS I. Parties to the Inclusionary Housing Agreement -A. City. The City is a charter city and California municipal corporation. The address of the City, for the purposes of this Inclusionary Housing Agreement, is: City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92702 Attention: Executive Director, Community Development Agency 1-13. Developer. The Developer is a California limited liability company. The principal office and address of the Developer, for the purposes of this Inclusionary Housing Agreement, is: C&C N. Harbor, LLC 14211 Yorba St., Ste. 200 Tustin, CA 92780 Attn: Todd Cottle II. Developer Representations And Warranties The representations and warranties of the Developer contained in Article 1 — Section II shall be based upon the actual knowledge of the Developer as of the Effective Date, and are true and correct as of the Effective Date. The Developer's liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Inclusionary Housing Agreement, shall survive the execution and delivery of the Inclusionary Housing Agreement. The Developer hereby makes the following representations, covenants and warranties, and Developer acknowledges that the execution of this Inclusionary Inclusionary Housing Agreement Page 8 City of Santa Ana February 17, 2015 1603\1 4\1 654522.2 Housing Agreement by the City has been made in material reliance by the City on such covenants, representations and warranties: II -A. The Developer is a California limited liability company, lawfully entitled to do business in the State of California and the City. The Developer has the legal right, power and authority to enter into this Inclusionary Housing Agreement and the instruments and documents referenced herein and to consummate the transaction contemplated hereby. The persons executing this Inclusionary Housing Agreement and the instruments referenced herein on behalf of the Developer hereby represent and warrant that such persons have the power, right and authority to bind the Developer. II-B. The Developer has taken all requisite action and obtained all requisite consents in connection with entering into this Inclusionary Housing Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required for the Developer's authorization to enter into this Inclusionary Housing Agreement. II-C. Neither the execution of this Inclusionary Housing Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument, or other obligation to which the Developer is a party or by which the Developer may be bound, or under any law, statute, ordinance, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to the Developer or to the Property. II-D. This Inclusionary Housing Agreement is, and all agreements, instruments and documents to be executed by the Developer pursuant to this Inclusionary Housing Agreement shall be duly executed by and are or shall be valid and legally binding upon the Developer and enforceable in accordance with their respective terms. III. Effective Date This Inclusionary Housing Agreement is dated ul�/ l ss , 2015 for reference purposes only. This Inclusionary Housing Agreement shall not go into effect before the Effective Date. Inclusionary Housing Agreement Page 9 City of Santa Ana February 17, 2015 1603\14\1654522.2 IV. Recitals The Recitals set forth above are true and correct. The Recitals are incorporated into this Inclusionary Housing Agreement in their entirety by this reference. V. Exhibit List The following is a list of the exhibits attached to this Inclusionary Housing Agreement. Each of the exhibits is incorporated by reference into the text of this Inclusionary Housing Agreement. Exhibit A Legal Description of Property Exhibit B Site Map Depicting Property and Zoning Designations Exhibit C Calculations of In -Lieu Fee (Inclusionary Housing Plan) ARTICLE 2 INCLUSIONARY HOUSING COVENANTS VI. Developer Compliance with the Ordinance The Developer acknowledges that the City has provided the Developer with copies of the Ordinance and the Administrative Procedures Manual. The Developer is familiar with the requirements of all the foregoing documents and shall ensure that the Project complies with this Inclusionary Housing Agreement and the requirements set forth in all the foregoing documents. VII. In -Lieu Fee On February 17, 2015, the Santa Ana City Council approved Developer's application to pay a fee in lieu of constructing all of the required Inclusionary units, based on substantial evidence supporting a finding that the cost of providing inclusionary units on site would substantially exceed the amount of the applicable in -lieu fee. Accordingly, in lieu of providing any Inclusionary Unit specified in the Inclusionary Housing Plan, the Developer shall pay to the City of Santa Ana the sum of Inclusionary Housing Agreement Page 10 City of Santa Ana February 17, 2015 1 603\1 4\1 654522.2 $1,475,000.00 prior to obtaining the first building permit related to the Project. The final amount of the in -lieu fee is subject to change and will be based upon calculations completed at the time of payment, which must be completed before the issuance of any building permits for the Project. ARTICLE 3 DEFAULTS AND REMEDIES Vill. Default If either Party defaults with regard to any provision of this Inclusionary Housing Agreement, the non -defaulting Party shall serve written notice of such default upon the defaulting Party. If, after the service of written notice of such default, the defaulting Party does not cure such default within thirty (30) calendar days after service of the notice of default (or, if such cure reasonably takes longer than thirty (30) days, if such cure has not been commenced within the thirty (30) day period and is promptly completed within a reasonable time, not to exceed ninety (90) calendar days), the defaulting Party shall be in Default of the terms of the Inclusionary Housing Agreement, and shall be liable to the other Party for damages caused by such Default. Alternatively, the non -defaulting Party, at its option, may institute an action for specific performance of the terms of this Inclusionary Housing Agreement. IX. Legal Actions In addition to any other rights or remedies, either Party may institute legal action to cure, correct or remedy any Default, to recover damages for any Default, or to obtain any other remedy consistent with the purposes of this Inclusionary Housing Agreement. IX -A. The laws of the State of California shall govern the interpretation and enforcement of this Inclusionary Housing Agreement. IX-B. In the event that any legal action is commenced by the Developer against the City, service of process on the City shall be made by personal service Inclusionary Housing Agreement Page 11 City of Santa Ana February 17, 2015 1603\14\1654522.2 upon the City Manager, or in such other manner as may be provided by law. IX-C. In the event that any legal action is commenced by the City against the Developer, service of process shall be made by personal service on the Developer's designated agent at such address as may be specified in written notice to the City, or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. X. Rights and Remedies are Cumulative The rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party. ARTICLE 4 GENERAL PROVISIONS XI. Notices, Demands and Communications Between the Parties Any and all notices, demands or communications submitted by any Party to another Party pursuant to, or required by, this Inclusionary Housing Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, to the address of the City and Developer, as applicable, as designated in Article 1 — Section I of this Inclusionary Housing Agreement. Such written notices, demands and communications may be sent in the same manner to such other addresses as either Party may from time -to -time designate as provided in this Section. Any notice, demand or communication shall be deemed to be received by the addressee, on the day that it is personally delivered, if dispatched by messenger, or two (2) calendar days after it is placed in the United States mail. Indusionary Housing Agreement Page 12 City of Santa Ana February 17, 2015 1603\14\1654522.2 XII. Conflict of Interest No council member, official, contractor, consultant, attorney or employee of the City having any conflict of interest, direct or indirect, related to this Inclusionary Housing Agreement, or in the development of the Property, shall participate in any decision relating to this Inclusionary Housing Agreement, The Parties represent and warrant that they do not have knowledge of any such conflict of interest. XIII. Nonliability of City or City Officials and Employees No council member, official, contractor, consultant, attorney or employee of the City shall be personally liable to the Developer, any voluntary or involuntary successors and assignees, or any lender or other party holding any interest in the Property, in the event of any default or breach by the City, or for any amount which may become due to the Developer or to its successors or assignees, or on any obligations arising under this Inclusionary Housing Agreement. XIV. Indemnification The Developer agrees to indemnify and hold the City, and its officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to any act or omission of the Developer in performing its obligations hereunder. The City agrees to indemnify and hold the Developer and its officers, employees and agents, harmless from and against all damages, judgments, costs expenses and fees arising from or related to any act or omission of the City in performing its obligations hereunder. XV. No Waiver Failure to insist upon strict compliance with any of the terms, covenants, conditions and restrictions hereof on any one occasion shall not be deemed a waiver of such term, covenant, condition or restriction. Any waiver or relinquishment of rights or powers hereunder at any one time or more times shall not be deemed a waiver or relinquishment of such other rights or powers at any other time or times. XVI. Jurisdiction and Venue Any legal action or proceeding concerning this Inclusionary Housing Agreement shall be filed and prosecuted in the appropriate State of California court in Inclusionary Housing Agreement Page 13 City of Santa Ana February 17, 2015 1603\14\1654522.2 Orange County, California. Each Party hereto irrevocably consents to the personal jurisdiction of that court. The City and the Developer each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or jurisdiction, including without implied limitation, federal district court due to any of the following: A. Any diversity of citizenship between the City and the Developer; or B. The fact that the City is a party to such action or proceeding; or C. That a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the Developer and the City specifically waive any rights provided to it pursuant to California Code of Civil Procedure 394. The Developer acknowledges that the provisions of this Article 4 — Section XVI are material consideration to the City for its entry into this Inclusionary Housing Agreement, in that the City will avoid the potential cost, expense and inconvenience of litigating in a distant forum. XVII. Inspection of Books and Records To enforce its rights under this Inclusionary Housing Agreement, the City shall have the right at all reasonable times, at the City's cost and expense, to inspect the books and records of the Developer pertaining to the Property. Matters discovered by the City shall not be disclosed to third parties unless required by law, or unless otherwise resulting from or related to the pursuit of any remedies or the assertion of any rights of the City hereunder. XVIII. Successors and Assigns This Inclusionary Housing Agreement shall be binding upon, and inure to the benefit of, the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. The Developer may assign this Inclusionary Housing Agreement without the City's consent. XIX. No Third Party Beneficiaries The performance of the City's and the Developer's respective obligations under this Inclusionary Housing Agreement are not intended to benefit any party other than the City or the Developer, except as expressly provided otherwise herein. Inclusionary Housing Agreement Page 14 City of Santa Ana February 17, 2015 1603\1 4\1 654522.2 No person or entity not a signatory to this Inclusionary Housing Agreement shall have any rights or causes of action against any Party to this Inclusionary Housing Agreement as a result of that Party's performance or non-performance under this Inclusionary Housing Agreement, except as expressly provided otherwise herein. XX. Entire Agreement This Inclusionary Housing Agreement integrates all of the terms and conditions mentioned herein or incidental hereto. This Inclusionary Housing Agreement supersedes all negotiations or previous agreement between the Parties with respect to all or any portion of the Property and the Project thereof. XXI. Recordation The Developer and the City agree to permit recordation of this Inclusionary Housing Agreement, or a memorandum of this Inclusionary Housing Agreement, against the Property in the Office of the County Recorder of Orange County, California. XXII. Termination This Inclusionary Housing Agreement shall be effective until all of the following have been completed: Payment has been received and funds deposited in accordance with Article 2, Section VII of this Inclusionary Housing Agreement. IN WITNESS WHEREOF, the Parties hereto have duly executed this Inclusionary Housing Agreement as of the dates set forth below. [Signatures on Following Pages] Inclusionary Housing Agreement Page 15 City of Santa Ana February 17, 2015 1603\14\1654522.2 SIGNATURE PAGE TO INCLUSIONARY HOUSING AGREEMENT DEVELOPER: C&C N. HARBOR, LLC, a California limited liability company Todd R. Cottle, its member By: The Cottle Family Trust Dated 3/8/1987. its member Barry A. Cottle, Trustee Date: 6 /'-1'l1 15- Inclusionary Housing Agreement Page17 City of Santa Ana February 17, 2015 1603\1 4\1 654522.2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange ) On June 17, 2015 before me, _ Stephen J. Edwards, Notary Public (insert name and title of the personally appeared Todd R. Cottle and Barry A. Cottle who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature / / (Seal) ----------------- STEPHENJEFFREYEDWARDS Commission M 2059013 s Notary Public - California i z Orange County M CqmmjxplresFeD 23, 2018+ SIGNATURE PAGE TO INCLUSIONARY HOUSING AGREEMENT APPROVED AS TO LEGAL FORM: M N City df Santa Ana CITY: CITY OF SANTA ANA A California Municipal Corporation By: L Name: David Cavazos Its: City Manager Date: 7/2/2015 Inolusionary, Housing Agreement Page 16 City of Santa Ana February 17, 2015 1 603\14\1654522.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California) County of Orange) On July 6, 2015 before me, Maria D. Huizar, Notary Public personally appeared David Cavazos, City Manager , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. =QNotary UIZAR 1974202 California unty s Apr 5 2016+ CAPACITY CLAIMED BY SIGNER: ❑ Individual(s) ❑ Corporate ❑ Officers Title(s) ❑ Partner(s) ❑ General Partner of a Limited ❑ Partnership ❑ Attorney -in -Fact ❑ Trustee (s) ❑ Subscribing Witness ❑ Guardian/Conservator ❑ Other: WITNESS my hand and official seal. Signature (Seal) J SIGNER IS REPRESENTING: THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED TO THE BELOW: INCLUSIONARY HOUSING AGREEMENT WITH C&C N. HARBOR LLC AT 1206 N. HARBOR BLVD., SANTA ANA, CA NUMBER OF PAGES: DATE OF DOCUMENT: SIGNER (S) OTHER THAN NAMED ABOVE: EXHIBIT A LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THE SOUTH 152 FEET OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 10 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA. EXCEPTING THEREFROM AN UNDIVIDED 2/9 INTEREST IN THE PUMPING PLANT AND WELL LOCATED NEAR THE SOUTHEAST CORNER OF THE LAND ABOVE DESCRIBED AND CONVEYED BY C.A. WESTGATE AND FANNIE C. WESTGATE TO E.H. WATERS, A WIDOWER, BY DEED RECORDED DECEMBER 5, 1930 IN BOOK 437 PAGE 468 OF OFFICIAL RECORDS. SAID LAND IS SHOWN ON LICENSED SURVEYOR'S MAP FILED IN BOOK 19, PAGE 26 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. APN: 198-043-25 PARCEL A: THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE RANCHO LAS BOLSAS, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 12 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY. CALIFORNIA. EXCEPTING THEREFROM THE SOUTH 270.00 FEET. PARCEL B: THE WEST 20 FEET OF THE SOUTH 270 FEET OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE RANCHO LAS BOLSAS, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 12 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. APN: 198-011-01. 198-011-03. 198-011-02 Inclusionary Housing Agreement City of Santa Ana February 17, 2015 1603\14\1654522.2 EXHIBIT B SITE MAP DEPICTING PROPERTY ba ya 101 iai 3Ss,td � d 9 tl i �G aF s3 tik1 @ a tg K p�sa as j d F,, .,_? a 38 Kl�d t is Et s . d 0 §"� - I'lau t P§ Mid qq a i a w - � ~� - U-- t P' W Fmu Z LLJ ° AInW ,l�l 4vt �d a� ( Est f f s t $z � � itkr E I I 111 F— as a �5.�b ,I t If ar t t Id W F CALCULATIONS OF IN -LIEU FEE (INCLUSIONARY HOUSING PLAN) Inclusionary Housing Agreement City of Santa Ana February 17, 2015 1603\14\1654522.2 IN-UEU FEE CALCULATION OWNERSHIP PROJECTS -15%MODERATE INCOME INCLUSIONARY REQUIREMENT HOUSING OPPORTUNTY ORDINANCE SANTA ANA, CALIFORNIA 1. Project Description A. Project Name B. Project Address II, On -Site Incluslonary Requirement A. Required Number of Incluslonary Units Total Project Units Incluslonary Requirement as %of Total Units Total Incluslonary Requirement (Roundup) B. Inclusionary Unit Distribution Two -bedroom Units Three -bedroom Units four -bedroom Units Totals Total Building Area (Square Feet) III, Affordability Gap 7 Unit Calculation TWp-bedroom Units Three -bedroom Units Four -bedroom Units 1206-1310 N Harbor 1206-1310 N Harbor Blvd 110 15% 17 Required p of Total Project Incluslonary Units %of Total unitsUnits' - 000% 0 49 44.55% 8 61 55.45% 9 110 100.00% 17 205,952 Restricted Price - Moderate Affordability Gap/ Market Prices Income' Unit $0 $0 $0 $455,000 $364,00 $91,000 $415,000 $332,OW $83,000 Affordability Inclusionary Total Affordability IV. Affordability Gap Calculation Gap/Unit Units Gap TWD.bedioom Units $0 - $0 Three -bedroom Units $91,000 8 $728,000 Four -bedroom Units $83,000 9 $747,000 Total Affordability Gap $1,475,000 Total ImLieu Fee 4 $1,475,000 Per Total Unit $13,400 Per Income Restricted Unit $86,800 Per Square Foot of Total Building Area $7A6 This column must add up to 100%. ' Multiply the % of Total Un Rstlmes the Total Incluslonary Requirement. Equal to the lesser of the defined Affordable Sales Price or 20%less than the projected Market Price. 4 The Total ImUru Fee is equal to the Total Affordabllity Gap. Prepared by. City of Santa Ana 9/25/2014 Inclusionary Housing Agreement City of Santa Ana February 17, 2015 1 603\1 4\1 654522.2