Resolution Number CRA 06-09-19-01RESOLUTION NO. CRA 06-09-19-01
' A RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY, APPROVING DISPOSITION AND
DEVELOPMENT AGREEMENT HABITAT FOR HUMANITY OF ORANGE
COUNTY HOUSING PROJECT
Whereas, the San Juan Capistrano Community Redevelopment Agency
("Agency") accepted fee title to a 2.7 acre parcel of real property (AP # 668-421-0304:
the "Property") located at the easterly terminus of Calle Rolando within the City of San
Juan Capistrano on or about January 2004, and
Whereas, funds used to acquire the Property derived from developer housing in
lieu fees from a separate housing tract project, and
Whereas, the Agency's acquisition of the Property was for purposes of land
banking for the potential use of the property to satisfy state law requirements relating to
providing low and moderate income housing within the community, and
Whereas, the City of San Juan Capistrano ("City") and the Agency have worked
diligently with Habitat for Humanity of Orange County, Inc. ("Habitat for Humanity") to
develop a low and moderate income housing project consisting of 27 residential units to
be located on the Property, and
Whereas, the City, in conjunction with Habitat for Humanity, has processed
appropriate land use entitlements authorizing the construction of 27 residential units on
the property, and
Whereas, this project has been processed in accordance with CEQA with the
preparation of a Mitigated Negative Declaration (available on City's website) which the
Agency hereby adopts as in conformance with CEQA, and
Whereas, a disposition and development agreement has been prepared between
the Agency and Habitat for Humanity establishing contractual requirements providing for
the donation of the Property to assist in the construction and sale of low and moderate
income units to needy families, subject to certain terms and conditions, and
Whereas, Health and Safety Code section 33449 provides broad legal authority
to the Agency to donate land for such low and moderate income housing purposes,
Page 1 of 2 9/19/06
Now Therefore, the San Juan Capistrano Community Redevelopment Agency
Board hereby approves the Disposition and Developmen greement attached as
Exhibit 1 to this Resolution, and hereby au razes the firman to execute this
agreement.
ATTEST:
R. MONAHAN, SECRET
RMAN
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
I, MARGARET R. MONAHAN, appointed Agency Secretary of the Community
Redevelopment Agency of the City of San Juan Capistrano, do hereby certify that the
foregoing Resolution No. CRA 06-09-19-01 was duly adopted by the Board of
Directors of the Community Redevelopment Agency at a regular meeting thereof, held
the 19`h day of September 2006 by the following vote:
AYES: DIRECTORS: Bathgate, Swerdlin and Chairman Soto
NOES DIRECTORS: None
ABSENT: DIRECTORS: Hart, Allevato
Page 2 of 2
9/19/06
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
San Juan Capistrano Community
Redevelopment Agency
32400 Paseo Adelanto
San Juan Capistrano, California 92675
This document is exempt from the payment of a recording
fee pursuant to Government Code Section 27383.
DISPOSITION AND DEVELOPMENT AGREEMENT
for
AFFORDABLE HOUSING
by and between
SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY
and
HABITAT FOR HUMANITY OF ORANGE COUNTY, INC.,
Calle Rolando Villas
Proiect Location
APN 665-421-03 & 04
Tract No. 17027
San Juan Capistrano, California
I
1 DDA -AO
EXHIBIT 1
TABLE OF CONTENTS
RECITALS............... ........................... ...................... ........................ ........ I ...... I............................ 1
1. DEFINITIONS.........................................................................................................................2
2. DISPOSITION OF THE SITE ....................................................... .................. I.....................
4
23 Conveyance of the Site ... :..................................................................................................... 4
2.2 Closing Procedure................................................................................................................. 4
2.3 Homeowners Association..................................................................................................... 4
2,4 Quality of Improvements .....................................................Error! Bookmark not defined.
3. CONDITIONS TO CLOSING................................................................................................ 4
3.1 Agency Conditions Precedent............................:.......................................................I.......... 4
4. SCOPE OF DEVELOPMENT; INSURANCE AND INDEMNITY ................................... 6
4.1 Scope of Development.......................................................................................................... 6
4.2 Design Review...................................................................................................................... 6
43 Time of Performance; Progress Reports............................................................................... 6
4.4 Cost of Construction............................................................................................................. 7
4.5 Insurance Requirements........................................................................................................ 7
4.6. Waiver of Subrogation........................................................................................................ 8
4.7 Obligation to Repair and Restore Damage Due to Casualty ................................................. 8
4.8 Indemnity.............................................................................................................................. 8
4.9 Rights of Access.................................................................................................................. 9.
4.10 Compliance With Laws...................................................................................................... 9
4.11 Nondiscrimination in Employment.................................................................................. 10
4.12 Taxes and Assessments.................................................................................................... 10
4.13 Liens and Stop Notices.................................................................................................... 10
4.14 Certificate of Completion................................................................................................ 10
4.15 Further Assurances.............................................................. t............................................ 10
4.16 Financing of the Improvements............................................................................
5. COVENANTS AND RESTRICTIONS....................................................................
5.1 Use Covenants.........................................................................................................
5.2 Affordable Housing Requirements..........................................................................
5.3 Verifications.............................................................................................................
5.4 Maintenance of Site..........................................................................................
5.5 Nondiscrimination Covenants .............. :...........................................................
.
5.6 Effect of Violation After Completion of Construction .....................................
6. DEVELOPER'S GENERAL REPRESENTATIONS AND WARRANTIES
6.1 Execution and Performance of Project Documents .........................................
6.2 Covenant Not to Transfer Except in Conformity .............................................
7. DEFAULTS, REMEDIES, AND TERMINATION .........................................
7.1 Default Remedies.......................................................
7.2 Institution of Legal Actions .......................................
7.3 Termination by the Developer ...................................
7.4 Termination by Agency .............................................
7.5 Acceptance of Service of Process ..............................
14
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.................. 15
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................... 16
.............. I.... 16
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......................... 17
......................... 17
Calle Rolando Villas i DDA -Affordable Housing
Calle Rolando Villas ii DDA -Affordable Housing
7.6 Rights and Remedies Are Cumulative................................................................................
17
7.7 Inaction Not a Waiver of Default........................................................................................
17
'
7.8 Applicable Law...................................................................................................................
17
7.9 Forced Delay; Extension of Times of Performance............................................................
18
8. TRANSFERS OR ASSIGNMENTS......................................................................................
18
8.1 Prohibition on Transfers or Assignments...........................................................................
18
8.2 Permitted Transfers............................................................................................................
18
8.3 Assignment by Agency.......................................................................................................
18
9. MISCELLANEOUS..............................................................................................................
19
9.1 Obligations Unconditional and Independent......................................................................
19
9.2 Notices................................................................................................................................
19
9.3 No Third Parties Benefited Except for City........................................................................
19
9.4 Counterparts........................................................................................................................
19
9.5 Prior Agreements; Amendments; Consents................................:.......................................
19
9.6 Governing Law ......... ........ ........ .... .... ....... .................................... ...........
.............. ..... ....... 20
9.7 Severability of Provisions..................................................................................................
20
9.8 Headings............................................................................................................................
20
9.9 Conflicts.............................................................................................................................20
9.10 Time of the Essence.........................................................................................................
20
9.11 Conflict of Interest.............................:..............................................................................
20
9.12 Warranty Against Payment of Consideration..................................................................
20
9.13 Successors and Assigns....................................................................................................
20
9.14 Non -Liability of Officials and Employees of Agency .....................................................
21
9.15 Relationship Between Agency and Developer................................................................
21
9.16 Agency and City Approvals and Actions.........................................................................
21
9.17 Real Estate Brokers..........................................................................................................
21
9.18 Attorneys' Fees................................................................................................................21
Calle Rolando Villas ii DDA -Affordable Housing
DISPOSITION AND DEVELOPMENT AGREEMENT
FOR
AFFORDABLE HOUSING
This Disposition and Development Agreement for Affordable Housing is entered into this
190' day of September, 2006, by and between the San Juan Capistrano Community
Redevelopment Agency, a public body, corporate and politic ("Agency"), and Habitat for
Humanity of Orange County, Inc., a California non-profit, public benefit corporation
("Developer").
RECITALS
A. Agency is a California redevelopment agency acting under the California Community
Redevelopment Law, Part 1 of Division 24 of the Health and Safety Code (the
"Redevelopment Law").
B. Agency owns property on Assessor's Parcel Nos. 668-421-03 & 04 at the terminus of
Calle Rolando located in the City of San Juan Capistrano, County of Orange, State of
California, which is legally described in Attachment 2.
C. The Agency is authorized and empowered under the Community Redevelopment Law,
California Health and Safety Code Sections 33000, et seq. (the "Community
Redevelopment Law"), to enter into agreements for the production, improvement, or
preservation of affordable housing to households of limited income, with such housing to
be available at Affordable Housing Cost (as defined below).
D. The Developer is experienced in the development and operation of affordable single and
multi -family housing in southern California.
E. The Developer has proposed to enter into this Agreement with the Agency under which
the Developer shall develop a new multifamily ownership condominium housing
development consisting of: (i) 13 duplexes (26 units), and (ii) 1 single family unit, all of
which shall be sold to "Qualified Households" at prices that do not exceed "Affordable
Housing Cost" throughout the "Covenant Period" (as defined below). Those
undertakings of the Developer are material to this Agreement and but for those
undertakings by the Developer, the Agency would not have entered into this Agreement.
F. This Agreement is in the vital and best interest of the Agency and the City of San Juan
Capistrano, California, and the health, safety and welfare of its residents.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and
conditions herein contained, the parties hereto agree as follows:
Calle Rolando Villas 1 DDA -Affordable Housing
' 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following meanings:
"Affordability Covenants" means Attachment 3 to this Agreement.
"Affordable Housing Cost" means a monthly payment which, including a reasonable
utility allowance, does not exceed:
a) For a Very Low Income Household, one -twelfth (1/12) of thirty percent
(30%) of fifty percent (50%) of Area Median Income; and
b) For a Low Income Household, one -twelfth (1/12) of thirty percent (30%)
of eighty percent (80%) of Area Median Income.
"Agency" means the San Juan Capistrano Redevelopment Agency, a public body,
corporate and politic, exercising governmental functions and powers and organized under
the Community Redevelopment Law of the State of California, and any assignee of or
successor to its rights, powers and responsibilities.
"Agency Conditions Precedent" is set forth in Section 3.
"Agency Deed" means a deed in the form of Attachment No. 4 to this Agreement.
"Area" means the Orange County Primary Metropolitan Statistical Area, as periodically
defined by HUD.
"Certificate of Completion" means Attachment No. 6 to this Agreement.
"City" means the City of San Juan Capistrano, California, a California municipal
corporation.
"Closing Date" means the date the Agency Deed is recorded.
"Conveyance" means the conveyance of the Site by recordation of the Agency Deed.
"County" means the County of Orange, California.
"Covenant Period" means a period of sixty (60) years, as more particularly set forth in the
Affordability Covenants.
"Date of Agreement" means September 19, 2006.
I"Default" is defined in Section 1.1 hereof.
Calle Rolando Villas 2 DDA -Affordable Housing
"Developer" means Habitat for Humanity of Orange County, Inc., a California non-
profit, public benefit corporation.
"Development" means the new duplexes (26 units) and single family unit, and associated
improvements as required by this Agreement to be: (i) constructed by the Developer
upon the Site, with related offsite improvements, and (ii) operated in conformity with the
Agency Deed and the Affordability Covenants.
"Event of Default" has the meaning set forth in Section 7.1.
"Executive Director" means the Executive Director of the Agency or his or her designee
or delegate.
"Improvements" means all of the improvements required by the Development.
"Legal Description of the Site" means Attachment No. 2 to this Agreement.
"Low Income Household" means households earning not greater than eighty percent
(80%) of Median Income for the Area.
"Notice" shall mean a notice in the form prescribed by Section 9.2 hereof.
"Project Documents" means, collectively, this Agreement, the Affordability Covenants,
the Agency Deed, all other Attachments to this Agreement, and any other agreement,
document, or instrument that Agency requires in connection with the execution of this
Agreement or from time to time to effectuate the purposes of this Agreement.
"Qualified Household" is a person or a household whom Developer determines is
qualified to participate in the ownership of a Unit in the Development in accordance with
the Affordability Covenants.
"Required Affordable Units" means all twenty-seven (27) of the dwelling units required
to be developed on the Site under this Agreement and as more fully set forth in the
Affordability Covenants.
"Schedule of Performance" means Attachment No. 5 to this Agreement.
"Site" means that real property depicted on the Site Map and described with greater
particularity by the Legal Description of the Site.
"Site Map" means Attachment No. 1 to this Agreement,
"Unit" means each of the twenty-seven (27) dwelling units required to be developed by
the Developer under this Agreement.
Calle Rolando Villas 3 DDA -Affordable Housing
' "Very Low Income Households" means households earning not greater than fifty percent
(501/o) of Median Income for the Area.
"Year" means the period commencing as of the Closing Date and ending as of December
31 of that calendar year, then each succeeding calendar year thereafter during the
Covenant Period.
2. DISPOSITION OF THE SITE
2.1 Conveyance of the Site. Subject to the satisfaction of those conditions set forth in
Section 3 hereof, the Agency is prepared to convey the Site to the Developer free of charge in
consideration of the performance by Developer under all terms and conditions of this Agreement.
In consideration of the Agency entering into this Agreement and conveying the Site, the
Developer shall develop the Improvements and comply with and cause the use of the Site to
conform to the Affordability Covenants throughout the Covenant Period. Subj ect to the
covenants and conditions hereon, Agency shall convey to Developer title to the Site free and
clear of any and all encumbrances, liens, leases, easements, and other exceptions to or defects in
title, excepting only the following: (i) the lien of any non -delinquent property taxes and
assessments (to be prorated at the close of Escrow); (ii) the covenants and conditions set forth in
the Grant Deed for the Site; (iii) property interests held by a public body or public bodies
including without limitation easements, franchises, licenses, or other property interests of said
public body or public bodies; and (iv) the approved title exceptions an such other exceptions to
' title as may hereafter be mutually approved by the Agency and Developer.
2.2 Closing Procedure. After Developer obtains all land use approvals for the
Improvements, Agency shall record the following documents in this order: (i) the Agency Deed;
(ii) the Affordability Covenants; and (iii) such other instruments, if any, as shall be approved by
Executive Director (upon consultation with Agency's legal counsel) as necessary or convenient
to effectuate and implement the Improvements. The order of recordation shall be subject to
revision upon approval of the Executive Director.
2.3 Homeowners Association. Developer shall establish a homeowner's association to
provide for ongoing exterior property maintenance and maintenance of common areas on the
Site. Approval of covenants, conditions and restrictions as to the Site or portions thereof) shall
be subject to the approval of the Executive Director.
3. CONDITIONS TO CLOSING
3.1 Agency Conditions Precedent. The Agency shall not execute the Agency Deed or
proceed with the Closing as provided pursuant to this Agreement, unless all of the following
conditions precedent (the "agency conditions precedent") have been fully satisfied, as
determined in good faith by the Executive Director (which condition, if it requires action by
Developer, shall also be a covenant of Developer):
Calle Rolando Villas 4 DDA -Affordable Housing
(a) Execution of Certain Documents. Each of the Affordability Covenants and the
Agency Deed has been executed by the Developer (where such documents so provide) and is
ready to be recorded.
(b) Evidence of Financing. Developer shall have provided written proof acceptable to
Agency that the Developer has sufficient internal funds and/or has obtained a loan or financing,
subject to customary conditions and Agency has approved such evidence of financing, in
accordance with Section 4.16 hereof. In the event Developer obtains a loan or financing for the
construction of the Improvements, such construction loan or financing for the Improvements
shall be ready to close, and shall close and shall be immediately available for use in constructing
the Improvements,
(c) Construction Contract. Agency acknowledges that Developer is a California licensed
contractor and may perform the construction of the Development. Developer shall have
confirmed to the Agency in writing of its intention to act as the general contractor for the
construction of the Development. Alternatively, Developer shall have provided to the Agency a
signed copy of affixed -price contract between the Developer and a general contractor for the
construction of the Development, certified by the Developer to be a true and correct copy
thereof, and Executive Director shall have approved such contractor or contractors, and the
construction contract or contracts. However, nothing contained in this subsection (c) shall be
deemed to create any responsibility or liability for selection of the contractor(s) of for
construction of the Improvements, the Developer being solely responsible for such activities.
(d) Payment, Performance and Completion Bonds. In the event that Developer hires a
third -party contractor to perform the construction of the Development, Developer shall have
obtained payment bonds and performance and completion bonds for off-site improvements as
may be customarily required by City in connection with its subdivision process, in an amount
and from a surety company reasonably acceptable to the Executive Director. All bonds shall be
issued by good and solvent sureties qualified to do business in California and shall have a rating
of A or better in the most recent edition of Best's Key Rating Guide.
(e) Insurance. Agency shall have received evidence, satisfactory to Executive Director,
that all of the insurance policies required by Section 4.5, below, are in full force and effect.
All conditions set forth in Section 3.1, or to Agency's obligations hereunder, are for
Agency's benefit only and Executive Director may waive all or any part of such rights by written
notice to Developer. If Executive Director shall, within the applicable periods set forth herein,
disapprove of any of the items which are subject to Agency's approval, or if any of the
conditions set forth in this Agreement are not met within the times called for, Agency may
thereafter terminate this Agreement without any further liability on the part of Agency by giving
written notice of termination to the Developer.
(f) Land Use Approvals. Before commencement of construction of the Development or
other works of improvement upon the Site, the Developer shall, at its own expense, secure or
cause to be secured any and all land use and other entitlements, permits, and approvals which
may be required for the Improvements by the City or any other governmental agency affected by
Calle Rolando Villas 5 DDA -Affordable Housing
' or having jurisdiction over such construction or work. The Developer shall, without limitation,
apply for and secure, and pay all costs, charges and fees associated therewith, all permits and
fees required by the City, County of Orange, and other governmental agencies with jurisdiction
over the Improvements.
4. SCOPE OF DEVELOPMENT; INSURANCE AND INDEMNITY
4.1 Scope of Development. The Developer shall develop the Improvements in accordance
with the approved plans, drawings and documents for the Improvements.
4.2 Design Review.
(a) Developer Submissions. Prior to the Date of Agreement, in connection with its
application for land use approvals by the City, the Developer has submitted "Basic Concept
Drawings" for the Improvements. Before commencement of construction of the Improvements
or other works of improvement upon the Site, the Developer shall submit to the City any plans
and drawings (collectively, the "Design Development Drawings") which may be required by the
City with respect to any permits and entitlements which are required to be obtained to develop
the Improvements. Developer, on or prior to the date set forth in the Schedule of Performance,
shall submit to the City such plans for the Improvements as required by the City in order for
Developer to obtain building permits for the Improvements.
(b) City Review and Approval. The City shall have all rights to review and approve or
disapprove all Design Development Drawings and other required submittals in 4ccordance with
the City Municipal Code, and nothing set forth in this Agreement shall be construed to constitute
the City's approval of any or all of the Design Development Drawings or to limit or affect the
City's Xeview and right to approve, approve subject to conditions, or disapprove Design
Development Drawings, plans, drawings, applications, or submittals.
(c) Revisions. Any and all revisions required by the City and its inspectors under the
Municipal Code and all other applicable Uniform Codes (e.g. Building, Plumbing, Fire,
Electrical, etc.) and under other applicable laws and regulations shall be included by the
Developer in its Design Development Drawings and other required submittals and shall be
completed during the construction of the Improvements.
(d) Defects in Plans. The Agency and the City shall not be responsible either to the
Developer or to third parties in any way for any defects in the Design Development Drawings,
nor for any structural or other defects in any work done according to the approved Design
Development Drawings, nor for any delays reasonably caused by the review and approval
processes established by this Section 4.2.
4.3 Time of Performance: Progress Reports. The Developer shall submit all Design
Development Drawings, commence and complete all construction of the Improvements, and
' satisfy all other obligations and conditions of this Agreement within the times established
therefor in this Agreement. Construction of the Improvements shall be commenced on or before
Calle Rolando Villas 6 DDA -Affordable Housing
the time established therefor in the Schedule of Performance. Once construction is commenced,
it shall continuously and diligently be pursued to completion and shall not be abandoned for
more than fifteen (15) days except when due to causes beyond the control and without the fault
of Developer. During the course of construction and prior to issuance of the Certificate of
Completion, Developer shall provide timely reports of the progress of construction when
requested by the Executive Director. Developer shall completeconstruction of all of the
Improvements on the Site within twenty-four (24) months after the first to occur of (i)
commencement of construction or (ii) the time established by this Agreement for commencement
of construction.
4.4 Cost of Construction. The cost of planning, designing, developing, and constructing
the Improvements shall be borne solely by the Developer. All fees imposed by any
governmental entity in connection with the subdivision of the Site or the development of the
Improvements shall be home by Developer and shall be paid when flue by Developer.
4.5 Insurance Requirements. Commencing as of the Closing Date and continuing
throughout the Covenant Period, Developer shall maintain at Developer's sole expense, with
insurers reasonably approved by Agency, the following policies of insurance in form and
substance reasonably satisfactory to Agency:
(a) workers' compensation insurance and any other insurance required by law in
connection with the Improvements or other work performed on the Site (to be in effect while
work is being performed on the Site);
(b) upon commencement of construction of the Improvements and at all times prior to
completion of the Improvements, builder's risk -all risk insurance covering 100% of the
replacement cost of all Improvements (including offsite and the materials) during the course of
construction in the event of fire, lightning, windstorms vandalism, earthquake, malicious
mischief and all other risks normally covered by "all risk" coverage policies in the area where
the Site is located (including loss by flood if the Site is in an area designated as subject to the
danger of flood);
(c) following completion of the Improvements, fire and hazard "all risk" insurance
covering 100% of the replacement cost of the Improvements in the event of fire, lightning,
windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk"
coverage policies in the area where the Site is located (including loss by flood if the Site is in an
area designated as subject to the danger of flood);
(d) public liability insurance in amounts reasonably required by the Executive Director
from time to time, and in no event less than $2,000,000 for "single occurrence;"
(e) property damage insurance in amounts reasonably required by the Executive Director
from time to time, and in no event less than $2,000,000; and
(f) all other insurance reasonably required by the Executive Director from time to time.
Calle Rolando Villas 7 DDA -Affordable Housing
' 4.6. Waiver of Subrogation. Developer hereby waives all rights to recover against
Agency (or any officer, employee, agent or representative of Agency) for any loss incurred by
Developer from any cause insured against or required by any Project Document to be insured
against; provided, however, that this waiver of subrogation shall not be effective with respect to
any insurance policy if the coverage thereunder would be materially reduced or impaired as a
result. Developer shall use its best efforts to obtain only policies which permit the foregoing
waiver of subrogation.
4.7 Obligation to Repair and Restore Damage Due to Casualty. If during the period of
construction the Improvements shall be totally or partially destroyed or rendered wholly or partly
uninhabitable by fire or other -casualty required to be insured against by Developer, Developer
shall promptly proceed to obtain insurance proceeds and take all steps necessary to begin
reconstruction and, immediately upon receipt of insurance proceeds, to promptly and diligently
commence the repair or replacement of the Improvements to substantially the same condition as
the Improvements are required to be constructed pursuant to this Agreement, whether or not the
insurance proceeds are sufficient to cover the actual cost of repair, replacement, or restoration,
and Developer shall complete the same as soon as possible thereafter so that the Improvements
can be occupied as an affordable housing project in accordance with this Agreement. In no event
shall the repair, replacement, or restoration period exceed eighteen (18) months from the date
Developer obtains insurance proceeds unless the Executive Director, in his or her sole and
absolute discretion, approves a longer period of time. Agency shall cooperate with Developer, at
no expense to Agency, in obtaining any governmental permits required for the repair,
replacement, or restoration. If, however, the then -existing laws of any other governmental
agencies with jurisdiction over the Site do not permit the repair, replacement, or restoration,
Developer may elect not to repair, replace, or restore the Improvements by giving notice to
Agency (in which event Developer will be entitled to all insurance proceeds but Developer shall
be required to remove all debris from the Site) or Developer may reconstruct such other
improvements on the Site as are consistent with applicable land use regulations and approved by
the City, Agency, and the other governmental agency or agencies with jurisdiction, and the
Agency may pursue remedies of its choosing under this Agreement, including without limitation
termination.
4.8Indemnity.
(a) Developer shall defend (by counsel satisfactory to Agency), indemnify and save and
hold harmless Agency and City and their officers, contractors, agents and employees
(collectively, the "Indemnitees") from and against all claims, damages, demands, actions, losses,
liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs)
arising from or relating to: (i) this Agreement (including without limitation Section 4.10 hereof);
(ii) a claim, demand or cause of action that any person has or asserts against Developer; (iii) any
act or omission of Developer, any contractor, subcontractor or material supplier, engineer,
architect or other person with respect to the Site; or (iv) the ownership, occupancy or use of the
Site. Notwithstanding the foregoing, Developer shall not be obligated to indemnify the Agency
with respect to the consequences of any act of gross negligence or willful misconduct of the
Agency. Developer's obligations under this Section 4.8 shall survive the issuance of the
Certificate of Completion and termination of this Agreement; the requirements under this
Calle Rolando Villas
DDA -Affordable Housing
Section 4.8 are in addition to and do not limit the obligations of the Developer under the Agency
Deed.
(b) The Developer shall reimburse the Agency immediately upon written demand for all
costs reasonably incurred by the Agency (including the reasonable fees and expenses of
attorneys, accountants, appraisers and other consultants, whether the same are independent
contractors or employees of Agency) in connection with the enforcement of the Project
Documents and all related matters including the following: (i) the Agency's commencement of,
appearance in, or defense of any action or proceeding purporting to affect the rights or
obligations of the parties to any Project Document, and (ii) all claims, demands, causes of action,
liabilities, losses, commissions and other costs against which the Agency is indemnified under
the Project Documents. Such reimbursement obligationsshallsurvive the issuance of the
Certificate of Completion and termination of this Agreement.
(c) The Developer shall indemnify the Agency from any real estate commissions or
brokerage fees which may arise from this Agreement or the Site, including without limitation the
the sale of dwelling units on the Site. The Developer represents that it has engaged no broker,
agent, or finder in connection with this transaction, and the Developer agrees to hold the Agency
harmless from any claim by any broker, agent or finder in connection with this Agreement, the
activities by the Developer, or the Site.
4.9 Rights of Access. Prior to the issuance of the Certificate of Completion, for purposes
of assuring compliance with this Agreement, representatives of Agency shall have the right of
access to the Site, without charges or fees, at normal construction hours during the period of
construction for the purposes of this Agreement, including but not limited to, the inspection of
the work being performed in constructing the Improvements so long as Agency representatives
comply with all safety rules. Agency representatives shall, except in emergency situations, notify
the Developer prior to exercising its rights pursuant to this Section 4.9.
4.10 Compliance With Laws. Developer shall carry out the design, construction and
operation of the Improvements in conformity with all applicable laws, including all applicable
state labor standards (including payment of prevailing wages if not exempted), the City zoning.
and development standards, building, plumbing, mechanical and electrical codes, and all other
provisions of the City Municipal Code, and the Fair Housing Act, 42 U.S.C. Section 3601 et seq.
(and 24 C.F.R. Part 100), the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq.,
Government Code Section 4450, et seq., Government Code Section 11135, et seq., the Unruh
Civil Rights Act, Civil Code Section 51, et seq., and the California Building Standards Code,
Health and Safety Code Section 18900, et seq. The Developer does hereby and shall indemnify
and hold each of Agency and City harmless from and against any and all claims, demands,
causes -of action, obligations, damages, liabilities, costs and expenses, including reasonable
attorneys' fees, that may be asserted against or incurred by Agency and/or City with respect to or
in any way arising from Developer's and Developer's compliance with or failure to comply with
applicable laws, including all applicable federal and state labor standards including without
limitation the requirements of Labor Code Section 1720, if applicable.
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4.11 Nondiscrimination in Employment. Developer certifies and agrees that all persons
employed or applying for employment by it, its affiliates, subsidiaries, or holding companies are
and will be treated equally by it without regard to, or because of race, color, religion, ancestry,
national origin, sex, sexual orientation, age, pregnancy, childbirth or related medical condition,
medical condition or physical or mental disability.
4.12 Taxes and Assessments. Developer shall pay prior to delinquency all ad valorem
real estate taxes and assessments on the Site. Developer shall Femove or have removed any levy
or attachment made on any of the Site or any part thereof which is owned or leased by
Developer, or assure the satisfaction thereof within a reasonable time, but in no event to exceed
sixty (60) days. The Developer's duties to make payments of taxes and assessments under this
Section 4.12 shall cease with respect to properties sold to homebuyers in accordance with this
Agreement as of the time of each such sale. The Developer shall additionally defend, indemnify,
and hold harmless the Agency and the City from and against any taxes, assessments, mechanic's
liens, claims of materialmen and suppliers, or other claims by private parties in connection with
(a) activities undertaken by the Developer or (b) the Site.'
4.13 Liens and Ston Notices. Developer shall not allow to be placed on the Site or any
part thereof any lien or stop notice. If a claim of a lien or stop notice is given or recorded
affecting the Improvements the Developer shall within thirty (30) days of such recording or
service or within five (5) days of Agency's demand whichever last occurs: (i) pay and discharge
the same; or (ii) affect the release thereof by recording and delivering to Agency a surety bond in
sufficient form and amount, or otherwise; or (iii) provide Agency with indemnification from the
Title Company against such lien or other assurance which Agency deems, in its sole discretion,
to be satisfactory for the payment of such lien or bonded stop notice and for the full and
continuous protection of Agency from the effect of such lien or bonded stop notice.
4.14 Certificate of Completion. Promptly after completion of the Improvements in
conformity with this Agreement, Agency shall furnish the Developer with a "Certificate of
Completion," substantially in the form attached hereto as Attachment 6 hereof. Agency shall not
unreasonably withhold such Certificate of Completion. The Certificate of Completion shall be a
conclusive determination of satisfactory completion of the Improvements and the Certificate of
Completion shall so state. If Agency refuses or fails to furnish a Certificate of Completion after
written request from Developer, Agency shall, within fifteen (15) days of receipt of written
request therefor,.provide Developer with a written statement of the reasons Agency refused or
failed to furnish the Certificate of Completion. The statement shall also contain Agency's
opinion of the actions Developer must take to obtain the Certificate of Completion. The
Certificate of Completion is not a notice of completion as referred to in Section 3093 of the
California Civil Code.
4.15 Further Assurances. Developer shall execute and acknowledge (or cause to be
executed and acknowledged) and deliver to Agency all documents, and take all actions,
reasonably required by Agency from time to time to confirm the rights created or now or
hereafter intended to be created under the Project Documents or otherwise to cavy out the
purposes of the Project Documents.
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4.16 Financing of the Improvements.
(a) Evidence of Financial Capability. Within the time set forth in the Schedule of
Performance, Developer shall submit to the Executive Director, evidence reasonably satisfactory
to the Executive Director that Developer has the financial capability necessary for the
construction of the Development pursuant to this Agreement.. Such evidence of financial
capability shall.include a copy of the commitment or commitments obtained by Developer for
each source of funds to assist in financing the construction of the Development. All copies of
commitments submitted by Developer to Agency shall be certified by Developer to be true and
correct copies thereof. Each commitment for financing shall be in such form and content
acceptable to Agency as reasonably evidences a firm and enforceable commitment, with only
those conditions which are standard or typical for the lender involved for similar projects.
(b) Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With
respect to any mortgage or deed of trust granted by Developer as to the Site as provided herein,
whenever the Agency may deliver any notice or demand to Developer with respect to any breach
or default by the Developer under this Agreement, the Agency shall at the same time deliver to
each holder of record of any mortgage or deed of trust authorized by this Agreement a copy of
such notice or demand; provided that the failure to notify any holder of record shall not vitiate or
affect the effectiveness of notice to the Developer. Each such holder shall (insofar as the rights
granted by the Agency are concerned) have the right, at its option, within sixty (60) days after
the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to
pursue with due diligence the cure or remedy of any such default and to add the cost thereof to
the mortgage debt and the lien of its mortgage or deed of trust. Nothing contained in this
Agreement shall be deemed to permit or authorize such holder to undertake or continue the
construction or completion of the Improvements, or any portion thereof (beyond the extent
necessary to conserve or protect the improvements or construction already made) without first
having expressly assumed the Developer's obligations to the Agency by written agreement
reasonably satisfactory to the Agency. The holder, in that event, must agree to complete, in the
manner provided in this Agreement, the improvements to which the lien or title of such holder
relates, but on a schedule which takes into account the time reasonably required for the holder to
obtain title to and possession of the Site, analyze and negotiate amendments to plans,
specifications, construction contracts and operating contracts or to negotiate new construction
contracts and operating contracts. Any such holder properly completing such improvement shall
be entitled, upon compliance with the requirements of Section 4.14 of this Agreement, to a
Certificate of Completion. It is understood that a holder shall be deemed to have satisfied the
sixty (60) day time limit set forth above for commencing to cure or remedy a Developer default
which requires title and/or possession of the Site (or portion thereof) if and to the extent any such
holder has within such sixty (60) day period commenced proceedings to obtain title and/or
possession and thereafter the holder diligently pursues such proceedings to completion and cures
or remedies the default.
(c) Failure of Holder to Complete Improvements. In any case where, sixty (60) days after
the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any
part thereof receives a notice from Agency of a default by the Developer in completion of
construction of any of the Improvements under this Agreement, and such holder is not vested
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' with ownership of the Site and has not exercised the option to construct as set forth in Section
4.16, or if it has exercised the option but has defaulted hereunder and failed to timely cure such
default, the Agency may purchase the mortgage or deed of trust by payment to the holder of the
amount of the unpaid mortgage or deed of trust debt, including principal and interest and all
other sums secured by the mortgage or deed of trust. If the ownership of the Site or any part
thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance
from the holder to the Agency upon payment to the holder of an amount equal to the sum of the
following:
(1) The unpaid mortgage or deed of trust debt at the time title became vested in the holder
(less all appropriate credits, including those resulting from collection and application of rentals
and other income received during foreclosure proceedings);
(2) All expenses with respect to foreclosure including reasonable attorneys' fees;
(3) The net expense, if any, incurred by the holder as a direct result of the subsequent
management of the Site or part thereof,
(4) The costs of any improvements made by such holder;
(5) An amount equivalent to the interest that would have accrued at the rate(s) specified
in the holder's loan documents on the aggregate of such amounts had all such amounts become
' part of the mortgage or deed of trust debt and such debt had continued in existence to the date of
payment by the Agency; and
(6) Any customary prepayment charges imposed by the lender pursuant to its loan
documents and agreed to by the Developer.
The foregoing rights shall be in addition to those measures set forth in an Inter -Creditor
Agreement, and in addition shall supplement and not limit the Agency's rights as landlord under
the Agency Deed or by operation of law.
(d) Right of the Agency to Cure Mortgage or Deed of Trust Default. In the event of a
mortgage or deed of trust default or breach by the Developer whether prior to or after the
completion of the construction of any of the Improvements or any part thereof (continuing until
the expiration of the term of the Agency Deed), Developer shall immediately deliver to Agency a
copy of any mortgage holder's notice of default. If the holder of any mortgage or deed of trust
has not exercised its option to construct, the Agency shall have the right but no obligation to cure
the default. In such event, the Agency shall be entitled to reimbursement from the Developer of
all proper costs and expenses incurred by the Agency in curing such default.
(e) Failure to Obtain Financing. In the event this Agreement is terminated, upon such
termination, the Developer shall deliver to the Agency an executed assignment in a form
reasonably acceptable to the Agency of the Developer's right to use all plans, blueprints,
drawings, sketches, specifications, tentative or final subdivision maps, landscape plans, utilities
plans, soils reports, noise studies, environmental assessment reports, grading plans and any other
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materials relating to the construction of the Improvements on the Site (the "Plans"), together
with copies of all of the Plans, Such assignment shall not affect the Developer's obligations or
duties concerning any of the Plans, including without limitation any obligation to pay for any
work done on the Plans. Upon such assignment and payment therefor, the parties agree that
neither shall have any further obligations or liability to the other pursuant to this Agreement.
5. COVENANTS AND RESTRICTIONS
5.1 Use Covenants. Developer covenants and agrees for itself, its successors, assigns, and
every successor in interest to the Site or any part thereof, that the Developer shall devote the Site
to the uses specified in and shall operate in conformity with: (i) this Agreement; (ii) the
Affordability Covenants; and (iii) the Agency Deed, whichever is the more restrictive in each
case unless expressly provided to contrary effect herein, All uses conducted on the Site,
including, without limitation, all activities undertaken by the Developer pursuant to this
Agreement, shall conform to all applicable provisions of the City Municipal Code.
5.2 Affordable Housing Requirements.
(a) Number of Required Affordable Units. Developer agrees to make available and
restrict occupancy to all of the Units at Affordable Housing Cost to Low and Very Low Income
Households as more particularly set forth in the Affordability Covenants.
(b) Duration of Affordability Requirements. The Required Affordable Units shall be
maintained as owner -occupied units available at and owned by Low and Very Low Income
Households throughout the Covenant Period, as more particularly set forth in the Affordability
Covenants.
(c) Selection of Buyers. Developer shall be responsible for the selection of homebuyers
for the Required Affordable Units in compliance with the criteria set forth in Section 5.3 of this
Agreement.
(d) Income of Owners. Each homebuyer shall be a Low or Very Low Income Household
which meets the eligibility requirements established for.the corresponding Required Affordable
Unit, and Developer shall obtain a certification from each prospective purchaser which
substantiates such fact. Developer shall verify the income certification of each homebuyer as set
forth in Section 5.3 hereof. Prior to entering into an agreement for sale of a unit on the Site to a
homebuyer. The Developer shall cooperate in obtaining substantiation of income, including tax
returns.
5.3 Verifications.
(a) Income Verification. Developer shall verify the income of each proposed and existing
homebuyer of the Required Affordable Units and all other units developed on the Site.
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' (b) The Developer shall maintain on file sale agreements, income verifications,
development costs and records for all of the units developed on the Site. The Developer shall
maintain complete and accurate records pertaining to the Required Affordable Units and will
permit any duly authorized representative of the Agency to inspect the books and records of the
Developer pertaining to this Agreement and the Required Affordable Units.
5.4 Maintenance of Site. Developer agrees for itself and its successors in interest to the
Site, to maintain the improvements on the Site in conformity with the City Municipal Code, and
shall keep the Site free from any accumulation of debris or waste materials. During such period,
the Developer shall also maintain the landscaping planted on the Site in a healthy condition, The
Developer's duties shall cease as to each unit sold in conformity with this Agreement as of the
time of each such sale.
5.5 Nondiscrimination Covenants.
(a) Developer covenants by and for itself and any successors in interest that there shall be
no discrimination against or segregation of any person or group of persons on account of race,
color, creed, religion, sex, marital status, sexual preference, handicap, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the
Developer itself or any person claiming under or through it establish or permit any such practice
or practices of discrimination or segregation with reference to the selection, location, number,
use or occupancy of homebuyers, lessees, subtenants, sublessees or vendees of the Site or any
' portion thereof. The foregoing covenants shall run with the land.
(b) Developer shall refrain from restricting the sale or lease of the Site on the basis of
race, color, religion, sex, marital status, sexual preference, handicap, ancestry or national origin
of any person. All such deeds, leases or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
In deeds:
"The grantee herein covenants by and for himself or herself, his or
her heirs, executors, administrators and assigns, and all persons
claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of
persons on account of race, color, creed, religion, sex, marital
status, sexual preference, handicap, national origin or ancestry in
the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee or any
person claiming under or through him or her, establish or permit
any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of
homebuyers, lessees, subtenants, sublessees or vendees in the land
herein conveyed. The foregoing covenants shall run with the
land."
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In leases:
"The lessee herein covenants by and for himself or herself, his or
her heirs, executors, administrators, and assigns, and all persons
claiming under or through him or her, and this lease is made and
accepted upon and subject to the following conditions:
`That there shall be no diserirnination against or segregation of any
person or group of persons, on account of race, color, creed,
religion, sex, marital status, sexual preference, handicap, national
origin, or ancestry in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises herein leased nor
shall the lessee himself or herself, or any person claiming under or
through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of homebuyers,
lessees, sublessees, subtenants, or vendees in the premises herein
leased."'
In contracts:
"There shall be no discrimination against or segregation of, any
person, or group of persons on account of race, color, creed, ---
religion, sex, marital status, sexual preference, handicap, national
origin, or ancestry, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the premises, nor shall the
transferee himself or herself or any person claiming under or
through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of homebuyers;
lessees, subtenants, sublessees or vendees of the premises."
5.6 Effect of Violation After Completion of Construction. Agency is deemed the
beneficiary of the terms and provisions of this Agreement and of the covenants running with the
land, for and in its own right and for the purposes of protecting the interests of the 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, without regard to whether Agency has
been, remains or is an owner of any land or interest therein in the Site or in the Project Area of
the Redevelopment Plan. Agency shall have the right, if the Agreement or any covenants in any
agreement pursuant to this Agreement, including without limitation the Affordability Covenants
and the Agency Deed, are breached, to exercise all rights and remedies, and to maintain any
actions or suits at law or in equity or other proper proceedings to enforce the curing of such
breaches to which it or any other beneficiaries of this Agreement and such covenants may be
entitled.
6. DEVELOPER'S GENERAL REPRESENTATIONS AND WARRANTIES.
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As a material inducement to Agency to enter into this Agreement, Developer represents
and warrants to Agency that:
6.1 Execution and Performance of Proiect Documents. Developer has all requisite
authority to execute and perform its obligations under the Project Documents. The execution
and delivery by Developer of, and the performance by Developer of its obligations under, each
Project Document has been authorized by all necessary action and do not and will not violate any
provision of, or require any consent or approval not heretofore obtained under, any articles of
incorporation, by-laws or other governing document applicable to Developer.
6.2 Covenant Not to Transfer Except in Conformity. Except for the sale of individual
dwelling units in conformity with this Agreement, the Developer shall not sell, lease, or
otherwise transfer or convey all or any part of the Site, or any interest therein, unless the
Developer has first obtained the prior written consent of the Executive Director, which consent
shall not be unreasonably withheld. Any sale, lease, transfer or conveyance without such
consent shall, at Agency's option, be void. In connection with the foregoing consent
requirement, Developer acknowledges that Agency relied upon Developer's particular expertise
in entering into this Agreement and continues to rely on such expertise to ensure the satisfactory
completion of all of the Improvements, and the marketing and sale of the Required Affordable
Units to Low and Very Low Income Households to afford the community a long-term, quality
affordable housing resource.
DEFAULTS, REMEDIES, AND TERMINATION.
7.1 Default Remedies. Subject to the extensions of time set forth in Section 79 of this
Agreement, failure by either party to perform any action or covenant required by this Agreement
within the time periods provided herein following notice and failure to cure as described
hereafter, constitutes a "Default" under this Agreement. A party claiming a Default shall give
written notice of Default to the other party specifying the Default. Except as otherwise expressly
provided in this Agreement, and without limiting or affecting rights of parties hereto to terminate
this Agreement, the claimant shall not institute any proceedings against any other party, and the
other party shall not be in Default if such party within thirty (30) days from receipt of such notice
immediately, with due diligence, commences to cure, correct or remedy the specified Default and
shall complete such cure, correction or remedy with diligence.
7.2 Institution of Legal Actions. In addition to any other rights or remedies and subject to
the restrictions otherwise set forth in this Agreement, any party may institute an action at law or
equity to seek specific performance of the terms of this Agreement, or to cure, correct or remedy
any Default, to recover damages for any Default, or to obtain any other remedy consistent with
the purpose of this Agreement; provided, that the Agency shall have no right, in any event, to
impose a lien for monetary damages against the Site or on any improvements erected from time -
to -time on the Site. Such legal actions must be instituted in the Superior Court of the County of
Orange, State of California.
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7.3 Termination by the Developer. In the event that: (i) the Developer is not in default _
under this Agreement and Agency does not execute the Agency Deed and attempt to convey the
Site to the Developer in the manner and condition and by the date provided in this Agreement; or
(ii) in the event of any default of Agency prior to the Conveyance which is not cured within the .
time set forth in Section 7.1 hereof, and any such failure is not cured within the applicable time
period after written demand by the Developer, then this Agreement may, at the option of the
Developer, be terminated by Notice thereof to Agency. From the date of the notice of
termination of this Agreement by the Developer to Agency and thereafter, this Agreement shall
be deemed terminated and there shall be no further rights or obligations among the parties,
7.4 Termination by Agency. If prior to the time established in the Schedule of
Performance for the satisfaction of the Agency's Conditions Precedent: (i) Developer (or any
successor in interest) assigns this Agreement or any rights therein or in the Site in violation of
this Agreement; or (ii), Developer does not fulfill the Agency Conditions Precedent and such
failure is not caused by Agency; or (iii) Developer fails to execute (as covenantee or maker) the
Affordability Covenants or the Agency Deed; or (iv) Developer is otherwise in default of this
Agreement and fails to cure such default within the time set forth in Section 7.1 hereof; then this
Agreement and any rights of the Developer or any assignee or transferee with respect to or
arising out of the Agreement or the Site, shall, at the option of Agency, be terminated by Agency
by Notice thereof to the Developer. From the date of the Notice of termination of this Agreement
by Agency to the Developer and thereafter this Agreement shall be deemed terminated and there
shall be no further rights or obligations among the parties, except that Agency may pursue any
remedies it has hereunder. --
7.5 Acceptance of Service of Process. In the event that -any legal action is commenced
against the Agency, service of process on the Agency shall be made by personal service upon the
Executive Director, Agency's secretary, or in such other manner as may be provided by law. In
the event that any legal action is commenced against the Developer, service of process on the
Developer shall be made in such manner as may be provided by law and shall be effective
whether served inside or outside of California.
7.6 Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the parties are cumulative, and the exercise by a 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
another party.
7.7 Inaction Not a Waiver of Default Any failures or delays by either party in asserting
any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of
any such rights or remedies, or deprive either such party of its right to institute and maintain any
actions or proceedings which it may deem necessary to protect, assert or enforce any such rights
or remedies.
7.8 Applicable Law. The laws of the State of California shall govern the interpretation
and enforcement of this Agreement.
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' 7.9 Forced Delay: Extension of Times of Performance. In addition to specific provisions
of this Agreement, performance by any parry hereunder shall not be deemed to be in Default, and
all performance and other dates specified in this Agreement shall be extended, where delays or
Defaults are due to: war; insurrection; riots; floods; earthquakes; fires; casualties; acts of God;
acts of the public enemy; acts or omissions of another party, or acts or failures to act of the City
or any other public or governmental agency or entity (excepting that acts or failures to act of
Agency or City shall not excuse performance by Agency or City). Notwithstanding anything to
the contrary in this Agreement, an extension of time for any such cause shall be for the period of
the forced delay and shall commence to run from the time of the commencement of the cause, if
notice by the party claiming such extension is sent to the other party within fifteen (15) days of
the commencement of the cause. Times of performance under this Agreement may also be
extended in writing by the mutual agreement of Agency and Developer. The Agency Executive
Director shall have the authority to approve extensions on behalf of Agency to approve
extensions of time not to exceed a cumulative total of one hundred eighty (180) days.
8. TRANSFERS OR ASSIGNMENTS
8.1 Prohibition on Transfers or Assignments. The qualifications and identity of the
Developer are of particular concern to Agency. It is because of those qualifications and identity
that Agency has entered into this Agreement with the Developer. Until the completion of the
Improvements and the sale of all units to be developed on the Site under this Agreement, no
j voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers
' under this Agreement, nor shall the Developer make any total or partial sale, transfer,
conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the Site or
the Development thereon (excepting the sale of units to homebuyers in conformity with this
Agreement) without prior written approval of Agency, except as expressly set forth herein.
8.2 Permitted Transfers. Notwithstanding any other provision of this Agreement to the
contrary, the Agency shall not unreasonably withhold its approval of an assignment of this
Agreement or conveyance of the Site, or any part thereof, in connection with any of the
following;
(a) Any transfers to an entity or entities in which the Developer retains a minimum of
fifty-one percent (51 %) of the ownership or beneficial interest and retains management and
control of the transferee entity or entities.
(b) The conveyance or dedication of any portion of the Site to the City or other
appropriate governmental agency, or the granting of easements or permits to facilitate
construction of the Development. In the event of a proposed assignment by Developer under this
Section, Developer agrees that at least thirty (30) days prior to such assignment it shall give
written notice to Agency including a request for approval of such assignment and satisfactory
evidence that the assignee has assumed jointly with Developer the Obligations of this
Agreement.
8.3 Assignment by Agency. Agency may assign or transfer any of its rights or obligations
' under this Agreement with the approval of the Developer, which approval shall not be
Calle Rolando Villas 18 DDA -Affordable Housing
unreasonably withheld; provided, however, that Agency may assign or transfer any of its
interests hereunder to the City at any time without the consent of the Developer.
9. MISCELLANEOUS
9.1 Obligations Unconditional and Independent. Notwithstanding the existence at any
time of any obligation or liability of Agency to Developer, or any other claim by Developer
against Agency, in connection with the Site or otherwise, Developer hereby waives any right it
might otherwise have (a) to offset any such obligation, liability or claim against Developer's
obligations under this Agreement (including without limitation the attachments hereto), or (b) to
claim that the existence of any such outstanding obligation, liability or claim excuses the
nonperformance by Developer of any of its obligations under the Project Documents.
9.2 Notices. All notices, demands, approvals and other communications provided for in
the Project Documents shall be in writing and be delivered to the appropriate party at its address
as follows:
If to Developer: Habitat for Humanity of Orange County, Inc.
2200 South Ritchey
Santa Ana, CA 92705
If to Agency: San Juan Capistrano Community Redevelopment Agency
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Executive Director
Addresses for notice may be changed from time to time by written notice to. all other parties. All
communications shall be effective when actually received; provided, however, that nonreceipt of
any communication as the result of a change of address of which the sending party was not
notified or as the result of a refusal to accept delivery shall be deemed receipt of such
communication.
9.3 No Third Parties Benefited Except for City. This Agreement is made forthe purpose
of setting forth rights and obligations of Developer and Agency, and no other person (except for
the City) shall have any rights hereunder or by reason hereof. Except for the City, which shall be
deemed to be a third party beneficiary of this Agreement (including without limitation the
Attachments hereto), there shall be no third party beneficiaries of this Agreement.
9.4 Counterparts. Any Project Document may be executed in counterparts, all of which,
taken together, shall be deemed to be one and the same document.
9.5 Prior Agreements; Amendments; Consents.
(a) This Agreement (together with the other Project Documents) contains the entire
agreement between Agency and Developer with respect to the Site, and all prior negotiations,
understandings and agreements with respect to such matters are superseded by this Agreement
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and such other Project Documents. No modification of any Project Document (including
waivers of rights and conditions) shall be effective unless in writing and signed by the party
against whom enforcement of such modification is sought, and then only in the specific instance
and for the specific purpose given.
(b) This Agreement integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements between the parties or
their predecessors in interest with respect to all or any part of the subject matter hereof.
(c) All waivers of the provisions of this Agreement must be in writing by the appropriate
authorities of the Agency and the Developer, and all amendments hereto must be in writing by
the appropriate authorities of the Agency and the Developer.
9.6 Venue. Developer irrevocably and unconditionally submits to the jurisdiction of the
Superior Court of the State of California for the County of Orange or the United States District
Court of the Central District of California, as Agency may deem appropriate, in connection with
any legal action or proceeding arising out of or relating to this Agreement or the other Project
Documents. Assuming proper service of process, Developer also waives any objection regarding
personal or in rem jurisdiction or venue.
9.7 Severability of Provisions. No provision of any Project Document that is held to be
unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of
' the Project Documents are hereby declared to be severable.
9.8 Headings. Article and section headings are included in the Project Documents for
convenience of reference only and shall not be used in construing the Project Documents.
9.9 Conflicts. In the event of any conflict between the provisions of this Agreement and
those of any other Project Document, this Agreement shall prevail; provided however that, with
respect to any matter addressed in both such documents, the fact that one document provides for
greater, lesser or different rights or obligations than the other shall not be deemed a conflict
unless the applicable provisions are inconsistent and could not be simultaneously enforced or
performed.
9.10 Time of the Essence. Time is of the essence of all of the Project Documents.
9.11 Conflict of Interest. No member, official or employee of Agency shall have any
direct or indirect interest in this Agreement, nor participate in any decision relating to the
Agreement which is prohibited by law.
9.12 Warranty Against Payment of Consideration. Developer warrants that it has not
paid or given, and will not pay or give, any third person any money or other consideration for
obtaining this Agreement.
' 9.13 Successors and Assigns. All of the terms, covenants and conditions of this
Agreement shall be binding upon the Developer and its permitted successors and assigns.
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Whenever the term "Developer" is used in this Agreement, such term shall include any other
permitted successors and assigns as herein provided.
9.14 Non -Liability of Officials and Employees of Agency. No member, official, officer
or employee of Agency or the City shalt be personally liable to the Developer, or any successor
in interest, in the event of any Default or breach by Agency (or the City) or for any amount
which may become due to the Developer or its successors, or on any obligations under the terms
of this Agreement.
9.15 Relationship Between Agency and Developer. It is hereby acknowledged that the
relationship among the Agency and Developer is not that of a partnership or joint venture and
that Agency and Developer shall not be deemed or construed for any purpose to be the agent of
the other. Accordingly, except as expressly provided in this Agreement, including the
Attachments hereto, neither the Agency nor the City shall have no rights, powers, duties or
obligations with respect to the development, operation, maintenance or management of the
Development,
9.16 Agency and City Approvals and Actions. Whenever a reference is made herein to
an action or approval to be undertaken by the Agency, the Executive Director is authorized to act
on behalf of the Agency unless specifically provided otherwise or the law otherwise requires.
When a reference is made herein to an action or approval to be undertaken by the City the City
Manager is authorized to act on behalf of the City unless specifically provided otherwise or the
law otherwise requires.
9.17 Real Estate Brokers. Agency and Developer each represent and warrant to each
other that no broker or finder is entitled to any commission or finder's fee in connection with this
transaction, and each agrees to defend and hold harmless the other from any claim to any such
commission or fee resulting from any action on its part.
9.18 Attorneys' Fees. In any action among the parties to interpret, enforce, reform,
modify, rescind, or otherwise in connection with any of the terms or provisions of this
Agreement, the prevailing party in the action shall be entitled, in addition to any other relief to
which it might be entitled, reasonable costs and expenses including, without limitation, litigation
costs and reasonable attorneys' fees.
[SIGNATURE PAGE AND NOTARY ACKNOWLEDGEMENTS FOLLOW]
Calle Rolando Villas 21 DDA -Affordable Housing
' IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the
dates hereinafter respectively set forth.
DEVELOPER:
HABITAT FOR HUMANITY OF ORANGE COUNTY, INC.,
a California non-profit, public benefit corporation
By:
Chairperson
By:
Executive Director
AGENCY:.
SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY,
a public body, corporate and politic
By:
Executive Director
ATTEST:
By:
Secretary
APPROVED AS TO FORM:
John Shaw, Agency Counsel
Calle Rolando Villas
22 DDA -Affordable Housing
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, , a Notary
Public, personally appeared personally known to
me (or 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,
WITNESS my hand and official seal.
Notary Public
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, , a Notary
Public, personally appeared personally known to
me (or 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 be/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.
WITNESS my hand and official seal.
Notary Public
Calle Rolando Villas 123 DDA -Affordable Housing
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ATTACHMENT
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THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE CITY OF SAN JUAN
CAPISTRANO, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED
AS FOLLOWS:
PARCEL I':
THAT PORTION OF LOT I OF THE DANERI TRACT, IN THE CITY OF SAN JUAN
CAPISTRANO, AS SHOWN ON AM" FILED IN BOOK 2, PAGE 22 OF RECORD OF SURVEYS,
RECORDS OF SAID ORANGE COUNTY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHERLY CORNER OF SAID LOT 1, BEING THE WESTERLY
CORNER OF LOT 62 OF TRACT NO. 103, AS SHOWN ON A MAP RECORDED IN BOOTS 11,
PAGES 29 TO 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE
COUNTY; THENCE SOUTH 44° 06' 00" EAST 723.47 FEET ALONG THE NORTHEASTERLY
LINE OF SAID LOT 1 TO THE TRUB POINT OF BEGINNING;. THENCE SOUTH 49' 34' 29'
WEST 147.05 FEET, THENCE SOUTH 3' 11' 12" EAST 204.26 FEET TO THE SOUTH LINE OF
SAID LOT 1; THENCE NORTH 89 ' 46' 01" EAST 193.01 FEET ALONG SAID SOUTH LINE TO
ALINE THAT BEARS SOUTH 0' 11' 13" EAST FROM AN ANGLE POINT ON THE NORTHERLY
LINE OF SAID LOT 1; THENCE NORTH 0' 11' 13" WEST 203.83 FEET TO SAID ANGLE POINT;
THENCE NORTH 44' 06' 00" WEST 131.85 FEET TO THE 'TRUE POINT OF BEGINNING.
PARCEL 2:
AN EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES OVER THAT PORTION OF LOT
1 OF THE DANERI TRACT, IN THE CITY OF SAN JUAN CAPISTRANO, AS SHOWN ON A MAP
FILED IN BOOK 2, PAGE 22 OF RECORD OF SURVEYS, RECORDS OF SAID ORANGE
COUNTY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE NORTHWESTERLY LINE OF SAID LOT 1, DISTANT SOUTH
366 56' 30" WEST 115.69 FEET FROM THE NORTHERLY CORNER OF SAID LOT I, SAID -
NORTHERLY CORNER BEING THE WESTERLY CORNER OF LOT 62 OF TRACT NO. 103, AS
SHOWN ON A MAP RECORDED IN BOOK 11, PAGPS 29 TO 33 INCLUSIVE OF
MISCEL1 ANEOUS MAFS RECORDED IN BOOK 11, PAVES 29 TO 33 INCLUSIVE OF
MISCELLANEOUS MAPS, F.ECORDS OF SAID ORANGE COUNTY; THENCE SOUTH 42' 40'30"
EAST 638.31 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE
NORTHEASTERLY HAVING A RADIUSOF 55.21 FEET; THENCE SOUTHBAST"ERLY ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 420 29' 17 AS DISTANCE OF 40.94 FEET TO
A REVERSE CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 40.00 FEET;
THENCE SOUTHEASTERLY, SOUTHWESTERLY AND NORTHWESTERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 26" 58'34'A DISTANCE OF 184.29 FEET TO A
REVERSE CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 55.21 FEET; THENCE
NORTHRESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 42° 29' 17" A
DISTANCE OF 40.94 FEET; THENCE NORIA 42', 40' 38" WEST 632.81 FEET TO SAID
NORTHWESTERLY LINE; THENCE NORTH 36' 56'38- EAST 30.50 FEET TO THE POINT OF
BEGINNING.
EXCEPTING THEREFROM THAT PORTION THEREOF LYING WITHIN THE PUBLIC STREET
(ALIPAZ STREET) DESCRIBED IN TUB EASEMENT DEED TO THE CITY OF SAN JUAN
Mal
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ATTACHMENT 2
TO EXHIBIT 1
iwuni iwu
CAPISTRANO, RECORDED SEPTEMBER 24, 1976 IN BOOK 11900, PAGE 831 OF OFFICIAL
RECORDS,
ALSO EXCEPTING THE PORTION INCLUDED WITHIN PARCEL 1.
PARCEL 3:
THAT PORTION OF LOT 1 OF THE DANERI TRACT IN TIM CITY OF SAN JUAN
CAPISTRANO, COUNTY Ok` ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK
2 PAGE 22 OF RECORD OF SURVEYS IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, LYING EASTERLY OF A LINE WHICH BEARS SOUTH 0° 11' 13" EAST FROM AN
ANGLE POINT ON THE NORTHERLY LINE OF SAID LOT, SAID ANGLE POINT BEING SOUTH
44" 06' 00" EAST 861.32 FEET FORM THE MOST NORTHERLY CORNER THEREOF.
Asscssoes Parcel Na %8421-03, 04
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RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
San Juan Capistrano )
Community Redevelopment Agency )
32400 Paseo Adelanto )
San Juan Capistrano, California 92675 )
Attention: Executive Director )
'17115 deeument is exempt tram me paymenr a
punumn to 0ovemment Code Secion 27383,
AFFORDABILITY COVENANTS
CALLE ROLANDO VILLAS CONDOMINIUMS
TRACT NO. 17027
recording fee
This DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS (CALLE
ROLANDO VILLAS CONDOMINIUMS, TRACT NO. 17027) (the "Declaration') is hereby
made as of September 19, 2006 by and between the SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and
HABITAT FOR HUMANITY OF ORANGE COUNTY, INC., a California non-profit, public _
benefit corporation ("Habitat"), with reference to the following:
RECITALS
A. Concurrently herewith, the Agency has transferred to Habitat the real property on
Assessor's Parcel Nos. 668-421-03 & 04 at the terminus of Calle Rolando located in the City of
San Juan Capistrano, County of Orange, State of California, which is legally described in Exhibit
"A" attached hereto and incorporated herein (the "Property").
B. Habitat is an ecumenical Christian housing ministry whose objective is to
eliminate poverty housing from the world and to make decent shelter a matter of conscience. By
having affluent and poor work together in equal partnership, Habitat hopes to build new
relationships and a sense of community as well as new houses. Habitat is incorporated as a tax-
exempt, non-profit organization. Funding comes from individuals, churches, corporations,
foundations and other organizations which are moved by concern and compassion to help those
in need. Mortgage payments are put into a local "Fund for Humanity" and recycled to build new
houses. New homeowners are also encouraged to contribute what they can in addition to their
monthly house payments so they, too, can help others have decent housing.
C. Habitat provides housing to chosen families on a non-profit basis and finances the
purchase of these homes at no interest.
ATTACHMENT 3
TO EXHIBIT 1
' D. The supply of housing to be made available by Habitat is very limited and
therefore only a very few families can be selected to acquire Habitat housing. A family selection
committee chooses future homeowners on the basis of housing need, ability to repay the loan,
family size, character, willingness to volunteer time on Habitat's projects and certain other input.
The family selection process is nondiscriminatory; neither race nor religion is a factor in
choosing the families to receive Habitat houses.
E. On August 22, 2006, the City's Planning Commission approved a resolution
("Project Approval") authorizing, subject to approval of a rezone by the City Council and
issuance of building permits and other conditions, a new multifamily ownership condominium
housing development containing 27 units (thirteen duplexes and one single-family unit) located
on the Property (the "Site").
F. On September 19, 2006, the City's City Council approved Rezone 05-02,
Tentative Tract No. 17027, with a density bonus, and Floodplain Permit No. 06-01.
G. On September 19, 2006, Agency and Habitat entered into the Disposition and
Development Agreement ("DDA") for the transfer of the Property and for the development of a
residential project on the site.
H. Habitat will sell the residences to Qualified Households in a manner consistent
with the DDA between Agency and Habitat.
' L The Project requires a density bonus as authorized by Section 9-3.505 of the San
Juan Capistrano Municipal Code.
J. This Declaration is a condition to the Project Approval as a condition to the Site
being granted and developed under a density bonus, Government Code Section 65915, San Juan
Capistrano Municipal Code Section 9-3.505, the DDA, and the Grant Deed transferring the
Property to Habitat.
DECLARATION
OF
CONDITIONS, COVENANTS, AND RESTRICTIONS
NOW, THEREFORE, in consideration of the representations, covenants, and
obligations of Habitat contained in this Agreement, Habitat, on behalf of itself and its successors
and assigns, hereby covenants and agrees as follows:
1. Definitions. For purposes of this Agreement, The capitalized terms used herein shall
have the following meanings:
"Area Median Income" shall mean the median income for Orange County, California,
adjusted for household size, as published and periodically updated by the State Department of
' Housing and Community Development pursuant to Section 50079.5 of the California Health and
Safety Code.
2
"Affordable Housing Cost" shall mean a monthly payment which, including a reasonable
utility allowance, does not exceed:
For a Very Low Income Household, one -twelfth (1/12) of thirty percent (30%) of
fifty percent (50%) of Area Median Income, and
For a Low Income Household, one -twelfth 11/12) of thirty percent (30%) of
eighty percent (80%) of Area Median Income.
"Affordable Sales Price" shall mean a Transfer price established by the formula described
in Section 14 below.
"Agency" means the San Juan Capistrano Community Redevelopment Agency,
California.
"DDA" is the agreement entered into between Habitat and the Agency authorizing
construction of a residential project on the Site.
"Declaration" means this Declaration of Covenants and Restrictions (Calle Rolando
Villas Condominiums, Tract 17027), recorded in Official Records of Orange County, California,
as it may be amended or restated from time to time.
"Deed Restriction" means the restrictions appearing in the grant deed conveying title
from Habitat to the Owner,
"Equity" means the portion of the value of a residence that is left after certain costs are
deducted. The amount of Equity is calculated according to. Section 15 below.
"Owner Equity Share" means the portion of Equity that the Owner is entitled to retain
after a Transfer calculated pursuant to Section 15.2 below.
"Habitat Equity Share" means the portion of the Equity that Habitat retains after a
Transfer calculated pursuant to Section 15.3 below.
"Foreclosure -Related Transfer" means the acquisition of any real property interest in a
residence by private or judicial foreclosure, or by a deed in lieu of foreclosure.
"Fund.for Humanity" means the fund established by Habitat into which payments from
the Habitat Note are placed,
"Habitat" means Habitat for Humanity of Orange County, Inc., a California nonprofit
corporation.
"Habitat Note" means the promissory note signed by the Owner in favor of Habitat
secured by the Habitat Deed of Trust.
' "Habitat Deed of Trust" is the deed of trust recorded against the residence identifying
Habitat as the beneficiary and the Owner as the trustor.
"Owner" means each person acquiring an ownership interest in any residence in the
Proj ect.
"Project" means the residential project constructed by Habitat on the Site.
"Qualified Household" means a person or a household whom Habitat determines is
qualified to participate in the ownership of a residence in the Project both (a) economically as
described in Section 8.1 below, and (b) non -economically as described in Section 8.2 below.
"Qualified Transfer" means a Transfer meeting the Qualified Transfer Conditions.
"Qualified Transfer Conditions" means the conditions established in either Section 9.1,
9.2 or 9.3 below.
"Qualifying Improvements" means any capital improvement, as opposed to repairs and
maintenance, installed by the Owner which satisfies all of the criteria set forth in Section 14.8 of
this Declaration.
I "Right of First Refusal" means Habitat's or Agency's right of first refusal to purchase
any residence in the Project upon any proposed Transfer of such residence established in this
Declaration.
"Refusal Period" is the thirty (30) days following Habitat's receipt of a complete Transfer
Notice.
"Refusal Price" is the amount Habitat pays to the Owner calculated in accordance with
Section 9.3.4.
"Site" means that certain real property located in the City of San Juan Capistrano, which
is located in Orange County, California, described in Exhibit A hereto. Habitat is the owner of
the Site.
"Transfer" means any sale, lease or temporary rental for any period of time, execution of
a real estate installment contract, grant of any real property interest in a residence, either
voluntarily or involuntarily, including allowing the recordation of a deed of trust or mortgage
which creates a lien on the residence, or a transfer upon the death of an Owner.
"Transferee" means any person who will acquire a residence pursuant to a Transfer.
"Transfer Notice" means the written notice meeting the requirements of Section 9.1.1
' which each Owner is required to give to Habitat before entering into any binding agreements
associated with a proposed Transfer.
4
2. Income -Restricted Units.
2.1. Habitat hereby covenants on behalf of itself, and its successors and assigns, which
covenant shall run with the land and bind every successor and assign in interest of Habitat, that,
throughout the 60 -year term of this Agreement:
2.1.1. Not less than nine (9) of the dwelling units in the Project (the "Low Income
Units' } shall be made available, rented and/or sold and occupancy -restricted to Low -Income
Households at an Affordable Housing Cost; and
2.1.2. Separate from and in addition to the foregoing "Low Income Units", not less than
eighteen (18) dwelling units in the Project ("Very Low Income Units") shall be made available,
rented and/or sold and occupancy -restricted to Very -Low Income Households, as defined below.
3. Household Selection and Reporting Requirements.
Applicants for the dwelling units shall be screened by Habitat for compliance with the
income restrictions of this Agreement. Income verification documentation, purchase
agreements, and loan documents shall be maintained by Habitat and shall be subject to
inspection by the Agency at any time upon 48 -hours advance written notice to Habitat.
4. Term of this Agreement.
This Agreement and the covenants herein shall be effective on the date hereof and shall
continue in full force and effect for a period of sixty (60) years hereafter, whereupon this
Agreement shall terminate and be of no further force or effect; provided, however, that if the
Project is for any reason not completed by Habitat and substantially occupied in accordance with
this Agreement on or before December 31, 2009, then Habitat at its election on written notice to
Agency may thereupon terminate this Agreement, surrender and waive the benefits of the Project
approval, and quitclaim the title to the site back to the Agency.
5. Covenants Run With the Land.
The covenants and agreements established in this Agreement shall be covenants running
with the land and shall, without regard to technical classification and designation, be binding on
Habitat, all Owners, and all of their successors and assigns. The covenants and restrictions by
this Declaration may be enforced by Habitat, any Owner or their successors or assigns.
6. Voluntary Submission to Extraordinary Provisions.
6.1. Each Owner acknowledges that Owner was selected by Habitat for the purchase of a
residence and that (a) Owner had no right to require Habitat to select Owner, and (b) without the
assistance of Habitat the Owner would never have acquired the residence. If special financing is
arranged by Habitat, each Owner acknowledges that Habitat had no obligation to do so, and that
such financing provided the Owner with an extraordinary benefit. Therefore, each Owner agrees
5
' that all the covenants and restrictions created by this Declaration are (a) required in order to
preserve a stock of housing for Qualified Households, (b) reasonable in light of their purposes,
and (c) approved in every respect by each Owner. Each Owner acknowledges that selection by
Habitat has given the Owner decent and affordable shelter, which is the sole benefit the Owner is
bargaining for and which the Owner has obtained. Each Owner acknowledges that selection by
Habitat is not intended to give to the Owner a business opportunity or right, expectation or
entitlement to any profits from any sale of the residence. Therefore, each Owner agrees not to
challenge the covenants and restrictions of this Declaration or any right of Habitat created
hereunder and acknowledges that the same are not an unreasonable restraint on any right to
Transfer the interest of the Owner in the residence.
6.2. By acceptance of title to a residence, each Owner expressly waives any and all
claims, demands, obligations or causes of action, including those arising out of or in connection
with the covenants and restrictions contained in this Declaration, which may exist but which the
Owner does not know or believes to exist in Owner's favor, whether the lack of knowledge or
belief is the result of ignorance, oversight, error, negligence or otherwise, and which, if known,
would materially affect the Owner's decision to accept title to the residence. In connection with
the covenants and restrictions contained in this Declaration, Owner waives all rights under
Section 1542 of the California Civil Code, which states as follows:
6.3. If any provision of this Declaration shall be determined for any reason to be illegal
or unenforceable, the remaining portions of this Declaration shall not be affected thereby and
shall remain in full force and effect.
7. Occupancy and Ownership Restricted to Qualified Households.
During the term of this Declaration, the goal is for all Owners of the residences in the
Project and the occupants of residences in the Project to be persons who qualify as Qualified
Households as of the commencement of their ownership or occupancy of the residence. The fact
that a person no longer qualifies as a Qualified Household after the commencement of his or her
ownership or occupancy shall not of itself invalidate such persons' rights of ownership or
occupancy so long as such person is otherwise in compliance with the provisions of this
Declaration, the Habitat Note and the Habitat Deed of Trust (if applicable), and the Deed
Restriction. The sole purpose of Habitat in constructing the Project is to provide an inventory of
affordable housing which is available to Qualified Households.
8. Qualified Household.
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH A CREDITOR DOES NOT KNOW OR SUSPECT TO
'
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
6.3. If any provision of this Declaration shall be determined for any reason to be illegal
or unenforceable, the remaining portions of this Declaration shall not be affected thereby and
shall remain in full force and effect.
7. Occupancy and Ownership Restricted to Qualified Households.
During the term of this Declaration, the goal is for all Owners of the residences in the
Project and the occupants of residences in the Project to be persons who qualify as Qualified
Households as of the commencement of their ownership or occupancy of the residence. The fact
that a person no longer qualifies as a Qualified Household after the commencement of his or her
ownership or occupancy shall not of itself invalidate such persons' rights of ownership or
occupancy so long as such person is otherwise in compliance with the provisions of this
Declaration, the Habitat Note and the Habitat Deed of Trust (if applicable), and the Deed
Restriction. The sole purpose of Habitat in constructing the Project is to provide an inventory of
affordable housing which is available to Qualified Households.
8. Qualified Household.
8. 1. Economic Qualifications. In order for a person or household to qualify
economically as a very -low income household, that person or household may earn no more than
fifty percent (50%) of the current median income in the Orange County Standard Metropolitan
Statistical Area, as defined by the United States Department of Housing and Urban
Development. In order for a person or household to qualify economically as a low income
household, that person or household may earn no more than eighty percent (80%) of the current
median income in the Orange County Standard Metropolitan Statistical Area, as defined by the
United States Department of Housing and Urban Development. No person shall be a Qualified
Household if he or she owns any improved real property at the time he or she takes possession of
a residence. The proposed Transferee must also represent and warrant that he, she or it intends
to personally and continuously occupy the residence as a sole residence during the term of the
affordability period. Habitat shall have the right to determine in its sole discretion whether any
person or household is a Qualified Household.
8.2. Non -Economic Qualifications. In addition to Economic Qualifications, Habitat may
consider non -economic characteristics of each person or household to determine who shall
purchase or lease a residence. Each Owner acknowledges that Habitat has the right to select
Qualified Households who approve of and support Habitat's purposes and activities.
8.3. Independent Determinations. The fact that Habitat determines that a, person or
household is qualified economically does not give such person or household any right or
entitlement to be selected by Habitat to purchase or lease a residence; Habitat must also find that
such person or household qualifies non -economically. The reverse is also true.
9. Qualified Transfer/All Other Transfers Void.
During the term of this Declaration, every Transfer of a residence other than a Transfer to
Habitat in accordance with the provisions of Section 9.2 or 9.3 must be both (a) a Qualified
Transfer, and (b) made to a Qualified Household. Any Transfer which does not meet all the
Qualified Transfer Conditions shall be void, unless Habitat and Agency waive any Qualified
Transfer Conditions. The waiver must be in writing and will apply only to the Transfer or
Qualified Transfer Conditions identified in the waiver.
9.1. Voluntary Transfers.
9.1.1. Transfer Notice. Prior to entering into any binding agreements associated with
any proposed Transfer, the Owner shall deliver to Habitat a Transfer Notice which sets forth (a)
the price and terms of the transfer, (b) the residence address, and (c) adequate information about
the proposed Transferee to allow Habitat to determine if the proposed Transferee is a Qualified
Household. The Transfer Notice shall not be deemed to be complete until all the required
information has been provided. The Transfer Notice must be sent by certified U.S. mail, return
receipt requested, to Habitat at 2200 South Ritchey, Santa Ana, California 92705. Habitat may,
by recording a notice in the Official Records of Orange County give public notice of a new
address to which a Transfer Notice must be sent.
' 9.1.2. Qualified Household. The Transferee must be a Qualified Household. The Owner
shall be responsible for providing to Habitat such economic and non -economic information as
Habitat may require to evaluate the proposed Transferee to determine if, in the sole and absolute
discretion of Habitat, the proposed Transferee is a Qualified Household. Owner and Habitat
acknowledge that the Owner may not have identified a proposed Transferee at the time it
delivers a Transfer Notice to Habitat. Therefore, Habitat shall not be deemed to have received a
complete Transfer Notice until Habitat has received sufficient information about the proposed
Transferee to make that determination.
9.1.3. Affordable Sales Price. The Transfer price must be equal to or less than the
Affordable Sales Price as determined solely by Habitat. Within fifteen (15) days of its receipt of
a Transfer Notice, Habitat shall approve or disapprove in writing the Transfer price proposed by
the Owner. If the Owner is claiming any adjustment for Qualifying Improvements, Habitat shall
approve or disapprove the Affordable Sales Price no later than the earlier to expire of (a) fifteen
(15) days from Habitat's receipt of the complete Transfer Notice, or (b) in cases where the
Owner is claiming Qualifying Improvements, twenty (20) days from the date that (i) the
residence is made available to Habitat for inspection and establishment of the value of any
Qualifying Improvements, and (ii) Habitat receives all required substantiating documents
establishing the value of the claimed Qualifying Improvements. If Habitat fails to approve or
disapprove the proposed Transfer price and the proposed value of any Qualifying Improvements
in writing by the applicable deadline, the proposed Transfer price and the proposed value of any
Qualifying Improvements shall be deemed disapproved.
' 9.1.4. Limited Duration to Consummate Transfer. The Owner shall have a period of
nine (9) months from Habitat's receipt of a complete Transfer Notice to consummate the
Transfer of the residence for the price and terms established pursuant to this Declaration. If a
Qualified Transfer has not been consummated within that period, the Owner shall not attempt
any further efforts to Transfer the residence until Owner again gives Habitat a Transfer Notice
j and again satisfies all the Qualified Transfer conditions.
9.1.5. Refusal Period. The Right of First Refusal shall be exercisable by Habitat within
the Refusal Period.
9.2. Transfer to Habitat. Habitat may, at any time, elect to purchase a residence upon the
request of the Owner. If Habitat purchases a residence from an Owner, the purchase price shall
be the same as if Habitat exercised its Right of First Refusal pursuant to Section 11 of this
Declaration.
9.3. Transfers Associated with Foreclosure.
9.3.1. Generally. Within thirty (30) days after receiving a Transfer Notice or notice of a
Foreclosure -Related Transfer or the issuing of a notice of default under a Habitat Deed of Trust,
Habitat may exercise its Right of First Refusal. If Habitat does not exercise the Right of First
Refusal and either a private or judicial foreclosure sale is conducted, no person shall be allowed
to bid or acquire the residence through a Foreclosure -Related Transfer unless Habitat has first
determined that such person is a Qualified Household pursuant to Habitat's procedures in effect
at that time.
9.3.2. Qualified Households Only May Bid. The notice of default and the notice of sale
in a private foreclosure sale shall give notice of this Declaration and its restrictions, including the
requirement that all bidders at a private foreclosure sale be Qualified Households. Any judicial
order for foreclosure shall also give public notice that all bidders at the judicial foreclosure sale
must be Qualified Households. The telephone number and address of Habitat shall be contained
in the notice of default and notice of sale of a private foreclosure, and in the judicial order for
foreclosure of a judicial foreclosure. Habitat shall determine whether such prospective bidders
are Qualified Households and such persons shall be required to submit an application to Habitat
for such determination pursuant to Habitat's procedures in effect at that time.
9.3.3. Acquisition After Foreclosure. If Habitat determines that a residence has been
acquired through a Foreclosure-Related Transfer by someone who is not a Qualified Household,
Habitat shall have the independent right, but not the duty, to either exercise the Right of First
Refusal or void the Transfer.
9.3.4. Right of First Refusal Price. if Habitat exercises the Right of First Refusal prior to
the completion of the foreclosure sale or deed in lieu of foreclosure, the Refusal Price shall be
the "Owner Equity Share" (which is subject to restrictions in the case of a foreclosure as
described below and which shall be paid to the Owner in default) plus the balance of the loan
being foreclosed (which shall be paid to the holder of such loan), If Habitat is the holder of such
a loan, Habitat need not actually pay the amount of the loan to itself; Habitat shall instead cancel
the loan. If Habitat exercises the Right of First Refusal because (a) Habitat did not become
aware of the foreclosure sale in time to exercise the Right of First Refusal, or (b) the successful
bidder at a foreclosure sale is not a Qualified Household, the Refusal Price shall be the lesser of
the Owner Equity Share that the borrower under the Habitat Deed of Trust would have been
entitled to if the residence had been sold, or the amount paid by the successful bidder at the
foreclosure sale, without interest. No Transferee of a Foreclosure-Related Transfer may refuse
to accept Habitat's tender of the Refusal Price and thereby attempt to avoid the effects of these
restrictions and any such attempted Transfer shall be void from the beginning.
10. No Further Encumbrances.
Each Owner shall be allowed to encumber the residence with a single purchase money
deed of trust whether such deed of trust is a Habitat Deed of Trust or a deed of trust in favor of
another lender. Encumbering the title to a residence with more than a single purchase money
deed of trust is prohibited and shall constitute a default under this Declaration and the Deed
Restriction. Encumbering the title to a residence with one or more deeds of trust by Owner
subsequent to a Transfer is also prohibited and shall constitute a default under this Declaration
and the Deed Restriction. Each owner acknowledges that Habitat has a substantial interest in
promoting stability of ownership in the Project and that the restriction on further encumbrance is
calculated to discourage any Owner fiom incurring debt secured by the residence in excess of a
first purchase money deed of trust and thus will prevent potential foreclosure under such
' additional deeds of trust. Owner voluntarily accepts such restrictions by accepting a deed for his
or her residence.
11. Right of First Refusal.
Habitat hereby reserves the Right of First Refusal to purchase any residence in the Project
upon any proposed Transfer of such residence. Whenever Habitat receives a Transfer Notice,
Habitat may immediately exercise the Right of First Refusal and repurchase the residence.
Habitat has no obligation to allow a Transfer to the proposed Transferee, even if the proposed
Transferee is a Qualified Household and the proposed Transfer is a Qualified Transfer.
11.1. Refusal Price. Habitat shall have the right to purchase the residence from the
Owner by paying to the Owner the Owner Equity Share in cash within ninety (90) days of the
exercise of the Right of First Refusal by Habitat.
11.2. Effect of Failure to Record Waiver. If Habitat elects not to exercise the Right of
First Refusal with respect to the residence, the Agency shall have the right to exercise the Right
of First Refusal with respect to the residence. If the Agency elects not to purchase the residence
from the Owner, Habitat shall record within the Refusal Period, a notice of waiver in the Official
Records of Orange County stating that it has waived its Right of First Refusal. Such waiver shall
be limited to the proposed Transfer of the specified residence upon the terns set forth in the
Transfer Notice. Such waiver shall not constitute a waiver for any other future Transfers. If the
i' notice of waiver is not recorded, it shall be presumed that Habitat (or the Agency) has not waived
the Right of First Refusal.
12. Rentals or Lease.
FJ
The sole purpose of constructing the Project is to provide owner -occupied housing for
Qualified Households. To be eligible to be a Qualified Household, the household must
personally and continuously occupy the residence as his, her or their personal and exclusive
residence. Therefore, a proposed rental or lease of the residence by the Owner is strictly
prohibited unless Habitat grants an exception pursuant to Section 12.1 below.
12.1. Exception for Certain Temporary Rentals. Habitat may grant an exception to the
rental restriction if Habitat determines in its sole and absolute discretion that extenuating
circumstances justify the temporary rental of the residence by the Owner, as when the Owner
must temporarily relocate to another area of the country but shall soon return. However, even if
Habitat allows the temporary rental of the residence, the tenant/Transferee must be a Qualified
Household.
12.2. Conditions Imposed. As a condition to granting its permission to a temporary
rental or lease, Habitat shall have substantial flexibility to impose new requirements upon the
Owner and the tenant as a condition to allowing such temporary rental. Those conditions
include, but are not limited to, the following:
10
12.2.1, Habitat shall have substantial flexibility in establishing an arrangement for the
treatment of payments due under the Habitat Note during a temporary rental. Habitat may
require that all rental payments be made directly to Habitat or to the Fund for Humanity. Habitat
may apply the rental payments to payments of principal and interest due on the Habitat Note.
Habitat may also apply the rental payments to the purchase of insurance and payment of taxes.
Unless specifically agreed to by Habitat in advance and in writing, no rental payments shall be
paid to the Owner and no rental payments shall be credited against any principal payments due
on the Habitat Note. Habitat shall also have the right to agree in writing in advance to abate the
principal payments due under the Habitat Note for the length of such temporary rental. Any
rental payments paid to the Fund for Humanity shall expressly not be credited against the
principal balance of the Habitat Note.
12.2.2. Habitat may allow a very short-term rental period with the right to review the
facts and circumstances of any temporary rental on a periodic basis as Habitat determines to be
necessary or convenient.
12.2.3. The rental or lease payments shall not exceed the lower of (a) the monthly
payments of the Owner on the Habitat Note, (b) an annual capitalization rate of eight percent
(8%) based on the Affordable Sales Price which would otherwise be applicable as of the date of
the proposed rental, or (c) thirty percent (309/6) of the gross monthly income of the proposed
Transferee.
13. Resales by Habitat or the Agency.
If Habitat or the Agency exercises the Right of First Refusal, Habitat/Agency shall sell
the residence to a Qualified Household selected by Habitat/Agency. The Transfer price
established by Habitat for such subsequent Transfer may, but need not be, the Affordable Sales
Price or lease rate proposed when Habitat exercised its Right of First Refusal and acquires the
residence.
14. Affordable Sales Price.
14.1. No Owner of a residence shall Transfer a residence at a price higher than the
Affordable Sales Price during the term of this Declaration. After the term of this Declaration, the
Owner of a residence may Transfer it at any Transfer price the Owner desires. The Affordable
Sales Price is a Transfer price established by the following formula subject to the maximum limit
established in this Section:
ASP = PP + [PP (ROPI-OOPI) x 1/2] + IMPROVEMENTS
100
The terms used in the Affordable Sales Price formula shall have the meanings listed in Sections
14.2 to 14.6 below. The Affordable Sales Price may also be adjusted by capital improvements
made by the Owner as described in Section 14.7 below. The Affordable Sales Price may not
exceed an amount that would result in a monthly housing payment (including principal, interest,
taxes, insurance, homeowners association dues and utilities) in excess of thirty percent (30%) of
11
' fifty percent (50%) of the Orange County monthly median income for a household size
appropriate to the residence as established from time to time by the United States Department of
Housing and Urban Development (Very Low Income) or in excess of thirty percent (30%) of
eighty percent (80%) of the Orange County monthly median income for a household size
appropriate to the residence as established from time to time by the United States Department of
Housing and Urban Development (Low Income).
14.2. CPI. The CPI is the US Department of Labor, Bureau of Labor statistics,
Consumer Price Index for Urban Wage Earners and Clerical Workers (all items), Los Angeles,
Orange County/Riverside/Anaheim Area (1984 = 100). If the CPI is no longer published by the
Bureau of Labor or another government agency, Habitat shall use an Index which is widely
accepted as being a substitute for the CPI.
14.3. OCPI. The OCPI is the most recently published CPI preceding the Owner's
acquisition of a residence.
14.4. RCPI. The RCPI is the most recently published CPI preceding the proposed
Transfer.
14.5. ASP, The ASP is the "Affordable Sales Price."
14.6. PP. The PP is the "Purchase Price" at which the Owner purchased the residence.
' 14.7. Improvements. "Improvements" are the total value of those Qualifying
Improvements made to the residence by the Owner. A Qualifying Improvement is any capital
improvement, as opposed to repairs and maintenance, installed by the Owner which satisfies all
the criteria set forth below.
14.8. Qualifyink Improvements. When calculating the Affordable Sales Price, the value
of the Qualifying Improvements cannot exceed a total of ten percent (10%) of the Purchase
Price. The value of the Qualifying Improvements shall be a sum equal to the original cost of
materials and labor multiplied by a fraction whose numeration is the remaining useful life of the
improvement as of the Transfer and whose denominator is the expected useful life of the
improvement as of the date of its completion. It shall be the obligation of the Owner to establish
by sufficient evidence whether any improvement is a Qualifying Improvement and the value
thereof. Habitat shall have the right to determine the value of any Qualifying Improvement in its
sole and absolute discretion. Further, in establishing the value of a Qualifying Improvement,
Habitat shall have the right to consider any damage to capital improvements in the residence and
may offset the ASP by the reasonable cost to repair such damage. Set forth below are the
qualifying criteria which each improvement must satisfy in order to be deemed a Qualifying
Improvement.
14.8.1. The improvement would be treated as a capital expenditure by the Internal
Revenue Code of 1986, as amended.
' 14.8.2. The cost of the improvement must exceed one percent (1%) of the PP.
12
14.8.3. The improvement must have a remaining expected useful life of at least five (5)
years beyond the completion of the proposed Transfer.
14.8.4. The Owner shall present substantiating documentation showing the original cost
of materials and the original cost of labor for the improvement, and the date of its installation.
15. Owner's Right to Retain Equity.
15.1 Upon any Qualified Transfer, the Owner shall be allowed to retain that portion of
the Equity allowed by the terms of this Declaration. The term "Equity", as used herein, means
the sum derived from the following formula:
Equity = ASP - Loan - Costs
As used herein, the term "Loan" refers to the remaining principal balance, including payments
that are due but have not been paid, plus any accrued but unpaid interest and all other fees,
charges and costs secured by a deed of trust encumbering the residence as of the date of the
Transfer of the residence. "Costs" refers to homeowners association dues assessed but not paid
prior to the Transfer (if any) and any penalties for nonpayment of such dues, unpaid property
taxes, the Seller's portion of any closing costs, the estimated or actual cost of repairing damage
to the residence, costs for replacing pool, mailbox or facilities keys and costs of obtaining
homeowners manuals.
15.2. Portion of Equi Retained by Owner. The portion of the Equity which the Owner
may retain upon a Transfer is derived by the following formula:
OES = NIM x (Equity)
As used herein, "OES" is the Owner Equity Share. If the Transfer is a Qualified Transfer, "N"
equals the number of years and portions of a year since the effective date of the Habitat Note to
the date of the Transfer. If the Transfer is any other kind of Transfer, "N" equals the number of
years and portion of a year since the date of the Habitat Note to the date the last payment made
wider the Habitat Note was made by Owner. "M" equals the original full term of the Habitat
Note. The portion of a year shall be calculated on the basis a three hundred sixty (360) day year.
The Owner shall be allowed to retain the Owner Equity Share regardless of whether Habitat
exercised its Right of First Refusal. There is no guarantee that there will be any Equity nor that
an Owner will receive any Equity from the Transfer of the residence. Each Owner expressly
agrees that no Owner shall ever be entitled to receive a larger Owner Equity Share from a
Foreclosure -Related Transfer than such Owner might have received from a Transfer of the
residence at the Affordable Sales Price; such a result would be entirely unintended and
inequitable because Habitat's selection of an Owner to acquire a residence constitutes a
substantial charitable gift to that Owner. Therefore, in the case of any Foreclosure -Related
Transfer, the Owner shall not be entitled to receive a larger Owner Equity Share than such
Owner would have received had the residence been sold on the date of the foreclosure sale for
the Affordable Sales Price. Habitat shall be solely entitled to any additional Equity.
13
' 15.3. Portion of Equity Retained by Habitat. Upon every Qualified Transfer, Habitat
shall have the right to (a) allow the Transfer if the Transfer qualifies, or (b) exercise its Right of
First Refusal. If Habitat allows the Transfer, Habitat shall be paid that portion of the Equity
derived by the following formula:
HES = [1 - ( N/M )] x (Equity)
As used herein, 'TIES" (Habitat Equity Share) is the portion of the Equity which shall be
retained by Habitat. If Habitat exercises its Right of First Refusal, there shall be no need to
establish the Habitat Equity Share; the Owner shall receive the Owner Equity Share and the
Owner shall convey legal title to the residence to Habitat. As described in Section 15.1 above,
Habitat shall be entitled to any additional Equity which might result if the foreclosure sales price
of a residence exceeds the Affordable Sales Price.
16. Recordation.
Agency and Habitat shall cause a fully executed copy of this Agreement to be recorded in
the Official Records of the Orange County Recorder,
17. Enforcement.
11It is agreed that the rights granted to Habitat hereunder are of a special and unique kind
and character and that, if there is a breach by any Owner of any material provision of this
Declaration, Habitat would not have an adequate remedy at law. Each Owner agrees, therefore,
that Habitat's rights hereunder may be enforced by an action for specific performance and such
other equitable relief as is provided under the laws of the State of California. Further, each
Owner specifically acknowledges that during the term of this Declaration, the ownership of a
residence is not an unrestricted right or entitlement. Therefore, upon any determination by a
court of law or equity that the Owner has breached the terms of this Declaration, such court of
law or equity is specifically authorized to order the sale of the residence by the Owner to Habitat
for the OES. Such payment of the OES shall be made in cash to the Owner within fifteen (15)
! days of the court's determination that Owner is in breach and title shall be conveyed to Habitat
concurrently with such payment. Habitat has the right, but not the duty, to enforce the provisions
of this Declaration. Habitat shall have no liability or obligation for not enforcing the same.
18. Enforcement by Successor to Habitat.
If Habitat should cease to be an operating corporation, its successor or assignee shall
have the right to enforce the terms of this Declaration and shall have all the rights of Habitat.
Habitat shall file a notice in the Official Records of Orange County upon any assignment of its
rights and duties hereunder to a successor organization. Such successor organization shall be a
nonprofit entity qualifying under Section 501(c)(3) of the Internal Revenue Code.
19. Deed Restriction.
14
A Deed Restriction shall appear in each grant deed conveying title from Habitat to the
Owner, Such Deed Restriction shall refer to the provisions of this Declaration and shall inure to
the benefit of Habitat and the Agency.
20. Amendment.
Prior to the conveyance of title to a residence to any Owner, this Declaration may be
amended by Habitat upon Agency approval by the recordation of a supplemental declaration
which refers to this Declaration and identifies itself as an amendment to this Declaration:
Following the conveyance of title to a residence to an Owner, this Declaration may be amended
at any time and from time to time by an instrument in writing signed by at least fifty-one percent
(51%) of the Owners of the Project, upon approval by Habitai and the Agency, and by at least
fifty-one percent (51 %) of the beneficiaries of all the first deeds of trust based upon one (1) vote
for each deed of trust encumbering residences in the Project. Any such amendment shall become
effective upon the recording thereof in the Office of the County Recorder of Orange County.
21. Attorneys' Fees.
In the event of litigation arising out of this Agreement, the prevailing party shall be
entitled to recover reasonable costs and attorney's fees,
22. Miscellaneous Provisions.
22.1. Time of the Essence. Time is of the essence of this Agreement.
22.2. Notices. Formal notices, demands, and communications between Agency and
Habitat shall be given either by personal service, by overnight courier, or by mailing in the
United States mail, certified mail, postage prepaid, return receipt requested, addressed to the
principal offices of Agency or Habitat, as follows:
If to Agency: San Juan Capistrano Community Redevelopment Agency
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Executive Director
With a copy to: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: City Attorney
If to Habitat: Habitat for Humanity of Orange County, Inc.
2200 South Ritchey
Santa Ana, CA 92705
15
' Notices shall be deemed delivered three (3) business days after the date of such mailing.
Each party shall promptly notify the other party of any change(s) of address to which notice shall
be sent pursuant to this Agreement.
22.3. Constructive Notice and Acceptance. Every person who owns, occupies or
acquires any right, title, estate or interest in or to any residence or other portion of the Project
consents and agrees to every limit, restriction, easement, reservation, condition and covenant
contained in this Declaration, whether or not any reference to these restrictions is in the
instrument by which such person acquired an interest in the residence.
23. Execution in Counterparts.
The parties may execute this document in two or more counterparts; each counterpart
shall be deemed an original instrument as against any party who has executed it.
24. Pro -Forma Unit Cost Analysis.
The parties acknowledge that San Juan Capistrano Municipal Code Section 9-3.505
requires a pro -forma analysis to demonstrate per unit cost of construction if assistance is
requested.
[SIGNATURE PAGE AND NOTARY ACKNOWLEDGEMENTS FOLLOW]
16
IN WITNESS WHEREOF, the Agency and Habitat have caused this instrument to be
executed as of the date first written above.
AGENCY:
SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY
Joe Soto, Chairman
ATTEST:
Margaret M. Monahan, Secretary
APPROVED AS TO FORM:
John Shaw, Agency Counsel
HABITAT:
HABITAT FOR HUMANITY OF ORANGE
COUNTY, INC.
Chairperson
ATTEST:
Executive Director
STATE OF CALIFORNIA
COUNTY OF ORANGE
On before me, a Notary Public,
personally appeared personally known to me (or
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.
WITNESS my hand and official seal.
Notary Public
STATE OF CALIFORNIA
' COUNTY OF ORANGE )
On , before me, allotary Public,
personally appeared personally known to me (or
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.
WITNESS my hand and official seal.
Notary Public
18
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
San Juan Capistrano Community
Redevelopment Agency
32400 Paseo Adelanto
San Juan Capistrano, California 92675
Space
This document is exempt from the payment of a recording
fee pursuant to Government Code Section 27383.
GRANT DEED
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
and subject to the Affordability Covenants recorded concurrently herewith, SAN JUAN
CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a Public Body, corporate and
politic ("Grantor") hereby grants to HABITAT FOR HUMANITY OF ORANGE COUNTY,
INC., a California non-profit, public benefit corporation ("Grantee"), that certain real property
located in the County of Orange, State of California, described in Exhibit "A" and depicted in
Exhibit "B" both attached hereto and incorporated herein by this reference (the "Property").
PROVIDED that such conveyance is subject to and upon the express condition
subsequent that the Property shall be used for the development, construction, maintenance, and
operation of an affordable housing project pursuant to the 60 -year Affordability Covenants
recorded concurrently herewith. Grantee acknowledges that the conditions of the Affordability
Covenants are essential to Grantor's purposes (which include preserving decent, affordable
housing and creating home -ownership opportunities for lower income people with limited
financial resources), and Grantee agrees to and accepts the Affordability Covenants and the
conditions of this conveyance on behalf of Grantee and all of Grantee's successors and assigns.
Grantor's intention is that this condition shall continue in full force and effect for the full term of
the Affordability Covenants and shall expire upon the expiration of the Affordability Covenants.
The provisions of this Grant Deed shall bind and inure to the benefit of any successor of
Grantor. All successors and assigns of any interest hereunder shall automatically succeed to the
rights herein granted and be deemed to have assumed the obligations hereunder.
"GRANTOR"
San Juan Capistrano Community Redevelopment Agency,
A Public Body, corporate and politic
0
Grantee accepts the grant of Property pursuant to the Grant Deed and agrees to comply with all
covenants and terms set forth herein.
ATTACHMENT 4
TO EXHIBIT 1
"GRANTEE"
HABITAT FOR HUMANITY OF ORANGE COUNTY, INC., a
California non-profit, public benefit corporation
In
STATE OF CALIFORNIA )
) ss
COUNTY OF ORANGE )
On before me, the undersigned, a Notary Public
in and for said State, personally appeared
D personally known to me OR O 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.
WITNESS my hand and official seal.
Signature of Notary
[Seal]
STATE OF CALIFORNIA )
) ss
COUNTY OF ORANGE )
On before me, the undersigned, a Notary Public
in and for said State, personally appeared
❑ personally known to me OR O 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.
WITNESS my hand and official seal.
Signature of Notary
2
[Seal]
THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN TIME CITY OF SAN JUAN
CAPISTRANO, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED
AS FOLLOWS:
PARCEL 1:
THAT PORTION OF LOT 1 OF THE DANERI TRACT, IN THE CITY OF SAN JUAN
CAPISTRANO, AS SHOWN ON A MAP BLED IN BOOK 2, PAGE 22 OF RECORD OF SURVEYS,
RECORDS OF SAID ORANGE COUNTY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHERLY CORNER OF -SAID LOT 1, DEING THE WESTERLY
CORNI?R OF LOT 62 OF TRACT NO. 103, AS SHOWN ON A MAP RECORDED IN BOOK 11,
PAGES 29 TO 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE
COUNTY; THENCE SOUTH 449 06' 00" EAST 723.47 FEET ALONG THE NORTHEASTERLY
LINE OF SAID LOT I TO THE TRUE POINT OF BEGINNING;. THENCE SOUTH 49° 34' 29"
WEST 147.05 FEET; THENCE SOUTH 3° 11' 12" EAST 204.26 FEET TO THE SOUTH LINE OF
SAID LOT 1; THENCE NORTH 89 ° 46 01" EAST 193.01 FEET ALONG SAID SOUTH LINE TO
A LINE THAT DEARS SOUTH 0° 11' 13" EAST FROM AN ANGLE POINT ON THE NORTHERLY
LINE OF SAID LOT 1; THENCE NORTH 0° 11' 13" WEST 203.83 FEET TO SAID ANGLE POINT;
THENCE NORTH 440 06' 00" WEST 131.85 FEET TO THE TRUE POINT OF BEGINNING.
AN EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES OVER THAT PORTION OF LOT
1 OF THE DANERI TRACT, IN THE CITY OF SAN JUAN CAPISTRANO, AS SHOWN ON A MAP
FILED IN BOOK 2, PAGE 22 OF RECORD OF SURVEYS, RECORDS OF SAID ORANGE
COUNTY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE NORTHWESTERLY LINE OF SAID LOT 1, DISTANT SOUTH
366 56' 30" WEST 115.69 FEET FROM THE NORTHERLY CORNER OF SAID LOT 1, SAID -
NORTHERLY CORNER BEING THE WESTERLY CORNER OF LOT 62 OF TRACT NO. 103, AS
SHOWN ON A MAP RECORDED IN BOOK 11, PAGES 29 TO 33 INCLUSIVE OF
MISCELLANEOUS MAPS RECORDED IN BOOK 11, 'PAGES 29 TO 33 INCLUSIVE OF
MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY; THENCE SOUTH 42 ° 40' 30"
EAST 638.31 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE
NORTHEASTERLY HAVING A RADIUS OF 55.21 FEET; THENCE SOUTHEASTERLY ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 420.29' 17 AS DISTANCE OF 40.94 FEET TO
A REVERSE CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 40-00 FEET;
THENCE SOUTHEASTERLY, SOUTHWESTERLY AND NORTHWESTERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 260 58'34" A DISTANCE OF 184.29 FEET TO A
REVERSE CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 55.21 FEET; THENCE
NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 429 29' 17" A
DISTANCE OF 40.94 FEET; THENCE NORTI{ 420 40' 38" WEST 632.81 FEET TO SAID
NORTHWESTERLY LINE; THENCE NORTH 360 56'38' FAST 30.50 FEET TO THE POINT OF
BEGINNING.
EXCEPTING THEREFROM THAT PORTION THEREOF LYING'WITNIN THE PUBLIC STREET
(ALIPAZ STREET) DESCRIBED IN THE EASEMENT DEED TO. THE CITY OF SAN JUAN
EXHIBIT A
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' CAPISTRANO, RECORDED SEPTEMBER 24, 1976 IN BOOK 11900, PAGE 831 OF OFFICIAL
RECORDS.
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ALSO EXCEPTING THE PORTION INCLUDED WnWIN PARCEL 1.
PARCEL 3:
,
THAT PORTION OF LOT 1 OF THE DANERI TRACT IN THE CITY OF SAN JUAN
CAPISTRANO, COUNTY OF ORANGE, STATE OP CALIFORNIA, AS PER MAP FILED IN BOOK
2 PAGE 22 OF -RECORD OF SURVEYS IN THE OFFICE OF THE COUI4TY RECORDER OF SAID
OYOF A LINE OFLO SOUTH 0' 11' 13- EAST FROM AN
ANGLEPOINT ON THENRTHERLY LINE SAID SAID ANGLE POINT BEING 011TH
44' 06' 00' EAST 861.32 FEET FORM THE MOST NORTHERLY CORNER -THEREOF.
Assessor's Parcel No. 668-421-03, 04
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SCHEDULE OF PERFORMANCE
For the purposes of this Schedule of Performance, the "Date of Agreement' is
September 19, 2006. The Executive Director may extend by not more than sixty (60)
days the time under this Schedule of Performance by which any obligation of Developer
shall be performed.
ATTACHMENT 5
TO EXHIBIT 1
MILESTONES
COMPLIANCE DATE
1.
Satisfaction of Agency Conditions
Not later than June 30, 2007.
Precedent. Developer shall satisfy
the Agency Conditions Precedent.
2.
Closing. The Conveyance is
Within thirty (30) days after the
effected (by the Agency Deed, to be
satisfaction of the Agency Conditions
evidenced and made of public
Precedent.
record by the recording of the
Agency Deed along with the
Affordability Covenants).
3.
Commencement of Construction.
Not later than June 30, 2007.
The Developer shall have
commenced construction of the
Improvements.
4.
Completion of Construction.
Within eighteen (18) months after the
commencement of construction.
Developer shall complete
construction of the Improvements.
5.
Units Offered for Sale. Developer
Within one hundred (100) days after the
causes the Units to be offered for
completion of construction.
sale.
ATTACHMENT 5
TO EXHIBIT 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
San Juan Capistrano Community
Redevelopment Agency
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Executive Director
(Spam Above for Recorder's Use Only)
This document is exempt from the payment of a
recording fee pursuant to Government Code Section
27383.
CERTIFICATE OF COMPLETION
THIS CERTIFICATE OF COMPLETION (the "Certificate") is made by the SAN
JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body,
corporate and politic (the "Agency"), in favor of HABITAT FOR HUMANITY OF ORANGE
COUNTY, INC., a California non-profit, public benefit corporation (the "Developer', as of the
date set forth below.
RECITALS
A. Agency and the Developer have entered into that certain Disposition and
Development Agreement for Affordable Housing (the "DDA") dated September 19, 2006
concerning the development of certain real property situated in the City of San Juan Capistrano,
California, as more fully described in Exhibit "A" attached hereto and made a part hereof (the
"Site").
B. As referenced in Section 4,14 of the DDA, Agency is required to furnish the
Developer or.its successors with a Certificate of Completion upon completion of construction of
the ."Improvements" (as defined in Section 1 of the DDA), which Certificate is required to be in
such form as to permit it to be recorded in the Recorder's Office of Orange County. This
Certificate is conclusive determination of satisfactory completion of the construction and
development required by the DDA.
C. Agency has conclusively determined that the construction and development of the
Development has been satisfactorily completed.
NOW, THEREFORE, Agency hereby certifies as follows:
1. Agency does hereby certify that the Improvements to be constructed by the
Developer have been fully and satisfactorily completed in full conformance with the DDA.
2. This Certificate shall not constitute evidence of compliance with or satisfaction of
any obligation of Developer to any holder of a mortgage, or any insurer of a mortgage, securing
money loaned to finance construction work on the Site, or any part thereof.
:ATTACHMENT 6
TO EXHIBIT 1
' 3. This Certificate shall not constitute evidence of Developer's compliance with
those covenants in the DDA that survive the issuance of this Certificate.
4. This Certificate is not a Notice of Completion as referred to in California Civil
Code Section 3093.
5. Nothing contained in this instrument shall modify in any other way any other
provisions of the DDA (including without limitation the attachments thereto).
IN WITNESS WHEREOF, Agency has executed this Certificate of Completion this
_ day of 200_.
SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY, a public
body, corporate and politic
Executive Director
ATTEST:
i, Secretary