HomeMy WebLinkAbout2009 CON CDC San Diego Habitat for Humanity - DDA 1441 Harding AvenueDISPOSITION AND DEVELOPMENT AGREEMENT
By and Between the
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF NATIONAL CITY
and
SAN DIEGO HABITAT FOR HUMANITY, INC.
(1441 Harding Avenue)
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TABLE OF CONTENTS
Page
100. DEFINITIONS 6
200. CONVEYANCE OF TILE SITE 13
201. Purchase Price 13
202. CDC Loan 13
202.1 Developer Promissory Note 13
202.1 Forgiveness of the Developer Note 13
203. Default 14
204. Escrow 14
204.1 Costs of Escrow 14
204.2 Escrow Instructions 14
204.3 Authority of Escrow Agent 14
204.4 Closing 15
204.5 Termination 15
204.6 Closing Procedure 16
205. Review of Title 16
206. Title Insurance 17
206.1 Developer Title Policy 17
206.2 CDC Title Policy 17
207. Conditions of Closing 17
207.1 CDC's Conditions of Closing 17
207.2 Developer's Conditions of Closing 18
208. Representations and Warranties 19
208.1 CDC Representations and Warranties 19
208.2 Developer's Representations and Warranties �0
209. Studies and Reports ' 1
210. Condition of the Site. 21
210.1 Disclosure 21
210.2 No Further Warranties As To Site ''
210.3 Developer Precautions After Closing 21
210.4 Required Disclosures After Closing 21
210.5 Developer Indemnity 22
300. DEVELOPMENT OF THE SITE �2
301. Scope of Development -r)
302. Design Review. 22
302.1 Concept Drawings
302.2 Landscape and Grading Plans 22
302.3 Constrution Drawings ""3
303. CDC Review and Approval
303.1 Standards for Disapproval
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" 3
303.2 Revisions 23
303.3 Defects in Plans '4
304. Land Use Approvals "4
305. Schedule of Performance 74
306. Cost of Construction 24
307. Insurance Requirements 74
308. Developer's Indemnity 25
309. Rights of Access 75
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310. Compliance With Laws �5
310.1 Nondiscrimination in Employment 27
310.2 Taxes and Assessments �7
310.3 Liens and Stop Notices 27
311. Completion of the Project "8
312. Release of Construction Covenants "8
313. Financing of the Improvements 28
313.1 No Encumbrances Except Mortgages or Deeds of Trust "8
313.2 Right of CDC to Cure Mortgage or Deed of Trust Default 29
314. Administrative Requirements. �9
314.1 Records and Reports 29
314.2 Federal and State Requirements 30
314.3 Lead Based Paint 30
314.4 Certification Concerning Debarment and Suspension 30
314.5 Flood Insurance 31
314.6 Fire Protection and Safety 31
314.7 Accessibilty Standards 31
314.8 Section 3 Requirements 31
314.9 Drug Free Workplace 32
314.10 Lobbying Prohibition 37
400. COVENANTS AND RESTRICTIONS 33
401. Use in Accordance with Redevelopment Plan 33
402. Affordable Units. 33
402.1 Developer Covenants Concerning Affordable Units 33
402.2 'Timing 33
402.3 Execution and Recordation of the Declaration 33
402.4 45-Year Affordability 33
402.5 No Sales to Related Parties 34
402.6 CI)C Consent to Sales 34
403. Maintenance Covenants 34
404. Obligation to Refrain from Discrimination 34
404.1 State and Federal Requirements 34
404.2 Additional Requirements 35
404.3 Fair Housing Laws 35
405. Nondiscrimination Covenants 35
406. Effect of Violation of the Terms and Provisions of this Agreement After
Completion of Construction 36
500. DEFAULTS AND REMEDIES 36
501. Default Generally 36
502. Institution of Legal Actions 37
503. Termination by Developer 37
504. Termination by CDC 37
505. Reentry and Revesting of Title in CDC After the Closing and Prior to
Completion of Construction 37
505.1 Right of Reentry 37
505.2 Limitations on Right of Reentry 38
505.3 Right of Reentry Referenced in Grant Deed 38
505.4 Resale by CDC After Revesting 38
505.5 Application of Resale Proceeds 38
506. Acceptance of Service of Process 39
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507. Rights and Remedies are Cumulative 39
508. Inaction Not a Waiver of Default 39
600. GENERAL PROVISIONS 40
60] . Notices, Demands and Communications Between the Parties 40
602. Enforced Delay; Extension of Times of Performance 40
603. Transfers of Interest in Site or Agreement 40
603.1 Prohibition 40
603.2 Permitted Transfers 41
603.3 Successors and Assigns 42
603.4 Assignment by CDC 42
604. Non -Liability of Officials and Employees of CDC and Developer 42
605. Relationship Between CDC and Developer 42
606. CDC Approvals and Actions 42
607. Counterparts 42
608. integration 42
609. No Real Estate Brokerage Commissions 42
610. Attorneys' Fees 43
611. Titles and Captions 43
612. interpretation 43
613. No Waiver 43
614. Modifications 43
615. Severability 43
616. Computation of Time 43
617. Legal Advice 44
618. Time of Essence 44
619. Cooperation 44
620. Conflicts of Interest 44
621. Exhibits Attachments and Recitals incorporated 44
622. Applicable Law 44
623. Authority to Sign 44
ATTACHMENTS
Attachment No. 1 Developer Note
Attachment No. 2 Developer Deed of Trust
Attachment No. 3 Grant Deed
Attachment No. 4 Release of Construction Covenants
Attachment No. 5 Schedule of Performance
Attachment No. 6 Scope of Development
Attachment No. 7 Site Plan
Attachment No. 8 Site Legal Description
Attachment No. 9 Proforma
Attachment No. 10 Resale Restriction
Attachment No. 11 Agreement Affecting Real Property
Attachment No. 12 Environmental Indemnity
Attachment No. 13 Notice of Affordability Restrictions
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DISPOSITION AND DEVELOPMENT AGREEMENT
(1441 Harding Avenue)
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is
entered into this 21 day of April, 2009 by and between the Community Development
Commission of the City of National City, a public body, corporate and politic ("CDC"), and San
Diego Habitat for Humanity, Inc., a California nonprofit corporation ("Developer").
RECITALS
A. In furtherance of the objectives of the California Community Redevelopment
Law, CDC and Developer desire to redevelop a certain approximately 8,625 square foot parcel
located in the National City Redevelopment Project (the "Project") at 1441 Harding Avenue in
the City of National City, County of San Diego, California (the "Site"), which is more
particularly described on the Site Legal Description, as defined below. The CDC currently owns
the Site. The Site is unimproved.
B. CDC and Developer desire by this Agreement for CDC to agree to sell the Site to
Developer and for Developer to agree to construct on the Site three (3) for -sale, single family
homes (the "Affordable Units"), as set forth on the Site Plan attached hereto as Attachment No.
7, together with certain off -site improvements (collectively, the "Improvements").
C. The CDC purchased the Site with HUD HOME funds. Such funds are to be used
solely for the construction, use and occupancy of affordable housing in accordance with 24 Code
of Federal Regulations Part 92. Developer and the CDC agree to take any and all steps necessary
to ensure compliance with the HUD HOME program, including without limitation compliance
with 24 Code of Federal Regulations Part 92. The CDC agrees to sell the Site to Developer for
the sum of One and No/100 Dollars ($1.00) (the "Purchase Price") and to provide gap funding to
assist in development of the Affordable Units, as defined below, in the original amount of up to
Two Hundred Seventy -Two Thousand One Hundred Nineteen and No/100 Dollars ($272,119.00)
(the "Developer Note").
D. Upon the timely completion of the Affordable Units in accordance with this
Agreement, the Developer Note will be partially forgiven and the remaining balance will convert
to first-time homebuyer loans to Low -Income Households to assist those Low -Income
Households with the purchase of Affordable Units, as provided in more detail herein. A portion
of the Developer Note will be assumed by each eligible low income purchaser of an Affordable
Unit, concurrently with the purchase of an Affordable Unit. At such time the purchaser of the
Affordable Unit shall execute a promissory note in favor of the CDC (the "First -Time
Homebuyer Note"), in an amount to be determined as set forth in this Agreement. The
Affordable Units shall also be subject to a Resale Restriction in the form set forth herein as
Attachment 10, secured by a deed of trust. The First -Time Homebuyer Notes shall not require
monthly payments and will be due and owing only upon sale, transfer, further encumbrance,
refinancing, the failure of the Low -Income Households to occupy the Affordable Unit, or other
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transfer, as defined in the First -Time Homebuyer Note and Resale Restrictions. The initial sale
price of the Affordable Units shall not exceed the Maximum Purchase Price, as defined below.
E. CDC's sale of the Site to Developer and Developer's purchase of the Site and
construction of the Improvements on the Site pursuant to the terms of this Agreement, are in the
vital and best interest of the City and the health, safety, morals and welfare of its residents, and in
accord with the public purposes and provisions of applicable state and local laws and
requirements under which the redevelopment of the Project has been undertaken.
F. The qualifications and identity of Developer, and its principals, are of particular
concern to the community and CDC. Developer further recognizes that it is because of such
qualifications and identity that CDC is entering into the Agreement with Developer. No
voluntary or involuntary successor in interest of Developer shall acquire any rights or powers
under this Agreement except as expressly set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, CDC and Developer hereby agree as follows:
100. Definitions.
"Affordable Units" shall mean the three (3) for -sale, single family homes, whose sale and
occupancy are restricted as specified in this Agreement and the Resale Restriction. Developer
shall ensure that each of the Affordable Units meets all of the requirements set forth in Code of
Federal Regulations §92.254(a). Each of the Affordable Units shall initially be sold only to a
First -Time Homebuyer that is a Low -Income Household for an amount less than or equal to the
then applicable Maximum Purchase Price.
"Agreement" means this Disposition and Development Agreement between CDC and
Developer.
"Agreement Affecting Real Property" shall mean the Agreement Affecting Real Property
to be recorded against the Site upon Closing, substantially in the form attached to this Agreement
as Attachment No. 11.
"Area Median Income" shall mean the area median income defined by the Department of
Housing and Urban Development (HUD) as the then current area median income for the San
Diego Standard Metropolitan Statistical Area, established periodically by HUD and published in
the Federal Register, as adjusted for family size. In the event HUD ceases to publish an
established area median income as aforesaid, CDC may, in its sole discretion, use any other
reasonably comparable method of computing area median income.
"CDC" means the Community Development Commission of the City of National City,
CDC, a public body, corporate and politic, exercising governmental functions and powers and
organized and existing under Chapter 2 of the Community Redevelopment Law of the State of
California, and any assignee of or successor to its rights, powers and responsibilities.
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"CDC's Conditions Precedent" means the conditions precedent to the Closing to the
benefit of CDC, as set forth in Section 207.1 hereof.
"CDC Title Policy" is defined in Section 206.2 hereof.
"City" means the City of National City, a California municipal corporation.
"Closing" means the close of Escrow for the conveyance of the Site from CDC to
Developer, as set forth in Section 204.4 hereof.
"Closing Date" means the date of the Closing as set forth in Section 204.4 hereof.
"Concept Drawings" means the plans and drawings to be submitted and approved by
CDC, as set forth in Section 302.1 hereof.
"Conditions of Title" is defined in Section 205 hereof.
"Construction Deed of Trust" means any deed of trust recorded against the Site for
purposes of obtaining construction financing for the Site.
"Construction Drawings" means the plans and drawings to be submitted and approved by
CDC, as set forth in Section 302.3 hereof.
"Construction Lender" means the beneficiary under the Construction Deed of Trust.
"Date of Agreement" means the date upon which this Agreement shall have been signed
by CDC.
"Default" means the failure of a party to perform any action or covenant required by this
Agreement within the time periods provided herein following notice and opportunity to cure, as
set forth in Section 501 hereof.
"Developer" means San Diego Habitat for Humanity, Inc., a California nonprofit, public
benefit corporation. Where the term Developer is used herein, such term shall include any
permitted nominee, assignee or successor in interest as herein provided.
"Developer's Conditions Precedent" means the conditions precedent to the Closing to the
benefit of Developer, as set forth in Section 207.2.
"Developer Deed of Trust" means the deed of trust securing the Developer Note, in the
form and format attached hereto as Attachment No. 2, which shall be subordinated to any
Construction Deed of Trust, such subordination shall be in a form acceptable to the CDC in its
reasonable discretion.
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"Developer Note" means the recourse promissory note, in the form and format attached
hereto as Attachment No. 1, executed by Developer in favor of CDC.
"Developer Title Policy" is defined in Section 206.1 hereof.
"Environmental Indemnity" shall mean the Unsecured Environmental Indemnity
Agreement to be executed by Developer and CDC at Closing, substantially in the form attached
to this Agreement as Attachment No. 12.
"Environmental Laws" means any federal, state or local law, statute, ordinance or
regulation pertaining to environmental regulation, contamination or cleanup of any Hazardous
Materials, including, without limitation, (i) the California Hazardous Waste Control Act
(California Health and Safety Code §25100 et seq.), (ii) the Carpenter -Presley -Tanner Hazardous
Substance Account Act (California Health and Safety Code §25300 et seq.), (iii) the Hazardous
Materials Release Response Plans and Inventory (California Health and Safety Code §25500 et
seq.), (iv) Underground Storage of Hazardous Substances (California Health and Safety Code,
§25280 et seq.), (v) Article 9 or Article 11 of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (vi) the Safe Drinking Water and Toxic Enforcement Act (California
Health and Safety Code, §25249 et seq.), (vii) the Porter -cologne Water Quality Control Act
(California Water Code, §13000 et seq.), (viii) the Federal Water Pollution Control Act (33
U.S.C. §1271 et seq.), (ix) the Resource Conservation and Recovery Act (42 U.S.C. §6901 et
seq.), (x) the Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. §9601 et seq.), (xi) the Safe Drinking Water Act (14 U.S.C. §300f et seq.), (xii) the
Hazardous Materials Transportation Act (49 U.S.C. §5101 et seq.), (xiii) the Toxic Substances
Control Act (15 U.S.C. §2601 et seq.), (xiv) the Federal Insecticide, Fungicide and Rodenticide
Act (7 U.S.C. § 136, et seq.), (xv) the Clean Air Act, 42 U.S.C. (§7401 et seq.) or (xvi) any state
or federal lien or "superlien" law, any environmental cleanup statute or regulation, or any permit,
approval, authorization, license, variance or permission required by any governmental authority
having jurisdiction.
"Escrow" is defined in Section 204 hereof.
"Escrow Agent" is defined in Section 204 hereof.
"Exceptions" is defined in Section 205 hereof.
"First -Time Homebuyer" means a purchaser (a) that has not owned a home within the
three-year (3-year) period immediately preceding the date of the purchase of the Affordable Unit,
(b) a displaced homemaker; or (c) a single parent.
"First -Time Homebuyer Note" means the promissory note in favor of the CDC to be
executed by each Low -Income Household purchaser of an Affordable Unit, which shall be on
terms and conditions acceptable to the CDC in its sole discretion.
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"Governmental Requirements" means all laws, ordinances, statutes, codes, rules,
regulations, orders and decrees of the United States, the state, the county, the City, or any other
political subdivision in which the Site is located, and of any other political subdivision, agency or
instrumentality exercising jurisdiction over CDC, Developer or the Site.
"Grant Deed" means the grant deed for the conveyance of the Site from CDC to
Developer, in the form of Attachment No. 3 hereto which is incorporated herein.
"Hazardous Materials" means:
(a) Those substances included within the definitions of "hazardous
substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste,"
"pollutant" or "contaminant" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. §9601 et seq.); the Resource Conservation and Recovery Act
(42 U:S.C. §6901 et seq.); the Clean Water Act (33 U.S.C. §2601 et seq.); the Toxic Substances
Control Act (15 U.S.C. §9601 et seq.); the Hazardous Materials Transportation Act (49 U.S.C.
§ 1801 et seq.); or under any other Environmental Laws;
(b) Those substances included within the definitions of "Extremely Hazardous
Waste," "Hazardous Waste," or "Restricted Hazardous Waste," under §§25115, 25117 or
25122.7 of the California Health and Safety Code, or is listed or identified pursuant to §§25140
or 44321 of the California Health and Safety Code;
(c) Those substances included within the definitions of "Hazardous Material",
"Hazardous Substance", "Hazardous Waste", "Toxic Air Contaminant", or "Medical Waste"
under §§25281, 25316, 25501, 25501.1, 25023.2 or 39655 of the California Health and Safety
Code;
(d) Those substances included within the definitions of "Oil" or a "Hazardous
Substance" listed or identified pursuant to §311 of the Federal Water Pollution Control Act, 33
U.S.C. §1321, as well as any other hydrocarbonic substance or by-product;
(e) Those substances included within the definitions of "Hazardous Waste,"
Extremely Hazardous Waste," or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title
22 of the California Code of Regulations;
(0 Those substances listed by the State of California as a chemical known
by the State to cause cancer or reproductive toxicity pursuant to §25249.9(a) of the California
Health and Safety Code;
(g) Those substances or defined as a "Hazardous Waste," Extremely
Hazardous Waste," or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title 22 of the
California Code of Regulations;
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(h) Any material which due to its characteristics or interaction with one or
more other substances, chemical compounds, or mixtures, damages or threatens to damage,
health, safety, or the environment, or is required by any law or public agency to be remediated,
including remediation which such law or public agency requires in order for the property to be
put to any lawful purpose;
(i) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual,
whether or not the presence of such material resulted from a leaking underground fuel tank;
(j) Pesticides regulated under the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. §136 et seq.;
(k) Asbestos, PCBs, and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. §2601 et seq.;
(1) Any radioactive material including, without limitation, any "source
material," "special nuclear material," "by-product material," "low-level wastes," "high-level
radioactive waste," "spent nuclear fuel" or "transuranic waste," and any other radioactive
materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42
U.S.C. §§201 1 et seq., the Nuclear Waste Policy Act, 42 U.S.C. §§10101 et seq., or pursuant to
the California Radiation Control Law, California Ilealth and Safety Code §§25800 et seq.;
(m) Any material regulated under the Occupational Safety and Health Act, 29
U.S.C. §§651 et seq., or the California Occupational Safety and Health Act, California Labor
Code §§6300 et seq.;
(n) Any material regulated under the Clean Air Act, 42 U.S.C. §§7401 et seq.
or pursuant to Division 26 of the California Health and Safety Code;
(o) Those substances listed in the United States Department of Transportation
Table (49 CFR Part 172.101), or by the Environmental Protection Agency, or any successor
agency, as hazardous substances (40 CFR Part 302);
(p) Other substances, materials, and wastes that are or become regulated or
classified as hazardous or toxic under federal, state or local laws or regulations; and
(q) Any material, waste or substance that is:
(i) a petroleum or refined petroleum product;
(ii) asbestos;
(iii) polychlorinated biphenyl;
(iv) designated as a hazardous substance pursuant to 33 U.S.C. §1321
or listed pursuant to 33 U.S.C. §1317;
(v) a flammable explosive; or
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(vi) a radioactive material.
"Improvements" means the new improvements to be constructed by Developer upon the
Site and all approvals and permits required for completion of the Improvements, all more
particularly described herein and in the Scope of Development.
"Landscape and Grading Plans" means the plans and drawings to be submitted and
approved by CDC, as set forth in Section 302.2 hereof.
"Low Income Household" means persons and families whose income does not exceed
sixty percent (60%) of the then current Area Median Income, provided that such persons or
families meet the additional requirements set forth in Section 4 of the Agreement Affecting Real
Property.
"Maximum Purchase Price" shall mean the maximum amount of consideration, of any
kind whatsoever, that the Developer may receive for any Affordable Unit, which amount shall
not exceed the lesser of: (i) the sum of (A) the purchase price which would result in a Monthly
Housing Cost, as determined by the CDC, which does not exceed the product of one twelfth
(1/12) of thirty percent (30%) times sixty percent (60%) of the then Area Median Income as
adjusted for household size appropriate for the unit, plus (B) the amount of the Developer Note
assumed by the Low Income Household that purchases such Affordable Unit; or (ii) the Single
Family Mortgage Limit for the County of San Diego under Section 203(b) of the National
Housing Act (12 U.S.C. § 1709(b)) or any other limitation then provided by Code of Federal
Regulations §92.254(a) or any successor law or regulation.
"Monthly Housing Cost" shall mean all of the following associated with the Affordable
Unit, estimated or known as of the date of the close of escrow of the sale of the Affordable Unit:
(i) principal and interest payments on the 20-30 year, fixed-rate mortgage loan actually obtained
by the purchaser, and any loan insurance fees associated therewith; (ii) property taxes,
assessments, including Mello Roos fees, if applicable; (iii) fire and casualty insurance covering
replacement value of property improvements (to the extent not covered by the homeowner
association encompassing the Site); (iv) any homeowner association fees; (v) private mortgage
insurance, if applicable; and (vi) reasonable costs of utilities. Monthly Housing Cost shall be an
average of estimated costs for the next twelve (12) month period as of the date of the close of
escrow of the sale of the Affordable Unit.
"Notice" shall mean a notice in the form prescribed by Section 601 hereof.
"Notice of Affordability Restrictions" shall mean the Notice of Affordability Restrictions
on Transfer of Property to be recorded against the Site upon Closing, substantially in the form
attached to this Agreement as Attachment No. 13.
"Outside Date" shall mean the last date the Closing shall occur, as set forth in Section
204.4 hereof.
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"Proforma" means the proforma which is attached hereto as Attachment No. 9 and
incorporated herein.
"PTR" means the preliminary title report, as described in Section 205 hereof.
"Purchase Price" means the price to be paid by Developer to CDC in consideration for the
conveyance of fee title to the Site, as provided in Section 201 hereof.
"Redevelopment Plan" means the Redevelopment Plan for the National City
Redevelopment Project, adopted by Community Development Commission of the City of
National City on July 18, 1995, and incorporated herein by reference.
"Redevelopment Project" means the National City Redevelopment Project, adopted by
CDC pursuant to the Redevelopment Plan.
"Release of Construction Covenants" means the document which evidences Developer's
satisfactory completion of Improvements, as set forth in Section 312 hereof, in the form of
Attachment No. 4 hereto which is incorporated herein.
"Resale Restriction" means the Resale Restriction that will be recorded as an
encumbrance against each Affordable Unit, in the form attached hereto as Attachment "10".
"Schedule of Performance" means the Schedule of Performance attached hereto as
Attachment No. 5 and incorporated herein, setting out the dates and/or time periods by which
certain obligations set forth in this Agreement must be accomplished. The Schedule of
Performance is subject to revision from time to time as mutually agreed upon in writing between
Developer and CDC's Executive Director, and CDC's Executive Director is authorized to make
such revisions as he or she deems reasonably necessary.
"Scope of Development" means the Scope of Development attached hereto as Attachment
No. 6 and incorporated herein, which describes the scope, amount and quality of development
Improvements to be constructed by Developer pursuant to the terms and conditions of this
Agreement.
"Site" means the approximately 8,625 square foot parcel located in the National City
Redevelopment Project (the "Project") at 1441 Harding Avenue in the City of National City,
County of San Diego, California, which is more particularly described on the Site Legal
Description.
"Site Legal Description" means the legal description of the Site, as described on
Attachment 8.
"Site Plan" means the map of the Site, which shows the location of all dwelling units and
roads to be constructed on the Site, and which is attached hereto as Attachment No. 7 and
incorporated herein.
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"Title Company" means Stewart Title Company.
200. Conveyance of the Site.
201. Purchase Price. Subject to all of the terms and conditions of this Agreement,
CDC shall sell the Site to Developer, and Developer shall purchase the Site from CDC for One
and No/100 Dollar ($1.00) ("Purchase Price").
202. CDC Loan.
202.1 Developer Promissory Note. Concurrently herewith, the CDC is making a
loan to Developer as set forth in more detail in the Developer Note.
202.2 Forgiveness of the Developer Note. Upon the timely completion of the
Affordable Units in accordance with this Agreement, the Developer Note will be partially
forgiven and the remaining balance will convert to first-time homebuyer loans to Low -Income
Households to assist those Low -Income Households with the purchase of Affordable Units, as
follows:
(a) Upon the closing of the sale of each Affordable Unit, the purchaser
of such Affordable Units shall execute a First -Time Homebuyer Note in an amount equal to the
sum of: (i) the Single Family Mortgage Limit for the County of San Diego under Section 203(b)
of the National Housing Act (12 U.S.C. §1709(b)) or any other limitation then provided by Code
of Federal Regulations §92.254(a) or any successor law or regulation; less (ii) the Maximum
Purchase Price. In the event the foregoing calculation results in an amount equal to zero or a
negative number, then the requirement that the purchaser of the Affordable Unit execute a First -
Time I Iomebuyer Note as set forth herein, shall be null and void.
(b) Any amount of the Developer Note that is not assumed by the
purchasers of the Affordable Units as set forth in Section 202.2(a), above, shall be forgiven in its
entirety.
(c) In addition each purchaser of an Affordable Units shall execute a
Resale Restriction, a deed of trust securing the Resale Restriction and the First -Time Homebuyer
Note, and any other instruments as the CDC may require in its reasonable discretion.
(d) The CDC shall partially reconvey the Developer Deed of Trust,
with respect to each Affordable Unit, upon the last to occur of: (i) the sale of the Affordable Unit;
(ii) the Low -Income Household's execution of the First -Time Homebuyer Note; (iii) the
recordation against the individual Affordable Unit of the Resale Restriction; and (iv) the
recordation against the individual Affordable Unit of the deed of trust securing the First -Time
Homebuyer Note and the Resale Restriction.
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203. Default. Notwithstanding Section 202.2(b), above, or anything contained herein
to the contrary, in the event of any default in the performance of any of the terms, covenants and
conditions contained in: (i) this Agreement, the Developer Note, the Developer Deed of Trust,
including without limitation the failure by Developer to complete all of the Improvements on or
before September 30, 2010, (ii) any other instrument executed by the Developer in conjunction
with this Agreement; (iii) any prior or junior note secured by an encumbrance on the Site or any
portion of it; or (iv) in the event of the filing of a Bankruptcy proceeding by or against
Developer, then (a) at the option of the CDC the Site shall revert back to the CDC; (b) all sums
owing by Developer to the CDC shall at the option of CDC immediately become due and
payable; (c) CDC shall have no obligation to disburse any further funds to Developer or any other
person: and (d) CDC shall be released from any and all obligations to Developer under the terms
of this Agreement. These remedies shall be in addition to any and all other rights and remedies
available to CDC, either at law or in equity. Further, default interest shall accrue on the principal
balance of the Developer Note from the date of the Developer Note at the rate of ten percent
(10%) simple interest per annum or the maximum rate than allowed by law, whichever is less.
204. Escrow. The parties shall open escrow ("Escrow") with Title Company, or
another escrow company mutually satisfactory to both parties (the "Escrow Agent").
204.1 Costs of Escrow. Developer shall pay the premiums for the Title Policy,
for the documentary transfer taxes, if any, due with respect to the conveyance of the Site, and all
other fees, charges, and costs which arise from Escrow.
204.2 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer and CDC, and the Escrow Agent to whom these instructions are
delivered is hereby empowered to act under this Agreement. The parties hereto agree to do all
acts reasonably necessary to close this Escrow in the shortest possible time. Insurance policies
for fire or casualty are not to be transferred, and CDC will cancel its own policies after the
Closing, if any. All funds received in the Escrow shall be deposited with other escrow funds in a
general escrow account(s) and may be transferred to any other such escrow trust account in any
State or National Bank doing business in the State of California. All disbursements shall be
made by check from such account. If in the opinion of either party it is necessary or convenient
in order to accomplish the Closing of this transaction, such party may require that the parties sign
supplemental escrow instructions. The parties agree to execute such other and further documents
as may be reasonably necessary, helpful or appropriate to effectuate the provisions of this
Agreement. The Closing shall take place when both CDC's Conditions Precedent and
Developer's Conditions Precedent have been satisfied. Escrow Agent is instructed to release
CDC's escrow closing statement and Developer's escrow closing statement to the respective
parties.
204.3 Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
(a) Pay, and charge Developer, for the amount equal to the premium for the
Developer Title Policy and any amount necessary to place title in the condition necessary to
satisfy Section 205 of this Agreement.
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(b) Pay, and charge Developer and CDC, for their respective shares of any
escrow fees, charges, and costs payable under Section 204.1 of this Agreement.
(c) Pay, and charge Developer, for any endorsements to the Developer Title
Policy which are requested by Developer.
(d) Disburse funds, and deliver and record the Grant Deed, Agreement
Affecting Real Property, Environmental Indemnity, Notice of Affordability Restrictions and the
Developer Deed of Trust, when both Developer's Conditions Precedent and CDC's Conditions
Precedent have been fulfilled or waived by Developer and CDC.
(e) Do such other actions as necessary, including obtaining the CDC Title
Policy and/or the Developer Title Policy, to fulfill its obligations under this Agreement.
(f) Within the discretion of Escrow Agent, direct CDC and Developer to
execute and deliver any instrument, affidavit, and statement, and to perform any act reasonably
necessary to comply with the provisions of FIRPTA and any similar state act and regulation
promulgated thereunder. CDC agrees to execute a Certificate of Non -Foreign Status by
individual transferor and/or a Certification of Compliance with Real Estate Reporting
Requirement of the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to
be supplied by Escrow Agent.
(g) Prepare and file with all appropriate governmental or taxing authorities a
uniform settlement statement, closing statement, tax withholding forms including an IRS 1099-S
form, and be responsible for withholding taxes, if any such forms are provided for or required by
law.
(h) Pay, and charge Developer, for the amount equal to the premium for the
CDC Title Policy.
(i) Pay, and charge Developer, for any endorsements to the CDC Title Policy
which are requested by CDC.
204.4 Closing. This transaction shall close ("Closing") within thirty (30) days of
the parties' satisfaction of all of CDC's and Developer's Conditions Precedent to Closing as set
forth in Section 207 hereof, but in no event later than May 1, 2009 (the "Outside Date"). The
Closing shall occur at a location within San Diego County at a time and place reasonably agreed
on by the parties. The "Closing" shall mean the time and day the Grant Deed is filed for record
with the San Diego County Recorder. The "Closing Date" shall mean the day on which the
Closing occurs.
204.5 Termination. If Escrow is not in condition to close by the Outside Date,
then either party which has fully performed under this Agreement may, in writing, demand the
return of money or property and terminate this Agreement. If either party makes a written
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demand for return of documents or properties, this Agreement shall not terminate until five (5)
days after Escrow Agent shall have delivered copies of such demand to all other parties at the
respective addresses shown in this Agreement. If any objections are raised within said five (5)
day period, Escrow Agent is authorized to hold all papers and documents until instructed by a
court of competent jurisdiction or by mutual written instructions of the parties. Termination of
this Agreement shall be without prejudice as to whatever legal rights either party may have
against the other arising from this Agreement. If no demands are made, the Escrow Agent shall
proceed with the Closing as soon as possible.
204.6 Closing Procedure. Escrow Agent shall close Escrow for the Site as
follows:
(a) Record the Grant Deed with instructions for the Recorder of San Diego
County, California to deliver the Grant Deed to Developer;
(b) Record the Developer Deed of Trust, Notice of Affordability Restrictions
and Agreement Affecting Real Property with instructions for the Recorder of San Diego County,
California to deliver the same to the CDC;
(c) Instruct the Title Company to deliver the Developer Title Policy to
Developer;
(d) File any informational reports required by Internal Revenue Code Section
6045(e), as amended, and any other applicable requirements;
(e)
Deliver the FIRPTA Certificate, if any, to Developer;
(f) Forward to both Developer and CDC a separate accounting of all funds
received and disbursed for each party and copies of all executed and recorded or filed documents
deposited into Escrow, with such recording and filing date and information endorsed thereon;
and
(g)
Instruct the Title Company to deliver the CDC Title Policy to CDC.
205. Review of Title. Developer has received from Title Company a standard
preliminary title report (the "PTR") with respect to the title to the Site, together with legible
copies of the documents underlying the exceptions ("Exceptions"). Developer shall have the
right to reasonably approve or disapprove the Exceptions; provided, however, that Developer
herein approves the following Exceptions:
(a) The National City Redevelopment Project
(b) Utility easements of record
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Developer shall have ten (10) days from the date of this Agreement to give written notice
to CDC and Escrow Holder of Developer's approval or disapproval of any of such Exceptions.
Developer's failure to give written disapproval of the PTR within such time limit shall be
deemed approval of the PTR by Developer. If Developer notifies CDC of its disapproval of any
Exceptions in the PTR, CDC shall have the right, but not the obligation, to remove any
disapproved Exceptions within sixty (60) business days after receiving written notice of
Developer's disapproval or provide assurances satisfactory to Developer that such Exception(s)
will be removed on or before the Closing. If CDC cannot or does not elect to remove any of the
disapproved Exceptions within that period, Developer shall have ten (10) business days after the
expiration of such sixty (60) business day period to either give CDC written notice that
Developer elects to proceed with the purchase of the Site subject to all of the Exceptions or to
give CDC written notice that Developer elects to terminate this Agreement. The Exceptions to
title approved by Developer as provided herein shall hereinafter be referred to as the "Conditions
of Title." Developer shall have the right to approve or disapprove any additional Exceptions
reported by the Title Company after Developer has approved the Conditions of Title for the Site
(which are not created by Developer), in the same manner as stated above in this paragraph.
CDC shall not voluntarily create any new exceptions to title following the Date of Agreement.
206. Title Insurance.
206.1 Developer Title Policy. Concurrently with recordation of the Grant Deed
conveying title to the Site, there shall be issued to Developer a CLTA owner's policy of title
insurance (the "Developer Title Policy"), together with such endorsements as are reasonably
requested by Developer, issued by the Title Company, insuring that the title to the Site is vested
in Developer in the condition required by Section 205 of this Agreement. The Title Company
shall provide the CDC with a copy of the Developer Title Policy. The Developer Title Policy
shall be for the amount of the Purchase Price. Developer shall pay for the Developer Title
Policy.
206.2 CDC Title Policy. Concurrently with recordation of the Developer Deed
of Trust against the Site, there shall be issued to CDC a CLTA lender's policy of title insurance
(the "CDC Title Policy"), together with such endorsements as are reasonably requested by the
CDC, issued by the Title Company, insuring that the Developer Deed of Trust is a valid
encumbrance against the Site. The Title Company shall provide Developer with a copy of the
CDC Title Policy. The CDC Title Policy shall be for the amount of the Developer Note.
Developer shall pay for the CDC Title Policy.
207. Conditions of Closing. The Closing is conditioned upon the satisfaction of the
following terms and conditions within the times designated below:
207.1 CDC's Conditions of Closing. CDC's obligation to proceed with the
Closing of the sale of the Site is subject to the fulfillment by Developer or waiver by CDC of
each and all of the conditions precedent (a) through (h), inclusive, described below ("CDC's
Conditions Precedent"), which are solely for the benefit of CDC, and which shall be fulfilled or
waived by the time periods provided for herein:
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(a) No Default. Prior to the Closing, Developer is not in default in any of its
obligations under the terms of this Agreement and all representations and warranties of
Developer contained herein shall be true and correct in all material respects.
(b) Execution of Documents. Developer shall have executed any documents
required hereunder and delivered such documents into Escrow, including without
limitation the Developer Note, Environmental Indemnity, Agreement Affecting Real
Property, Notice of Affordability Restrictions and the Developer Deed of Trust.
(c) Payment of Closing Costs. Prior to the Closing, Developer has paid all
required costs of Closing into Escrow in accordance with Section 204.1 hereof.
(d) Design Approvals. Developer shall have obtained approval by CDC of the
Concept Drawings, Landscape and Grading Plans and Construction Drawings as set forth
in Section 302 hereof.
(e) Insurance. Developer shall have provided proof of insurance as required
by Section 307 hereof.
(f) Other Financing. Developer shall have obtained commitments which meet
the requirements of Section 313.1 of this Agreement, from all financing sources to be
used for financing the construction of the Improvements which are sufficient to complete
construction of the Improvements.
(g) CDC Title Policy. The Title Company shall, upon payment by Developer
of Title Company's premium, have agreed to issue the CDC Title Policy to the CDC upon
the Closing, in accordance with Section 206.2 hereof.
(h) Final Map. Developer shall have obtained approval by the City of a final
subdivision map allowing for the construction of at least three (3) for -sale, single family
homes.
In the event that one or more of the above conditions are not satisfied on or before the
Closing Date then (i) the CDC can waive satisfaction of such condition or conditions in writing
(delivered to Developer and Escrow Holder) on or prior to the Closing Date, and the Closing
shall proceed, or (ii) the CDC can immediately terminate this Agreement in writing (delivered to
Developer and Escrow Holder), and pursue all of its rights and remedies against the Developer as
set forth herein, or as otherwise available at law or in equity.
207.2 Developer's Conditions of Closing. Developer's obligation to proceed
with the purchase of the Site is subject to the fulfillment by CDC or waiver by Developer of each
and all of the conditions precedent (a) through (d) inclusive, described below ('`Developer's
Conditions Precedent"), which are solely for the benefit of Developer, and which shall be
fulfilled or waived by the time periods provided for herein:
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(a) No Default. Prior to the Closing, CDC is not in default in any of its
obligations under the terms of this Agreement and all representations and warranties of
CDC contained herein shall be true and correct in all material respects.
(b) Execution of Documents. CDC shall have executed the Grant Deed and
any other documents required hereunder, and delivered such documents into Escrow.
(c) Review and Approval of Title. Developer shall have reviewed and
approved the Conditions of Title of the Site, as provided in Section 205 hereof.
(d) Developer Title Policy. The Title Company shall, upon payment of Title
Company's regularly scheduled premium, have agreed to issue the Developer Title Policy
for the Site upon the Closing, in accordance with Section 206.1 hereof.
In the event that one or more of the above conditions are not satisfied on or before the
Closing Date then (i) the Developer can waive satisfaction of such condition or conditions in
writing (delivered to the CDC and Escrow Holder) on or prior to the Closing Date, and the
Closing shall proceed, or (ii) the Developer, provided the Developer is not then in default
hereunder, can immediately terminate this Agreement in writing, and neither CDC nor Developer
shall have any further obligations to one another under this Agreement.
208. Representations and Warranties.
208.1 CDC Representations and Warranties. CDC represents and warrants to
Developer as follows:
(a) Authority. CDC is a public body, corporate and politic, existing pursuant
to the California Community Redevelopment Law (California Health and Safety Code Section
33000), which has been authorized to transact business pursuant to action of the City. CDC has
full right, power and lawful authority to grant, sell and convey the Site as provided herein and the
execution, performance and delivery of this Agreement by CDC has been fully authorized by all
requisite actions on the part of CDC.
(b) FIRPTA. CDC is not a "foreign person" as defined by FIRPTA or any
similar state statute, or is exempt from the provisions of FIRPTA and any similar state statute, or
that CDC has complied and will comply with all the requirements under FIRPTA and any similar
state statute.
Until the Closing, CDC shall, upon learning of any fact or condition which would cause
any of the warranties and representations in this Section 208.1 not to be true as of Closing,
immediately give written notice of such fact or condition to Developer. Such representation(s)
shall not be deemed a breach by CDC hereunder, but shall constitute an exception which
Developer shall have a right to approve or disapprove. If Developer elects to close Escrow
following disclosure of such information, CDC's representations and warranties contained herein
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shall be deemed to have been made as of the closing, subject to such exception(s). If, following
the disclosure of such information, Developer elects not to close Escrow, then this Agreement
and the Escrow shall automatically terminate, in which event neither CDC nor Developer shall
have any further obligations to one another under this Agreement. The representations and
warranties set forth in this Section 208.1 shall survive the Closing.
208.2 Developer's Representations and Warranties. Developer represents and
warrants to CDC as follows:
(a) Authority. Developer is a California nonprofit, public benefit corporation.
The persons executing this Agreement on behalf of the Developer have all necessary
corporate authority to execute this Agreement on behalf of the Developer and this
Agreement is a binding obligation of Developer. Copies of the Articles of Incorporation
and bylaws of Developer will be delivered to CDC within sixty (60) days of final
approval of the Agreement or prior to execution of the Grant Deed, whichever occurs
first. These copies will be true, complete and fully -executed copies of the originals, as
amended to the date of this Agreement. Developer will have full right, power and lawful
authority to purchase and accept the conveyance of the Site and to undertake all
obligations as provided herein and the execution, performance and delivery of this
Agreement by Developer has been fully authorized by resolution of and all requisite
actions on the part of Developer.
(b) No Conflict. Developer's execution, delivery and performance of its
obligations under this Agreement will not constitute a default or a breach under any
contract, agreement or order to which Developer is a party or by which it is bound.
(c) No Developer Bankruptcy. Developer is not the subject of a bankruptcy
proceeding.
(d) Proforma. The proforma attached hereto as Attachment No. 10
("Proforma"), is a true and correct copy of the Proforma. The amounts shown on the
Proforma are accurate and are the amounts for which Developer is able to and shall
design and construct all of the Improvements in a workmanlike and defect -free manner in
accordance with the Scope of Development.
Until the Closing, Developer shall, upon learning of any fact or condition which would
cause any of the warranties and representations in this Section 208.2 not to be true as of Closing,
immediately give written notice of such fact or condition to CDC. Such representation(s) shall
not be deemed a breach by Developer hereunder, but shall constitute an exception which CDC
shall have a right to approve or disapprove. If CDC elects to close Escrow following disclosure
of such information, Developer's representations and warranties contained herein shall be
deemed to have been made as of the Closing, subject to such exception(s). If, following the
disclosure of such information, CDC elects to not close Escrow, then this Agreement and the
Escrow shall automatically terminate, in which event the CDC may pursue all of its rights and
remedies against the Developer as set forth herein, or as otherwise available at law or in equity.
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The representations and warranties set forth in this Section 208.2 shall survive the Closing and
any termination or cancellation of this Agreement.
209. Studies and Reports. Prior to the Closing, representatives of Developer shall have
the right of access to all portions of the Site for the purpose of obtaining data and making surveys
and tests necessary to carry out this Agreement. Any preliminary work undertaken on the Site by
Developer prior to the Closing shall be done at the sole risk and expense of Developer. Any
preliminary work shall he undertaken only after securing all necessary permits from the
appropriate governmental agencies.
210. Condition of the Site.
210.1 Disclosure. The CDC has not investigated and makes no representations
or warrantieswhatsoever regarding the condition of the Site. Developer hereby agrees to take
title to the Site "as is". Developer further agrees to perform any and all investigation that it
deems necessary with respect to the Site, including without limitation any and all soils testing
"Phase 1" and/or "Phase 2" environmental investigations of the Site and hereby waives any and
all claims Developer may have against CDC with respect to the condition of the Site.
210.2 No Further Warranties As To Site. Except as otherwise provided in this
Agreement, the physical condition, possession or title of the Site is and shall be delivered from
CDC to Developer in an "as -is" condition, with no warranty expressed or implied by CDC,
including without limitation, the presence of Hazardous Materials on, in, under or adjacent to the
Site or the condition of the soil, its geology, the presence of known or unknown seismic faults, or
the suitability of the Site for the development purposes intended hereunder.
210.3 Developer Precautions After Closing. Upon the Closing, Developer shall
take all necessary precautions to prevent the release in, on or under the Site of any Hazardous
Materials. Such precautions shall include compliance with all Governmental Requirements with
respect to Hazardous Materials. In addition, Developer shall install and utilize such equipment
and implement and adhere to such procedures as are consistent with commercially reasonable
standards as respects the disclosure, storage, use, removal and disposal of Hazardous Materials.
Developer's obligation to take such precautions with respect to the release of I-Iazardous
Materials shall terminate with respect to each Unit, upon the sale of such Unit, and shall cease
with respect to the entire Site following the sale of all of the Units, provided Developer is then
not in possession of any portion of the Site.
210.4 Required Disclosures After Closing. After the Closing, Developer shall
notify CDC, and provide to CDC a copy or copies, of all environmental permits, disclosures,
applications, entitlements or inquiries relating to the Site, including notices of violation, notices
to comply, citations, inquiries, clean-up or abatement orders, cease and desist orders, reports filed
pursuant to self -reporting requirements and reports filed or applications made pursuant to any
Governmental Requirement relating to Hazardous Materials and underground tanks. Developer
shall report to CDC, as soon as possible after each incident, any unusual or potentially important
incidents with respect to the environmental condition of the Site. Developer's obligation to
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report such incidents shall terminate with respect to each Unit, upon the sale of such Unit, and
shall cease with respect to the entire Site following sale of all of the Units, provided Developer is
then not in possession of any portion of the Site. In the event of a release of any Hazardous
Materials into the environment, Developer shall, as soon as possible after the release, furnish to
CDC a copy of any and all reports relating thereto and copies of all correspondence with
governmental agencies relating to the release. Upon request, Developer shall furnish to CDC a
copy or copies of any and all other environmental entitlements or inquiries relating to or affecting
the Site including, but not limited to, all permit applications, permits and reports including,
without limitation, those reports and other matters which may be characterized as confidential.
210.5 Developer Indemnity. Upon the Closing, Developer agrees to indemnify,
defend and hold CDC harmless from and against any claim, action, suit, proceeding, loss, cost,
damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without
limitation, attorneys' fees), resulting from, arising out of, or based upon any of the following: (i)
the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials
on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Site,
or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit,
judgment or license relating to the use, generation, release, discharge, storage, disposal or
transportation of I-Iazardous Materials on, under, in or about, to or from, the Site. This indemnity
shall include, without limitation, any damage, liability, fine, penalty, parallel indemnity after
closing cost or expense arising from or out of any claim, action, suit or proceeding for personal
injury (including sickness, disease or death), tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic loss, damage to the
natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse
effect on the environment. This indemnity does not include any condition arising solely as a
result of the negligence or willful misconduct of the CDC or its employees, agents,
representatives, successors or assigns.
300. Development of the Site.
301. Scope of Development. Developer shall develop the Improvements as provided in
Attachment No. 6 and in accordance with the plans, drawings and documents submitted by
Developer and approved by CDC as set forth herein.
302. Design Review.
302.1 Concept Drawings. Developer shall prepare and submit conceptual
drawings for the Improvements, including a site plan, floor plans, exterior elevations, materials,
color board, and elevations of all four sides of Improvements (collectively, the "Concept
Drawings"). The Concept Drawings shall be prepared and submitted within the times established
in the Schedule of Performance.
302.2 Landscape and Grading Plans. The Developer shall prepare and submit to
the Agency preliminary and final landscaping and preliminary and finish grading plans for the
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Site (collectively, the "Landscape and Grading Plans"). The Landscape and Grading Plans shall
be prepared and submitted within the times established in the Schedule of Performance.
302.3 Construction Drawings. The Developer shall prepare and submit to the
Agency 50% and final construction drawings and related documents (collectively called the
"Construction Drawings") to the Agency for review (including but not limited to architectural
review). The Construction Drawings shall be prepared and submitted within the times
established in the Schedule of Performance. Final construction drawings are hereby defined as
those in sufficient detail to obtain a building permit.
303. CDC Review and Approval. CDC shall have the right to review and approve or
disapprove all aspects of the Concept Drawings, Landscape and Grading Plans and Construction
Drawings. Developer acknowledges and agrees that CDC is entitled to approve or disapprove
the Concept Drawings, Landscape and Grading Plans or Construction Drawings in order to
satisfy CDC's obligation to promote the sound development and redevelopment of land within
the Project, to promote a high level of design which will impact the surrounding development,
and to provide an environment for the social, economic and psychological growth and well-being
of the citizens of the City and the Project. Developer shall not be entitled to any monetary
damages or compensation as a result of CDC's disapproval or failure to approve or disapprove
the Concept Drawings, Landscape and Grading Plans or Construction Drawings.
303.1 Standards for Disapproval. CDC shall have the right to disapprove in its
reasonable discretion any of the Concept Drawings, Landscape and Grading Plans or
Construction Drawings, as set forth in Section 303, above, including without limitation if the
same do not conform to the Scope of Development or this Agreement, or are incomplete. In the
event the Concept Drawings, Landscape or Grading Plans and Construction Drawings are not
approved, the CDC shall state in writing provided to the Developer the reasons for disapproval.
Developer, upon receipt of notice of disapproval from CDC, shall revise such portions and
resubmit to CDC by the time established therefor in the Schedule of Performance. CDC and
Developer agree to work together in good faith to resolve any disagreements and disputes
regarding the Concept Drawings, Landscape and Grading Plans and Construction Drawings.
303.2 Revisions. If Developer desires to propose any revisions to CDC -
approved Concept Drawings, Landscape and Grading Plans or Construction Drawings after
approval, it shall submit such proposed changes to CDC, and shall also proceed in accordance
with any and all State and local laws and regulations regarding such revisions, within the time
frame set forth in the Schedule of Performance. At the reasonable discretion of CDC, if
Developer proposes any change from the basic use of the Site for anything other than a
residential development consisting of three (3) for -sale, single family homes, as provided for in
this Agreement, then this Agreement is subject to renegotiation of all terms and conditions,
including without limitation, the economic terms of the Agreement. If the Concept Drawings,
Landscape and Grading Plans or Construction Drawings, as modified by the proposed change,
generally and substantially conform to the requirements of the Scope of Development and this
Agreement, the CDC shall review the proposed change and notify Developer in writing within
thirty (30) days after submission to CDC as to whether the proposed change is approved or
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disapproved. CDC's Executive Director is authorized to approve changes to CDC -approved
Concept Drawings, Landscape and Grading Plans and Construction Drawings.
303.3 Defects in Plans. CDC shall not be responsible or liable in any way, either
to Developer or to any third parties, for any defects in the Concept Drawings, Landscape and
Grading Plans or Construction Drawings, or for any structural or other defects in any work done
according to the approved Concept Drawings, Landscape and Grading Plans or Construction
Drawings, or for any delays reasonably caused by the review and approval processes established
by this Section 303. Developer shall hold harmless and indemnify CDC, the City and their
officers, employees, agents and representatives from and against any and all claims, demands and
suits for damages to property or injuries to persons arising out of or in any way relating to the
Site, including without limitation any defects in the Concept Drawings, Landscape and Grading
Plans or Construction Drawings, violation of any laws, and for defects in any work done
according to the approved Concept Drawings, Landscape and Grading Plans or Construction
Drawings or for defects in work performed by Developer or any contractor or subcontractor of
Developer.
304. Land Use Approvals. Before commencement of construction of the
Improvements or other works of improvement upon the Site, Developer shall, at Developer's sole
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 such construction or work, except for those which are the responsibility of
CDC as set forth herein. Neither CDC, nor the City shall be responsible in any way for, the
processing of Developer's building permits or other permit applications with the City and the
execution of this Agreement does not constitute the granting of or a commitment to obtain any
required land use permits, entitlements or approvals.
305. Schedule of Performance. Developer shall submit all Concept Drawings,
commence and complete all construction of Improvements, and satisfy all other obligations and
conditions of this Agreement within the times established therefor in the Schedule of
Performance (Attachment No. 5).
306. Cost of Construction. All costs whatsoever, except for costs of Escrow, as
provided above, shall be borne by Developer, including without limitation the cost of planning,
designing, developing and constructing of all of the Improvements, as well as site preparation
and grading.
307. Insurance Requirements. Developer shall take out and maintain and shall cause
its contractor and subcontractors to take out and maintain until the issuance of the Release of
Construction Covenants pursuant to Section 312 of this Agreement, a comprehensive general
liability policy in the amount of not less than $2,000,000 combined single limit policy, and a
comprehensive automobile liability policy in the amount of $1,000,000 combined single limit, or
such other policy limits as CDC may approve at its discretion, including contractual liability, as
shall protect Developer, City and CDC from claims for such damages. Such policy or policies
shall be written on an occurrence form. Developer shall also furnish or cause to be furnished to
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CDC evidence satisfactory to CDC that Developer, and any contractor with whom it has
contracted for the performance of work on the Site or otherwise pursuant to this Agreement,
carries workers' compensation insurance as required by law. Developer shall furnish a notarized
certificate of insurance countersigned by an authorized agent of the insurance carrier on a form
approved by CDC setting forth the general provisions of the insurance coverage. This
countersigned certificate shall name the City and CDC and their respective officers, agents, and
employees as additionally insured parties under the policy, and the certificate shall be
accompanied by a duly executed endorsement evidencing such additional insured status. The
certificate and endorsement by the insurance carrier shall contain a statement of obligation on the
part of the carrier to notify City and CDC of any material change, cancellation or termination of
the coverage at least thirty (30) days in advance of the effective date of any such material change,
cancellation or termination. Coverage provided hereunder by Developer shall be primary
insurance and not be contributing with any insurance maintained by CDC or City, and the policy
shall contain such an endorsement. The insurance policy or the endorsement shall contain a
waiver of subrogation for the benefit of the City and CDC. The required certificate shall be
furnished by Developer at the time set forth therefor in the Schedule of Performance.
308. Developer's Indemnity. Developer shall be responsible for all injuries to persons
and/or all damages to real or personal property of CDC or others, caused by or resulting from the
negligence and/or breach of this Agreement, of itself, its employees, subcontractors and/or its
agents during the construction of or arising out of the construction of the Project and/or the
breach of this Agreement. Developer shall defend and hold harmless and indemnify CDC, the
City, and all of their officers and employees from all costs, damages, judgments, expenses and
claims to any third party resulting from the negligence and/or breach of this Agreement, by
Developer, its employees, subcontractors and/or its agents, arising out of the construction of the
Project and/or the breach of this Agreement, except those arising from the sole negligence or
willful misconduct of CDC or the City.
309. Rights of Access. Prior to the issuance of a Release of Construction Covenants
pursuant to Section 312 of this Agreement, for purposes of monitoring compliance with this
Agreement and to perform the CDC's monitoring duties under the provisions of 24 CFR Part 92,
CDC and its representatives shall have the right of reasonable access to the Site, without charges
or fees, at normal construction hours during the period of construction, including but not limited
to, the inspection of the work being performed in constructing the Improvements.
310. Compliance With Laws. Developer represents and warrants that during the term
of this Agreement that it will comply with each and every provision and requirement contained
within CFR 92.354, as amended from time to time, to the extent applicable, and will pay not less
than the wages prevailing in the locality, as predetermined by the Secretary of Labor pursuant to
the Davis -Bacon Act (40 U.S.C. 276a-276a-5), to all laborers and mechanics employed in the
development of any part of the Project in accordance with the terms and provisions of CFR
92.354 and will comply with the overtime provisions, as applicable, of the Contract Work Hours
and Safety Standards Act (40 U.S.C. 327-332). Prevailing wages need not be paid to
"Volunteers" or for "Sweat Equity" as defined in 24 CFR 92.354(b) and (c). Developer shall
carry out the design and construction of the Improvements in conformity with all applicable laws,
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including all applicable state labor standards, the City zoning and development standards,
building, plumbing, mechanical and electrical codes, and all other provisions of the Title 24 of
the California Code of Regulations, and all applicable disabled and handicapped access
requirements, including without limitation 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., and the Unruh Civil Rights Act, Civil Code Section 51, et seq. Developer hereby
agrees to carry out development, construction (as defined by applicable law) and operation of the
Improvements on the Site, including, without limitation, any and all public works (as defined by
applicable law), in conformity with all applicable local, state and federal laws, including, without
limitation, all applicable federal and state labor laws (including, without limitation, any
requirement to pay state prevailing wages). Developer hereby expressly acknowledges and
agrees that neither City nor Agency has ever previously affirmatively represented to the
Developer or its contractor(s) for the Improvements in writing or otherwise, in a call for bids or
otherwise, that the work to be covered by the bid or contract is not a "public work," as defined in
Section 1720 of the Labor Code. Developer hereby agrees that Developer shall have the
obligation to provide any and all disclosures, representations, statements, rebidding, and/or
identifications which may be required by Labor Code Sections 1726 and 1781, as the same may
be enacted, adopted or amended from time to time, or any other provision of law. Developer
hereby agrees that Developer shall have the obligation to provide and maintain any and all bonds
to secure the payment of contractors (including the payment of wages to workers performing any
public work) which may be required by the Civil Code, Labor Code Section 1781, as the same
may be enacted, adopted or amended from time to time, or any other provision of law. The
Developer hereby agrees that the Developer shall have the obligation, at the Developer's sole
cost, risk and expense, to obligate any party as may be required by Labor Code Sections 1726 and
1781, as the same may be enacted, adopted or amended from time to time, or any other provision
of law. Developer shall indemnify, protect, defend and hold harmless the Agency, City and their
respective officers, employees, contractors and agents, with counsel reasonably acceptable to
Agency and City, from and against any and all Ioss, liability, damage, claim, cost, expense,
and/or "increased costs" (including labor costs, penalties, reasonable attorneys fees, court and
litigation costs, and fees of expert witnesses) which, in connection with the development,
construction (as defined by applicable law) and/or operation of the Improvements, including,
without limitation, any and all public works (as defined by applicable law), results or arises in
any way from any of the following: (i) the noncompliance by Developer of any applicable local,
state and/or federal law, including, without limitation, any applicable federal and/or state labor
laws (including, without limitation, if applicable, the requirement to pay state prevailing wages);
(ii) the implementation of Sections 1726 and 1781 of the Labor Code, as the same may be
enacted, adopted or amended from time to time, or any other similar law; (iii) failure by
Developer to provide any required disclosure, representation, statement, rebidding and/or
identification which may be required by Labor Code Sections 1726 and 1781, as the same may be
enacted, adopted or amended from time to time, or any other provision of law; (iv) failure by
Developer to provide and maintain any and all bonds to secure the payment of contractors
(including the payment of wages to workers performing any public work) which may be required
by the Civil Code, Labor Code Section 1781, as the same may be enacted, adopted or amended
from time to time, or any other provision of law; and/or (v) failure by the Developer to obligate
any party as may be required by Labor Code Sections 1726 and 1781, as the same may be
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enacted, adopted or amended from time to time, or any other provision of law. It is agreed by the
parties that, in connection with the development, construction (as defined by applicable law) and
operation of the Improvements, including, without limitation, any public work (as defined by
applicable law), Developer shall bear all risks of payment or non-payment of state prevailing
wages and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be
enacted, adopted or amended from time to time, and/or any other provision of law. "Increased
costs" as used in this Section shall have the meaning ascribed to it in Labor Code Section 1781,
as the same may be enacted, adopted or amended from time to time. The foregoing indemnity
shall survive termination of this Agreement and shall continue after recordation of the Release of
Construction Covenants.
310.1 Nondiscrimination in Employment. Developer certifies and agrees that all
persons employed or applying for employment by it, its affiliates, subsidiaries, or holding
companies, and all subcontractors, bidders and vendors, are and will be treated equally by it
without regard to, or because of race, color, religion, ancestry, national origin, sex, age,
pregnancy, childbirth or related medical condition, medical condition (cancer related) or physical
or mental disability, and in compliance with Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000, et seq., the Federal Equal Pay Act of 1963, 29 U.S.C. Section 206(d), the Age
Discrimination in Employment Act of 1967, 29 U.S.C. Section 621, et seq., the Immigration
Reform and Control Act of 1986, 8 U.S.C. Section 1324b, et seq., 42 U.S.C. Section 1981, the
California Fair Employment and Housing Act, Cal. Government Code Section 12900, et seq., the
California Equal Pay Law, Cal. Labor Code Section 1197.5, Cal. Government Code Section
1 1 135, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., and all other anti-
discrimination laws and regulations of the United States and the State of California as they now
exist or may hereafter be amended. Developer shall allow representatives of CDC access to its
employment records related to this Agreement during regular business hours to verify
compliance with these provisions when so requested by CDC.
310.2 Taxes and Assessments. After the Closing, Developer shall pay prior to
delinquency all ad valorem real estate taxes and assessments on the Site. Developer shall remove
or have removed any levy or attachment made after the Closing on any of the Site or any part
thereof, or assure the satisfaction thereof within a reasonable time. Developer shall not apply for
or receive any exemption from the payment of property taxes or assessments on any interest in or
to the Site or the Improvements. If the Terms and conditions of this Agreement are deemed to
create a possessory interest in Developer such as to subject Developer to a Possessory Interest
Tax pursuant to Revenue and Tax Code Section 107.6, then Developer shall be solely responsible
for satisfying that obligation, and Developer shall not look to CI)C or the City for reimbursement
or set off.
310.3 Liens and Stop 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, Developer shall, within thirty (30) days of such recording or service
or within five (5) days of CDC's demand, whichever last occurs:
(a) pay and discharge the same;
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(b) effect the release thereof by recording and delivering to CDC a surety
bond in sufficient form and amount as approved by CDC in its sole discretion; or
(c) provide CDC with other assurance which CDC 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 CDC from the effect of such lien or bonded stop
notice.
311. Completion of the Project. All of the Improvements shall be completed in
accordance with the schedule attached hereto as Attachment 5. Failure to complete all of the
Improvements in accordance with the schedule attached hereto as Attachment 5, shall be a
default under the Developer Note entitling the CDC to exercise all of its rights and remedies,
including without limitation foreclosure of the Developer Deed of Trust.
312. Release of Construction Covenants. Promptly after completion of the
Improvements in conformity with this Agreement, CDC shall furnish Developer with a "Release
of Construction Covenants," substantially in the form of Attachment No. 4 hereto, for the entire
Site upon written request therefor by the Developer. The Agency shall not unreasonably
withhold any such Release of Construction Covenants. The Release of Construction Covenants
shall be a conclusive determination of satisfactory completion of the applicable portion of the
Improvements and the Release of Construction Covenants shall so state. Any party then owning
or thereafter purchasing, leasing or otherwise acquiring any interest in the Site shall not (because
of such ownership, purchase, lease or acquisition) incur any obligation or liability under this
Agreement except for those continuing covenants as set forth in Sections 401 through 406 of this
Agreement. If CDC refuses or fails to furnish the Release of Construction Covenants, after
written request from Developer, CDC shall, within thirty (30) days of written request therefor,
provide Developer with a written statement of the reasons CDC refused or failed to furnish the
Release of Construction Covenants or partial reconveyance. The statement shall also delineate
the actions Developer must take to obtain the Release of Construction Covenants or partial
reconveyancc. The Release of Construction Covenants shall not constitute evidence of
compliance with or satisfaction of any obligation of Developer to any holder of any mortgage, or
any insurer of a mortgage securing money loaned to finance the Improvements, or any part
thereof. The Release of Construction Covenants is not a notice of completion as referred to in
Section 3093 of the California Civil Code.
313. Financing of the Improvements.
313.1 No Encumbrances Except Mortgages or Deeds of Trust. Mortgages and
deeds of trust may be permitted prior to the issuance of a Release of Construction Covenants
pursuant to Section 312 of this Agreement, only with CDC's prior written approval, and only for
the purpose of securing loans of funds to be used for financing the acquisition of the Site,
construction of the Improvements (including architecture, engineering, legal, and related direct
costs as well as indirect costs) on or in connection with the Site, and any other purposes
necessary and appropriate in connection with development under this Agreement. Developer
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shall notify CDC in advance of any mortgage or deed of trust, if Developer proposes to enter into
the same before completion of the construction of the Improvements. Developer shall not enter
into any such mortgage or deed of trust for financing without the prior written approval of CDC,
which approval CDC agrees to give if any such mortgage or deed of trust for financing is given
to a responsible financing lending institution or person or entity, as determined by CDC in its
reasonable discretion. If CDC shall disapprove any such evidence of financing, CDC shall do so
by Notice to Developer stating the reasons for such disapproval and Developer may elect either
to obtain and submit to CDC new evidence of financing or to terminate this Agreement. CDC
agrees that the Developer Deed of Trust shall be subordinated to any Construction Deed of Trust,
such subordination shall be in a form acceptable to the CDC in its reasonable discretion.
313.2 Right of CDC to Cure Mortgage or Deed of Trust Default. In the event of
a mortgage or deed of trust default or breach by Developer prior to the issuance of a Release of
Construction Covenants pursuant to Section 312 of this Agreement, Developer shall immediately
deliver to CDC a copy of any mortgage holder's notice of default. CDC shall have the right but
not the obligation to cure the default. In such event, CDC shall be entitled to reimbursement
from Developer of all costs and expenses incurred by CDC in curing such default, including
without limitation attorneys' fees.
314. Administrative Requirements. Developer shall strictly comply with the
administrative requirements contained within 24 CFR Section 92.505, including, but not limited
to, the requirements of OMB Circular No. A-87 and the requirements of 24 CFR Part 85, Section
85.6, 85.12, 85.20, 85.22, 85.26, 85.35, 85.36, 85.44, 85.51, and 85.52. Further, Developer
covenants to comply with the OMB Circular No. A-122 and the applicable provisions of OMB
Circular No. A-110. Copies of said OMB Circulars are on file in the offices of CDC and are
available for inspection and copying by Developer. Developer further agrees that should the
administrative requirements contained in Section 92.505 be amended and/or changed from time
to time by HUD, that Developer will comply with the terms and conditions of such changed
and/or amended administrative requirements. Developer hereby advises the CDC that
Developer's IRS-990 forms and audits are completed on the basis of Developer's fiscal year,
which is July 1 — June 30.
314.1 Records and Reports. Developer shall supply CDC, annually, on October
1st, of each year during the term of this Agreement, for the Developer's fiscal year ending the
immediately previous June 30, with such records and reports as are required and are requested by
CDC to aid it in complying with the reports and record keeping provisions, terms and conditions
of 24 CFR 92.508 and 92.509, as amended from time to time, and any and all other requirements
of this Agreement. The records and reports include, but are not limited to the following:
(a) Amount of funds expended pursuant to this Agreement;
(b) On -site inspection results;
(c) Intentionally omitted;
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Developer;
the Site;
(4)
(d)
(e)
(0
(g)
Affirmative marketing records;
Insurance policies and notices;
Equal Employment Opportunity and Fair Housing records;
Labor costs and records;
An audited income and expense statement and balance sheets for
(h) An audited income and expense statement and balance sheets for
(i) Federal and State income tax returns for the calendar year, ending
on the preceding December 31 st;
(j) A report or reports, certifying compliance with the terms and
provisions of the Section 3 requirements, as set forth in Section 314.8 of this Agreement and
certifying compliance with the provisions of federal law as it relates to Section 3, whether or not
specifically set forth in Section 314.8; and
(j) Such other and further information and records as CDC shall
reasonably request and/or HUD shall request in writing from Developer.
314.2 Federal and State Requirements. Developer represents, warrants and
agrees that Developer will fully comply, during the term of this Agreement, with any and all
HOME program requirements including, but not limited to the requirements of 24 CFR Part 92,
24 CFR Section 92.351 (Affirmative Marketing), 92.352 (Environmental Review), 92.353
(Displacement, Relocation and Acquisition Residential, Antidisplacement and Relocation Plan),
92.354 (Labor), 92.356 (Conflict of Interest), and 92.358 (Flood Insurance). Developer further
warrants, represents and agrees that should said HOME program requirements be changed by
HUD, from time to time, that Developer will comply with said changed and amended
regulations.
314.3 Lead Based Paint. Developer represents and warrants that during the term
of this Agreement that it will comply with each and every provision and requirement contained
within CFR 92.355, as amended from time to time, to the extent applicable.
314.4 Certification Concerning_ Debarment and Suspension. Developer
represents, warrants and hereby certifies, pursuant to 24 CFR 92.357, that it will not use a
contractor that has been debarred and or suspended, nor that is proposed for debarment, declared
ineligible or voluntarily excluded from participation in construction of the Improvements.
Developer agrees to execute such further certifications required by CDC and/or HUD including,
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if necessary, that certification included as Appendix B of CFR Part 24, to verify the certification
made in this Section 314.4.
314.5 Flood Insurance. Developer represents, warrants, and certifies, pursuant to
24 CFR 92.358, that no portion of the Site, is located within a Flood Plain or Flood Hazard Zone
or Area, as indicated on a FEMA Map; or that the Site is located within a community
participating in the National Flood Insurance Program and Developer agrees to purchase and
maintain flood insurance for the duration of the term of this Agreement.
314.6 Fire Protection and Safety. Developer represents and warrants that it will
comply with all requirements and regulations of the Fire Administration Act of 1992 and the
Federal Fire and Prevention Control Act. Developer will use and install all fire and safety related
equipment pursuant to the National Fire Protection Association standards.
314.7 Accessibility Standards. Developer represents and warrants that it will
comply with all federal, state and local requirements and regulations concerning access to the
units by the disabled and handicapped persons, including, but not limited to, those requirements
of the HOME Program.
314.8 Section 3 Requirements. Developer shall comply with the following
requirements during the term of the Agreement:
(a) The work to be performed under this Agreement is subject to the
requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12
U.S.C. § 1701 u (section 3). The purpose of section 3 is to ensure that employment and other
economic opportunities generated by 1-IUD assistance or MUD -assisted projects covered by
section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons,
particularly persons who are recipients of HUD assistance for housing.
(b) The parties to this Agreement agree to comply with HUD's
regulations in 24 CFR part 135, which implement section 3. As evidenced by their execution of
this Agreement, the parties to this Agreement certify that they are under no contractual or other
impediment that would prevent them from complying with the part 135 regulations.
(c) Developer agrees to send to each labor organization or
representative of workers with which Developer has a collective bargaining agreement or other
understanding, if any, a notice advising the labor organization or workers' representative of
Developer's commitments under this section 3 clause, and will post copies of the notice in
conspicuous places at the work site where both employees and applicants for training and
employment positions can see the notice. The notice shall describe the section 3 preference, shall
set forth minimum number and job titles subject to hire, availability of apprenticeship and
training positions, and qualifications for each; and the name and location of the persons taking
applications for each of the positions; and the anticipated date the work shall begin.
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(d) Developer agrees to include this section 3 clause in every
subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take
appropriate action, as provided in an applicable provision of the subcontract or in this section 3
clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135.
Developer will not subcontract with any subcontractor where Developer has notice or knowledge
that the subcontractor has been found in violation of the regulations in 24 CFR part 135.
(e) Developer will certify that any vacant employment positions,
including training positions, that are filled (1) after Developer is selected but before the contract
is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135
require employment opportunities to be directed, were not filled to circumvent Developer's
obligations under 24 CFR part 135.
(f) Noncompliance with HUD's regulations in 24 CFR part 135 may
result in sanctions, termination of this Agreement for default, and debarment or suspension from
future HUD assisted contracts.
314.9 Drug Free Workplace. Developer shall comply with all applicable State
and Federal rules, laws and regulations to ensure a drug free workplace at all times during the
term of this Agreement. Further, Developer shall incorporate such federal provisions as are
required in each contract or subcontract that it enters into in connection with the Site.
314.10 Lobbying Prohibition. Developer hereby certifies to CDC, under penalty
of perjury, under the terms of applicable federal law, that at all applicable times before, during
and after the term of this Agreement, that:
(a) No Federal appropriated funds have been paid or will be paid, by
or on behalf of it, to any person for influencing or attempting to influence an officer or employee
of Congress, or an employee of a Member of Congress in connection with the awarding of any
Federal contract, the making of any Federal grant, the making of any Federal loan, the entering
into of any cooperative agreement, and the extension, continuation, renewal, amendment, or
modification of any Federal contract, grant, loan or cooperative agreement;
(b) If any funds other than Federal appropriated funds have been paid
to any person for influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with this Federal contract, grant, loan or cooperative agreement, it will
complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance
with its instructions;
(c) Developer will require that the above stated language be included
in the award documents for all subawards at all tiers, including subcontracts, subgrants, loans,
contracts, and cooperative agreements concerning the subject matter of this Agreement; and
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(d) Further, Developer and all subrecipients, at all times, shall certify
compliance with the provisions of 31 U.S.C. §1352 and any and all terms and conditions of the
Byrd Anti -Lobbying Amendment, as amended from time to time.
400. Covenants and Restrictions.
401. Use in Accordance with Redevelopment Plan. Developer covenants and agrees
for itself, its successors, assigns, and every successor in interest to the Site or any part thereof;
that upon the Closing and during construction and thereafter, Developer shall devote the Site to
the uses specified in the Redevelopment Plan, Agreement Affecting Real Property and this
Agreement for the periods of time specified herein. All uses conducted on the Site, including,
without limitation, all activities undertaken by Developer pursuant to this Agreement, shall
conform to the Redevelopment Plan and all applicable provisions of the City of National City
Municipal Code. The foregoing covenants shall run with the land. Developer's obligations
under this Section 401, shall terminate with respect to each Affordable Unit, upon the sale of
such Affordable Unit, and shall cease with respect to the entire Site following the sale of all of
the Affordable Units, provided Developer is then not in possession of any portion of the Site.
402. Affordable Units.
402.1 Developer Covenants Concerning Affordable Units. Developer covenants
and agrees that it will construct the three (3) Affordable Units. Developer further covenants and
agrees that it will sell the Affordable Units only to Low Income Households for a total
consideration that does not exceed the Maximum Purchase Price.
402.2 Timing. Completion of construction of the Affordable Units shall occur
on or before September 30, 2010.
402.3 Execution and Recordation of the Resale Restriction. The closing of the
sale of each Affordable Unit shall not occur, unless at least fifteen (15) days prior to closing
escrow for the sale of such Affordable Unit Developer shall cause the buyer of such Affordable
Unit to execute, acknowledge and deliver to CDC the: (a) First Time Homebuyer Note, (b) the
Resale Restriction, (c) the deed of trust securing the First Time Homebuyer Note and the Resale
Restriction, and (d) any other documents required by the CDC in its sole discretion. Developer
shall then cause the Resale Restriction to be recorded in first lien priority position and cause the
deed of trust securing the First Time Homebuyer Note and the Resale Restriction to be recorded
thereafter. Notwithstanding the foregoing, the Resale Restriction and such deed of trust may be
recorded in second lien priority position subordinate to the deed of trust securing financing
provided by Developer to the purchaser. Under no circumstances shall Developer sell an
Affordable Unit, unless the Resale Restriction and the deed of trust securing the First Time
Homebuyer Note and the Resale Restriction have been recorded as an encumbrance against such
Affordable Unit.
402.4 45-Year Affordability. The Resale Restriction shall ensure that the
Affordable Unit will be sold and resold to Low Income Households for a period of forty-five (45)
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years, measured from the date of the initial sale of the Affordable Unit to a Low Income
Household as provided in the Resale Restriction.
402.5 No Sales to Related Parties. None of the Affordable Units shall be sold to:
(i) any person that is an employee, officer, director, investor, shareholder, partner, member,
manager or other principal of Developer, or any divisions, subsidiaries or affiliates of Developer
or (ii) any person that is the spouse, mother, father, sister, brother, child, aunt, uncle, niece,
nephew, stepchild, mother in-law, father in-law, brother in-law, sister in-law, ex -spouse,
grandchild or grandparent of any employee, officer, director, investor, shareholder, partner,
member, manager or other principal of Developer, or any parent companies, divisions,
subsidiaries or affiliates of Developer.
402.6 CDC Consent to Sales. Developer shall not sell any Affordable Unit,
unless and until, the CDC has consented in writing to all of the terms and conditions of such sale,
including without 'limitation, the sales price of the Affordable Unit which amount shall not
exceed the Maximum Purchase Price.
403. Maintenance Covenants. Throughout the sales period, Developer shall maintain
the Site and all improvements of any unsold Affordable Units thereon, including all landscaping,
in compliance with the terms of the Redevelopment Plan and with all applicable provisions of the
City of National City Municipal Code.
404. Obligation to Refrain from Discrimination.
404.1 State and Federal Requirements. Developer shall, at all times during the
term of this Agreement, comply with all of the provisions of Section 24 CFR 92.351 and the
affirmative marketing procedures adopted by CDC, including, but not limited to, all requirements
and procedures referenced in said Section 24 CFR 92.351(b), amended from time to time.
Developer shall maintain records to verify compliance with the applicable affirmative marketing
procedures and compliance. Such records are subject to inspection by CDC during regular
business hours upon five (5) days written notice. 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, sexual orientation, marital status,
national origin, ancestry, familial status, source of income or disability in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall Developer or any
person claiming under or through it establish or permit any such practice or practices of
discrimination or segregation of any person or group of persons on account of any basis listed in
subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in
Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955,
and Section 12955.2 of the Government Code, with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site or the rental,
lease sale of the Site and any dwelling unit thereon. The foregoing covenants shall run with the
Site.
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404.2 Additional Requirements. Developer hereby agrees to comply with the
Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices
Act, and any other applicable Federal and State laws and regulations. CDC will provide
technical assistance and copies of the referenced programs upon request pursuant to 24 CFR
Section 92.350.
404.3 Fair Mousing Laws. All activities carried out by Developer and/or agents
of Developer shall he in accordance with the requirements of the Federal Fair Housing Act. The
Fair Housing Amendments Act of 1988 became effective on March 12, 1989. The Fair Housing
Amendments Act of 1988 and Title VIII of the Civil Rights Act of 1968, taken together,
constitute the Fair Housing Act. The Fair Housing Act provides protection against the following
discriminatory housing practices if they are based on race, sex, religion, color, handicap, familial
status, or national origin: denying or refusing to rent housing, denying or refusing to sell housing,
treating differently applicants for housing, treating residents differently in connection with terms
and conditions, advertising a discriminatory housing preference or limitation, providing false
information about the availability of housing, harassing, coercing or intimidating people from
enjoying or exercising their rights under the Fair Housing Act, blockbusting for profit,
persuading owner to sell or rent housing by telling them that people of a particular race, religion,
etc. are moving into the neighborhood, imposing different terms for loans for purchasing,
constructing, improving, repairing, or maintaining a home, or loans secured by housing; denying
use or participation in real estate services, e.g., brokers' organizations, multiple listing services,
etc. The Fair Housing Act gives HUD the authority to hold administrative hearings unless one of
the parties elects to have the case heard in U.S. District Court and to issue subpoenas. Both civil
and criminal penalties are provided. The Fair Mousing Act also provides protection for people
with disabilities and proscribes those conditions under which senior citizen housing is exempt
from the prohibitions based on familial status. The following State of California Laws also
govern housing discrimination and shall be complied with by Developer: Fair Employment and
Housing Act, Unruh Civil Rights Act of 1959, Ralph Civil Rights Act of 1976, and Civil Code
Section 54.1.
405. Nondiscrimination Covenants. Developer shall refrain from restricting the rental,
lease and sale of the Site and any dwelling unit thereon on the basis of race, color, creed, religion,
sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income
or disability of any person. All such deeds, leases or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
(a) Deeds. In deeds "The grantee herein covenants by and for itself, its successors
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, religion, sex,
sexual orientation, disability, medical condition, familial status, source of income, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee 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 tenants, lessees,
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subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall
run with the land."
(b) Leases. In leases "The lessee herein covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, and this lease is made and accepted
upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person or group
of persons, on account of race, color, religion, sex, sexual orientation, disability,
medical condition, familial status, source of income, marital status, national origin
or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure
or enjoyment of the land herein leased, nor shall lessee itself, or any person
claiming under or through it, establish or permit such practice or practices of
discrimination or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land
herein leased."
(c) Contracts. In contracts "There shall be no discrimination against or segregation of
any person or group of persons on account of race, color, religion, sex, sexual orientation,
disability, medical condition, familial status, source of income, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor
shall the transferee 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 tenants, lessees, subtenants, sublessees or vendees of the land."
406. Effect of Violation of the Terms and Provisions of this Agreement After
Completion of Construction. CDC 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 CDC has been, remains or is an owner of any land or
interest therein in the Site or in the Project. CDC shall have the right, if this Agreement or its
covenants 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 covenants may be entitled.
500. Defaults and Remedies.
501. Default Generally. Subject to the extensions of time set forth in Section 602 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 complained of.
Except as otherwise expressly provided in this Agreement, the claimant shall not institute any
proceeding against any other party, and the other party shall not be in Default if such party within
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thirty (30) days from receipt of such notice immediately, with due diligence, commences to cure,
correct or remedy such failure or delay and shall complete such cure, correction or remedy with
diligence.
502. Institution of Legal Actions. In addition to any other rights or remedies and
subject to the restrictions otherwise set forth in this Agreement, either 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. Such legal actions must be instituted in the
County of San Diego, State of California, in an appropriate court in that county, or in the District
of the United States District Court in which such county is located.
503. Termination by Developer. In the event that Developer is not in default under this
Agreement and one or more of Developer's Conditions Precedent to the Closing is not fulfilled
on or before the time set forth in the Schedule of Performance and such failure is not caused by
Developer; or in the event any Default of CDC prior to the Closing is not cured within the time
set forth in Section 501 hereof, or any such failure is not cured within the applicable time period
after written demand by Developer, then this Agreement may, at the option of Developer be
terminated by written notice thereof to CDC. From the date of the written notice of termination
of this Agreement by Developer to CDC and thereafter this Agreement shall be terminated and
there shall be no further rights or obligations between the parties, except that the parties may
pursue any other remedies they may have hereunder.
504. Termination by CDC. In the event that CDC is not in Default under this
Agreement and prior to the issuance of the Release of Construction Covenants Developer (or any
successor in interest) assigns or attempts to assign this Agreement or any rights therein or in the
Site in violation of this Agreement; or one or more of CDC's Conditions Precedent to the
Closing is not fulfilled on or before the time set forth in the Schedule of Performance and such
failure is not caused by CDC; or Developer is otherwise in Default of this Agreement and fails to
cure such Default within the time set forth in Section 501 hereof, then this Agreement and any
rights of Developer or any assignee or transferee with respect to or arising out of the Agreement
or the Site, shall, at the option of CDC, be terminated by CDC by written notice thereof to
Developer in addition to all other rights and remedies available to developer. From the date of
the written notice of termination of this Agreement by CDC to Developer and thereafter this
Agreement shall be terminated and there shall be no further rights or obligations between the
parties, except that the parties may pursue any other remedies they may have hereunder.
505. Reentry and Revesting of Title in CDC After the Closing and Prior to Completion
of Construction.
505.1 Right of Reentry. In additional to all other rights and remedies the CDC
may have at law or in equity, the CDC has the right, at its election, to reenter and take possession
of the Site, with all improvements thereon, and terminate and revest the Site in the CDC if after
the Closing and prior to the issuance of the Release of Construction Covenants, Developer (or its
successors in interest):
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(a) fails to start the construction of the Improvements as required by this
Agreement for a period of thirty (30) days after written notice thereof from CDC; or
(h) abandons or substantially suspends construction of the Improvements
required by this Agreement for a period of thirty (30) days after written notice thereof
from CDC; or
(c) transfers or suffers any involuntary transfer of the Site or any part thereof
in violation of contrary to the provisions of Section 603 or any other section of this
Agreement.
505.2 Limitations on Right of Reentry. Such right to reenter, terminate and
revest shall be subject to and be limited by and shall not defeat, render invalid or limit:
(a) Any mortgage or deed of trust permitted by this Agreement; or
(b) Any rights or interests provided in this Agreement for the protection of the
holders of such mortgages or deeds of trust.
505.3 Right of Reentry Referenced in Grant Deed. The Grant Deed shall contain
appropriate reference and provision to give effect to CDC's rights as set forth in this Section 505,
to reenter and take possession of the Site, with all improvements thereon, and to terminate and
revest in CDC the estate conveyed to Developer.
505.4 Resale By CDC After Revesting. Upon the revesting in CDC of title to
the Site as provided in this Section 505, CDC shall, pursuant to its responsibilities under state
law, use its reasonable efforts to resell the Site as soon and in such manner as CDC shall find
feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it
exists or may be amended, to a qualified and responsible party or parties (as determined by CDC)
who will assume the obligation of making or completing the Improvements, or such
improvements in their stead as shall be satisfactory to CDC and in accordance with the uses
specified for the Site or part thereof in the Redevelopment Plan.
505.5 Application of Resale Proceeds. Upon such resale of the Site by CDC,
the net proceeds thereof after repayment of any mortgage or deed of trust encumbering the Site
which is permitted by this Agreement, shall be applied:
(a) First, to reimburse CDC, on its own behalf or on behalf of the City, all
costs and expenses incurred by CDC or the City, including, but not limited to: any
expenditures by CDC or the City in connection with the recapture, management and
resale of the Site or part thereof (but less any income derived by CDC or the City from
the Site or part thereof in connection with such management); all taxes, assessments and
water or sewer charges with respect to the Site or part thereof which Developer has not
paid (or, in the event that Site is exempt from taxation or assessment of such charges
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during the period of ownership thereof by CDC, an amount, if paid, equal to such taxes,
assessments, or charges as would have been payable if the Site were not so exempt); any
payments made or necessary to be made to discharge any encumbrances or liens existing
on the Site or part thereof at the time of revesting of title thereto in CDC, or to discharge
or prevent from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults or acts of Developer, its successors or transferees; any expenditures
made or obligations incurred with respect to the making or completion of the
improvements or any part thereof on the Site, or part thereof; and any amounts otherwise
owing CDC, and in the event thereafter available; and
(b) Second, to reimburse Developer, its successor or transferee, up to the
amount equal to the sum of (i) the costs incurred for the acquisition and development of
the Site and for the improvements existing on the Site at the time of the reentry and
possession, less (ii) any gains or income withdrawn or made by Developer from the Site
or the improvements thereon.
Notwithstanding the foregoing or anything to the contrary contained herein, to the extent
the reimbursement of the net proceeds set forth above is not allowed under any HUD
regulation(s), the parties agree that the parties shall be reimbursed in a manner that conforms
with the HUD regulations. Any balance remaining after such reimbursements shall be retained
by CDC as its property. The rights established in this Section 505 are not intended to be
exclusive of any other right, power or remedy, but each and every such right, power, and remedy
shall be cumulative and concurrent and shall be in addition to any other right, power and remedy
authorized herein or now or hereafter existing at law or in equity. The rights are to be interpreted
in light of the fact that CDC will have conveyed the Site to Developer for redevelopment
purposes, particularly for development of the Project and not for speculation.
506. Acceptance of Service of Process. In the event that any legal action is
commenced by Developer against CDC, service of process on CDC shall be made by personal
service upon the Executive Director of CDC or in such other manner as may be provided by law.
In the event that any legal action is commenced by CDC against Developer, service of process on
Developer shall be made by personal service upon Developer or in such other manner as may be
provided by law.
507. 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 either party
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party.
508. 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 shall govern the interpretation and enforcement of this Agreement.
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600. General Provisions.
601. Notices, Demands and Communications Between the Parties. Any approval,
disapproval, demand, document or other notice ("Notice") which either party may desire to give
to the other party under this Agreement must be in writing and may be given by any
commercially acceptable means to the party to whom the Notice is directed at the address of the
party as set forth below, or at any other address as that party may later designate by Notice.
To CDC:
To Developer:
Community Development Commission of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
Attention: Executive Director
San Diego Habitat for Humanity, Inc.
10222 San Diego Mission Road
San Diego, CA 92108
Attention: Executive Director
Any written notice, demand or communication shall be deemed received immediately if
delivered by hand and shall be deemed received on the third day from the date it is postmarked if
delivered by registered or certified mail.
602. Enforced Delay; Extension of Times of Performance. In addition to specific
provisions of this Agreement, performance by either party hereunder shall not be deemed to he in
Default, and all performance and other dates specified in this Agreement shall be extended,
where delays or Defaults are due to: war; insurrection; strikes; lockouts; riots; floods;
earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine
restrictions; freight embargoes; lack of transportation; governmental restrictions or priority;
litigation; unusually severe weather; acts or omissions of the other party; or any other causes
beyond the control and without the fault of the party claiming an extension of time to perform.
Notwithstanding anything to the contrary in this Agreement, an extension of time for any such
cause shall be for the period of the 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 five (5) days of the commencement of the cause. Times of performance under this
Agreement may also be extended in writing by the mutual agreement of Executive Director of the
CDC and Developer.
603. Transfers of Interest in Site or Agreement.
603.1 Prohibition. The qualifications and identity of Developer are of particular
concern to CDC. It is because of those qualifications and identity that CDC has entered into this
Agreement with Developer. For the period commencing upon the date of this Agreement and
until all Units are sold, no voluntary or involuntary successor in interest of Developer shall
acquire any rights or powers under this Agreement, nor shall Developer make any total or partial
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sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part
of the Site or the Improvements thereon without prior written approval of CDC, except as
expressly set forth herein. Any proposed total or partial sale, transfer, conveyance, assignment,
subdivision, refinancing or lease of the whole or any part of the Site or the Improvements, other
than those permitted in Section 603.2, will entitle CDC to its right of reentry and revesting as set
forth in Section 505 hereof.
For the reasons cited above, Developer represents and agrees for itself, each member and
any successor in interest of itself and each member that prior to issuance by City of a Certificate
of Completion and without the prior written approval of CDC, there shall be no significant
change in the ownership of Developer or in the relative proportions thereof, or with respect to the
identity of the parties in control of Developer or the degree thereof, by any method or means.
Developer shall promptly notify CDC of any and all changes whatsoever in the identity of
the parties in control of Developer or the degree thereof, of which it or any of its officers have
been notified or otherwise have knowledge or information. This Agreement may be terminated
by CDC if there is any significant change (voluntary or involuntary) in membership, management
or control, of Developer or its associates (other than such changes occasioned by the death or
incapacity of any individual prior to issuance of a Certificate of Completion).
603.2 Permitted Transfers. Notwithstanding any other provision of this
Agreement to the contrary, CDC approval of an assignment of this Agreement or conveyance of
the Site or Improvements, or any part thereof, will be granted in connection with any of the
following, subject to CDC and Developer executing appropriate documents of transfer which
contain any exceptions or reservation of rights permitted under this Agreement:
(a) Any transfers to an entity or entities in which Developer retains a
minimum fifty-one percent (51 %) of the ownership and 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 Improvements (as defined herein).
(c) Any requested assignment for financing purposes (subject to such
financing being approved by CDC), including the grant of a deed of trust to secure the
funds necessary for construction of the Improvements.
(d) Any sale of the Affordable Units as provided herein.
In the event of any assignment by Developer under subparagraphs (a) through (c),
inclusive, above, not requiring CDC's prior approval, Developer nevertheless agrees that at least
thirty (30) days prior to such assignment it shall give written notice to CDC of such assignment
and satisfactory evidence that the assignee has assumed jointly with Developer the obligations of
this Agreement.
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603.3 Successors and Assigns. All of the terms, covenants and conditions of this
Agreement shall be binding upon Developer and its permitted successors and assigns. Whenever
the term "Developer" is used in this Agreement, such term shall include any other permitted
successors and assigns as herein provided.
603.4 Assignment by CDC. CDC may assign or transfer this Agreement in its
entirety, or any of its rights or obligations hereunder.
604. Non -Liability of Officials and Employees of CDC. No member, official or
employee of CDC or the City of National City shall be personally liable to Developer, or any
successor in interest, in the event of any Default or breach of this Agreement or for any amount
which may become due to Developer or its successors, or on any obligations under the terms of
this Agreement.
605. Relationship Between CDC and Developer. It is hereby acknowledged that the
relationship between CDC and Developer is that of independent contractors and not that of a
partnership or joint venture and that CDC and Developer shall not be deemed or construed for
any purpose to be the agent of the other. Accordingly, except as expressly provided herein or in
the Attachments hereto, CDC shall have no rights, powers, duties or obligations with respect to
the operation, maintenance or management of the Improvements. Developer agrees to
indemnify, hold harmless and defend CDC from any claim made against CDC arising from a
claimed relationship of partnership or joint venture between CDC and Developer with respect to
the period of development through the sale of the units on the Site or the Improvements.
606. CDC Approvals and Actions. Whenever a reference is made herein to an action
or approval to be undertaken by CDC, the Executive Director of CDC or his or her designee is
authorized to act on behalf of CDC unless specifically provided otherwise or the context should
require otherwise.
607. Counterparts. This Agreement may be signed in multiple counterparts which,
when signed by all parties, shall constitute a binding agreement.
608. Integration. This Agreement contains the entire understanding between the parties
relating to the subject matter of this Agreement. All prior or contemporaneous agreements,
understandings, representations and statements, oral and written, are merged in this Agreement
and shall be of no further force or effect. Each party is entering this Agreement based solely
upon the representations set forth herein and upon each party's own independent investigation of
any and all facts such party deems material. All exhibits and attachments referred to in this
Agreement are hereby incorporated in this Agreement by this reference, regardless of whether or
not the exhibits are actually attached to this Agreement. The Recitals to this Agreement are
hereby incorporated in this Agreement by this reference.
609. No Real Estate Brokerage Commissions. CDC and Developer each represent and
warrant to the other that no broker or finder is entitled to any commission or finder's fee in
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connection with Developer's acquisition of the Site from CDC. The parties agree to defend and
hold harmless the other party from any claim to any such commission or fee from any broker,
agent or finder with respect to this Agreement which is payable by such party. With respect to
the sale of individual units, however, Developer may employ brokers at its discretion.
610. Attorneys' Fees. The parties agree that the prevailing party in litigation for the
breach and/or interpretation and/or enforcement of the terms of this Agreement shall be entitled
to their expert witness fees, if any, as part of their costs of suit, and reasonable attorneys' fees as
may be awarded by the court, pursuant to California Code of Civil Procedure ("CCP") Section
1033.5 and any other applicable provisions of California law, including, without limitation, the
provisions of CCP Section 998.
611. Titles and Captions. Titles and captions are for convenience of reference only and
do not define, describe or limit the scope or the intent of this Agreement or of any of its terms.
References to section numbers are to sections in this Agreement, unless expressly stated
otherwise.
612. Interpretation. As used in this Agreement, masculine, feminine or neuter gender
and the singular or plural number shall be deemed to include the others where and when the
context so dictates. The word "including" shall be construed as if followed by the words
"without limitation." This Agreement shall be interpreted as though prepared jointly by both
parties.
613. No Waiver. A waiver by either party of a breach of any of the covenants,
conditions or agreements under this Agreement to he performed by the other party shall not be
construed as a waiver of any succeeding breach of the same or other covenants, agreements,
restrictions or conditions of this Agreement.
614. Modifications. Any alteration, change or modification of or to this Agreement, in
order to become effective, shall be made in writing and in each instance signed on behalf of each
party.
615. Severability. If any term, provision, condition or covenant of this Agreement or
its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is held
invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest
extent permitted by law.
616. Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day escrow opens), and including
the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also
excluded. The term "holiday" shall mean all holidays as specified in Section 6700 and 6701 of
the California Government Code. If any act is to he done by a particular time during a day, that
time shall be Pacific Time Zone time.
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617. Legal Advice. Each party represents and warrants to the other the following: they
have carefully read this Agreement, and in signing this Agreement, they do so with full
knowledge of any right which they may have; they have received independent legal advice from
their respective legal counsel as to the matters set forth in this Agreement, or have knowingly
chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have
freely signed this Agreement without any reliance upon any agreement, promise, statement or
representation by or on behalf of the other party, or their respective agents, employees, or
attorneys, except as specifically set forth in this Agreement, and without duress or coercion,
whether economic or otherwise.
618. Time of Essence. Time is expressly made of the essence with respect to the
performance by CDC and Developer of each and every obligation and condition of this
Agreement.
619. Cooperation. Each party agrees to cooperate with the other in this transaction and,
in that regard, to sign any and all documents which may be reasonably necessary, helpful, or
appropriate to carry out the purposes and intent of this Agreement including, but not limited to,
releases or additional agreements.
620. Conflicts of Interest. No member, official or employee of CDC shall have any
personal interest, direct or indirect, in this Agreement, nor shall any such member, official or
employee participate in any decision relating to the Agreement which affects his personal
interests or the interests of any corporation, partnership or association in which he is directly or
indirectly interested.
621. Exhibit, Attachments and Recitals Incorporated. All exhibits and attachments
referred to in this Agreement are hereby incorporated in this Agreement by this reference,
regardless of whether or not the exhibits are actually attached to this Agreement. The recitals to
this Agreement are hereby incorporated in this Agreement by this reference.
622. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
623. Authority to Sign. All individuals signing this Agreement for a party which is a
corporation, limited liability company, partnership or other legal entity, or signing under a power
of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the
CDC that they have the necessary capacity and authority to act for, sign and bind the respective
entity or principal on whose behalf they are signing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
CDC:
Community Development Commission of the City of National City
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
CDC:
Community Development Commission
of the City of National City,
a Redevelopment Agency
By:
Ron Morrison, Chairman
APPROVED AS TO FORM:
alt
Special .e1 to CDC
DEVELOPER:
San Diego Habitat for Humanity, Inc.,
a California nonprofit corporation
By:
Richard Mays, Board Pres . ent
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CONSENT OF ESCROW AGENT
The undersigned Escrow Agent hereby agree to (i) accept the foregoing Agreement, (ii)
be Escrow Agent under said Agreement and (iii) be bound by said Agreement in the performance
of its duties as Escrow Agent; provided, however, the undersigned shall have no obligation or
liability or responsibility under (a) this Consent or otherwise unless and until said Agreement is
fully signed by the parties and has been delivered to the undersigned or (b) any amendment to
said Agreement unless and until the same shall be accepted by the undersigned in writing.
Dated: , 2009
Title Company
By:
Print Name:
Its:
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Attachment No. 1
Developer Note
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DO NOT DESTROY THIS NOTE: WHEN PAID, THIS NOTE AND THE DEED OF TRUST
SECURING IT MUST BE SURRENDERED TO TRUSTEE FOR CANCELLATION
BEFORE RECONVEYANCE WILL BE MADE.
NOTE SECURED BY DEED OF TRUST
("Developer Note")
(1441 Harding Avenue)
National City, California , 2009
1. Principal; No Interest Except Upon Default. For value received and in consideration of the
Development and Disposition Agreement dated , 2009 ("DDA"), by and between the
Community Development Commission of the City of National City ("CDC") and San Diego Habitat
for Humanity, Inc., a California nonprofit corporation ("Maker"), Maker promises to pay to CDC, or
order, at 1243 National City Boulevard, National City, California 91950-4397, or such other place as
the holder may from time to time designate by written notice to Maker, the principal sum of Two
Hundred Seventy -Two Thousand One Hundred Nineteen and No/100 Dollars ($272,119.00), or so
much as is advanced. No interest shall be charged hereunder, except in the event of a default by
Maker, in which case interest shall be deemed to have accrued beginning on the date first set forth
above at the rate of 10% simple interest per annum or the maximum rate than allowed by law,
whichever is less. This Note is issued pursuant to: (i) the DDA; (ii) the Deed of Trust (the "Deed of
Trust") being executed concurrently herewith by Maker in favor of the CDC, to be recorded in the
office of the County Recorder of San Diego County; and (iii) the Agreement Affecting Real Property
(the "AARP") being executed concurrently herewith by Maker and the CDC, to be recorded in the
office of the County Recorder of San Diego County. All capitalized terms which are not defined
herein shall have the meaning ascribed to them in the DDA.
2. Terms.
(a) Term of Loan; Forgiveness. Upon the timely completion of the Affordable Units in
accordance with the DDA, this Developer Note will be partially forgiven and the remaining balance
will convert to first-time homebuyer loans to Low -Income Households to assist those Low -Income
Households with the purchase of Affordable Units, as follows:
(1) Upon the closing of the sale of each Affordable Unit, as defined in the DDA,
the purchaser of such Affordable Unit shall execute a First -Time Homebuyer Note in a form
approved by the CDC in an amount equal to the sum of: (i) the Single Family Mortgage Limit for the
County of San Diego under Section 203(b) of the National Housing Act (12 U.S.C. § 1709(b)) or any
other limitation then provided by Code of Federal Regulations §92.254(a) or any successor law or
regulation; less (ii) the Maximum Purchase Price, as defined in the DDA. In the event the foregoing
calculation results in an amount equal to zero or a negative number, then the requirement that the
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purchaser of the Affordable Unit execute a First -Time Homebuyer Note as set forth herein, shall be
null and void.
(2) Any amount of this Developer Note that is not assumed by the purchasers of
the Affordable Units as set forth in Section 2(a)(1), above, shall be forgiven in its entirety.
(b) No Prepayments. This Note may not be prepaid in whole or in part.
(c) No Transfers Without CDC Consent. Should the undersigned sell, convey, transfer,
further encumber, or dispose of the real property described in the Deed of Trust ("Property"), or any
part of it, or any interest in it, without first obtaining the written consent of CDC, or the then holder
of this Developer Note, then all obligations secured by this Developer Note may be declared due and
payable, at the option of CDC, or the then holder of this Developer Note, as provided in Section 4,
below. CDC reserves the right to approve all sales, transfers, conveyances, additional encumbrances,
or dispositions of the Property. Consent to one transaction of this type will not constitute a waiver of
the right to require consent to future or successive transactions. If such a sale, transfer, further
encumbrance, disposition, conveyance or transfer is approved by CDC, then upon the sale, transfer,
further encumbrance, conveyance, transfer all accrued but unpaid interest on this Developer Note
shall be paid to CDC, at CDC's option.
3. Security for Note. This Note is secured by the Deed of Trust of even date herewith executed
by Maker, which creates a lien on the Property. The CDC shall partially reconvey the Deed of Trust
as provided therein.
4. Acceleration Upon Default. Notwithstanding Section 2(a), above, or anything contained
herein to the contrary, in the event of any default in the performance of any of the terms, covenants
and conditions contained in: (i) this Developer Note, the DDA, AARP or Deed of Trust, including
without limitation the failure by Maker to complete all of the Improvements, as defined in the DDA,
on or before , 200; (ii) any other instrument executed by the Maker in conjunction with
this Developer Note; (iii) any prior or junior note secured by an encumbrance on the Property or any
portion of it; or (iv) in the event of the filing of a Bankruptcy proceeding by or against Maker, then
(a) at the option of the CDC the Property shall revert back to the CDC; (b) all sums owing by Maker
to the CDC shall at the option of CDC immediately become due and payable; (c) CDC shall have no
obligation to disburse any further funds to Maker or any other person: and (d) CDC shall be released
from any and all obligations to Maker under the terms of this Developer Note. These remedies shall
be in addition to any and all other rights and remedies available to CDC, either at law or in equity.
Further, default interest shall accrue on the principal balance of this Developer Note from the date of
this Developer Note at the rate of ten percent (10%) simple interest per annum or the maximum rate
than allowed by law, whichever is less. Failure to exercise such option shall not constitute a waiver
of the right to exercise it in the event of any subsequent default.
5. Costs Paid by Maker. Maker agrees to pay the following costs, expenses, and attorneys' fees
paid or incurred by the holder of this Developer Note, or adjudged by a court: (a) reasonable costs of
collection, costs, and expenses, and attorneys' fees paid or incurred in connection with the collection
or enforcement of this Developer Note, whether or not suit is filed; and (b) costs of suit and such
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sum as the court may adjudge as attorneys' fees in any action to enforce payment of this Developer
Note or any part of it.
6. Payment and Interest Calculation. Principal and interest shall be payable in lawful money of
the United States of America. Interest shall be computed based on a 360-day year and 30-day month
and the actual number of days elapsed. Payments shall be applied to interest first and then to any
unpaid principal balance.
7. Incorporation of Documents. The provisions of the DDA, AARP and Deed of Trust are
expressly incorporated in this Developer Note by this reference.
8. Waiver. Maker hereby waives diligence, presentment, protest and demand, notice of protest,
dishonor and nonpayment of this Developer Note, and expressly agrees that, without in any way
affecting the liability of Maker hereunder, CDC may extend any maturity date or the time for
payment of any installment due hereunder, accept additional security, release any party liable
hereunder and release any security now or hereafter securing this Developer Note. Maker further
waives, to the full extent permitted by law, the right to plead any and all statutes of limitations as a
defense to any demand on this Developer Note, or on any deed of trust, security agreement, guaranty
or other agreement now or hereafter securing this Developer Note.
9. Recourse.
(a) This Note is recourse to Maker.
(b) Maker shall indemnify, defend, protect and hold CDC harmless from and against any
and all loss, damage, liability, action, cause of action, cost or expense (including, without limitation,
reasonable attorneys' fees and expenses) incurred by CDC as a result of any (i) fraud or material
misrepresentation under or in connection with the Loan or any Loan Document; (ii) intentional bad
faith waste of the Property; (iii) losses resulting from Maker's failure to maintain insurance as
required under the Deed of Trust; and (iv) misapplication of any rents, security deposits, insurance
proceeds, condemnation awards or any other proceeds derived from the collateral security in a
manner prohibited by the DDA, Deed of Trust or AARP. CDC shall promptly provide Maker with
written notice of any event for which Maker has an indemnification obligation as provided in this
Paragraph 9(b).
10. Late Charge. In addition to the foregoing, if any installment due hereunder, is not paid within
fifteen (15) days from the date due, Maker promises to pay a "late charge" of five percent (5%) of the
installment so overdue to defray the expense incident to handling any such delinquent payment or
payments.
11. Severability. If any provision of this Developer Note is determined to be void by court of
competent jurisdiction, such determination shall not affect any other provision of this Developer
Note, and such other provisions shall remain in full force and effect.
12. Non -Waiver. No delay in demanding or failure to demand performance hereunder shall
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constitute a waiver by holding of its right to subsequently demand such performance or to exercise
any remedies for any default hereunder. Further, in order to be effective, any waiver of any of
CDC's rights and remedies hereunder shall be expressed in a writing signed by CDC. Further waiver
by CDC of any right hereunder shall not constitute a waiver of any other right, including but not
limited to the right to exercise any and all remedies for a different or subsequent event of default
hereunder.
13. Replacement Note. The undersigned agrees that, in the event that this Developer Note shall
become lost or stolen, upon request of CDC, the undersigned shall execute a replacement Note
incorporating the terms hereof, provided that CDC shall furnish a written agreement to indemnify the
undersigned against all losses, costs, and damages arising from a duplicative demand for payment
under this Developer Note.
14. Interpretation. This Note shall be governed and interpreted in accordance with applicable
California law.
Maker:
San Diego Habitat for Humanity, Inc., a California nonprofit corporation
By:
Print Name:
Its:
By:
Print Name:
Its:
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Attachment No. 2
Developer Deed of Trust
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Files\OLK8B\DDA v2.doc
Recording Requested By:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
And When Recorded Mail To:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
This document is exempt from the payment of a recording fee pursuant to Government Code Section
6103.
DEED OF TRUST
(1441 Harding Avenue)
THIS DEED OF TRUST is made this day of , 2009, between San
Diego Habitat for Humanity, Inc., a California nonprofit corporation, whose address is 10222 San
Diego Mission Road, San Diego, CA 92108 ("Trustor"), Stewart Title Company ("Trustee"); and the
Community Development Commission of the City of National City ("Beneficiary"), whose address
is 1243 National City Boulevard, National City, California 91950-4397;
TRUSTOR HEREBY irrevocably grants, transfers, and assigns to Trustee, in trust, with
power of sale, all that property in the City of National City, County of San Diego, State of California,
described as:
(See Legal Description - Exhibit "A")
FOR THE PURPOSE OF SECURING:
(a) Payment of the indebtedness evidenced by that certain Promissory Note of even date herewith
executed by Trustor, in the principal sum of Two Hundred Seventy -Two Thousand One Hundred
Nineteen and No/100 Dollars ($272,119.00), and any renewal, extension, or modification of the
promissory note (the "Note");
(b) Any additional sums and interest that may hereafter be loaned to the then record owner of the
Property by Beneficiary, when evidenced by another note or notes reciting that it or they are so
secured;
(c) That certain Development and Disposition Agreement of even date herewith executed by
Trustor and Beneficiary, and any renewal, amendment, extension, or modification of the
Development and Disposition Agreement (the "DDA");
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(d) That certain Agreement Affecting Real Property of even date herewith executed by Trustor
and Beneficiary, and any renewal, amendment, extension, or modification of the Agreement
Affecting Real Property (the "AARP");
(e)
The performance of each agreement contained in this Deed of Trust.
A. TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES:
1. Maintenance and Repair. To keep the Property in good condition and repair; to pay when due
all claims for labor performed and materials furnished for the Property; to comply with all laws
affecting the Property or requiring any alterations or improvements to be made on the Property; not
to commit or permit waste of the Property; not to commit, suffer, or permit any act upon the Property
in violation of law; and to cultivate, maintain the landscaping, and do all other acts that from the
character or use of the Property may be reasonably necessary.
2. Fire Insurance. To provide, maintain, and deliver to Beneficiary fire insurance satisfactory to
and with loss payable to Beneficiary as its interest may appear. The amount collected under any fire
or other insurance policy may be applied by Beneficiary upon any indebtedness secured by this Deed
of Trust and in any order determined by Beneficiary, or at the option of Beneficiary the entire amount
so collected or any part of that amount may be released to Trustor, except that if the proceeds of the
award for any taking or injury to the Property or the amount of such proceeds plus funds provided by
Trustor is sufficient to allow for the repair and restoration of the Property and such repair and/or
restoration is physically and legally possible, then the Trustor shall use the proceeds of the award to
timely effectuate such repair and/or restoration. Upon receipt of such proceeds, Beneficiary may
hold the proceeds as further security, or apply or release them in the same manner and with the same
effect as provided in this Deed of Trust for the disposition of proceeds of fire or other insurance.
This application or release shall not cure or waive any default or notice of default under this Deed of
Trust or invalidate any act done pursuant to such a notice.
3. Defense of Security. To appear in and defend any action or proceeding purporting to affect
the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee; and to pay all
costs and expenses, including cost of evidence of title and attorneys' fees in a reasonable sum, in any
such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by
Beneficiary to foreclose this Deed of Trust.
4. Payment of Liens and Taxes. To pay, at least ten (10) days before delinquency, all taxes and
assessments affecting the Property, including assessments on appurtenant water stock, all
encumbrances, charges, and liens, with interest, on the Property or any part of the Property, which
appear to be prior or superior to this Deed of Trust; and all costs, fees, and expenses of this Trust. If
Trustor fails to make any payment or to do any act as provided in this Deed of Trust, then
Beneficiary or Trustee may (but is not obligated to) make the payment or do the act in the required
manner and to the extent deemed necessary by Beneficiary or Trustee to protect the security of this
Deed of Trust. The performance by Beneficiary or Trustee of such an act shall not require notice to
or demand upon Trustor and shall not release Trustor from any obligation under this Deed of Trust.
Beneficiary or Trustee shall also have the following related rights and powers: to enter upon the
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Property for the foregoing purposes; to appear in and defend any action or proceeding purporting to
affect the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee; to pay,
purchase, contest, or compromise any encumbrance, charge, or lien that in the judgment of either
appears to be prior or superior to this Deed of Trust; to employ counsel; and to pay necessary
expenses and costs, including attorneys' fees.
5. Reimbursement of Costs. To pay immediately and without demand all sums expended by
Beneficiary or Trustee pursuant to this Deed of Trust, with interest from date of expenditure at the
amount allowed by law in effect at the date of this Deed of Trust, and to pay any reasonable amount
demanded by Beneficiary (up to the maximum allowed by law at the time of the demand) for any
beneficiary statement requested by Trustor or any other beneficiary of a Deed of Trust encumbering
the Property regarding the obligation secured by this Deed of Trust.
6. Use. That Trustor will not permit or suffer the use of any of the Property for any purpose
other than the use for which the same was intended at the time this Deed of Trust was executed.
7. Incorporation of DDA and AARP. That the DDA and AARP are incorporated herein by
reference and made a part of this Deed of Trust.
8. Performance of Other Obligations. To perform, in a timely manner, each agreement and
covenant by and between Trustor on any and all notes, loans and deeds of trust that are senior and/or
junior to this Deed of Trust. A default in any of these obligations, beyond any applicable cure
period, shall constitute a default under this Deed of Trust.
B. THE PARTIES AGREE THAT:
9. Waiver of Late Payments. By accepting payment of any sum secured by this Deed of Trust
after its due date, Beneficiary does not waive its right either to require prompt payment when due of
all other sums so secured or to declare default for failure to pay any indebtedness secured by this
Deed of Trust.
10. Trustee's Powers. Upon written request of Beneficiary and presentation of this Deed of
Trust, Trustee may (a) reconvey all or any part of the Property; (b) consent to the making and
recording, or either, of any map or plat of all or any part of the Property; (c) join in granting any
easement on the Property; or (d) join in or consent to any extension agreement or any agreement
subordinating the lien, encumbrance, or charge of this Deed of Trust. Trustee need not provide
Trustor with notice before taking any of the foregoing actions, and shall not be liable for the proper
performance of the act. The exercise by Trustee of any of the foregoing powers shall not affect the
personal liability of any person for payment of the indebtedness secured by this Deed of Trust, or the
lien of this Deed of Trust on the remaining property as security for the repayment of the full amount
secured by this Deed of Trust.
11. Partial Reconveyance. Beneficiary shall cause Trustee to partially reconvey this Deed of
Trust, with respect to each Affordable Unit, upon the last to occur of: (i) the sale of the Affordable
Unit; (ii) the Low -Income Household's execution of the First -Time Homebuyer Note; (iii) the
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recordation against the individual Affordable Unit of the Resale Restriction; and (iv) the recordation
against the individual Affordable Unit of the deed of trust securing the First -Time Homebuyer Note
and the Resale Restriction.
12. Full Reconveyance. Upon written request of Beneficiary stating that all obligations secured
by this Deed of Trust have been performed in full, surrender of this Deed of Trust, any notes secured
by this Deed of Trust to the Trustee for cancellation and retention, and payment of Trustee's fees and
charges, Trustee shall reconvey, without warranty, the Property then subject to this Deed of Trust.
Absent manifest error, the recitals in the reconveyance shall be conclusive proof of the truthfulness
of the recitals. The grantee in the reconveyance may be described as "the person or persons legally
entitled thereto." Five years after issuance of the full reconveyance, Trustee may destroy the Note
and this Deed of Trust, unless directed in the request to retain them.
13. Assignment of Rents. As additional security, Trustor hereby gives to and confers upon
Beneficiary the right, power, and authority during the continuance of these Trusts, to collect the
rents, issues, and profits of the Property, but reserves the right, prior to any default by Trustor in
payment of any indebtedness secured by this Deed of Trust or in the performance of any agreement
under this Deed of Trust, to collect and retain these rents, issues, and profits as they become due and
payable. Upon any such default for which cure has not been commenced within thirty (30) days and
thereafter completed with diligence, Beneficiary may, without notice and without regard to the
adequacy of the security for the indebtedness secured by this Deed of Trust, either personally or by
agent or court -appointed receiver, do the following: enter upon and take possession of the Property
or any part of the Property; sue for or otherwise collect all rents, issues, and profits, including those
past due and unpaid; and apply these rents, issues, and profits, less costs and expenses of operation
and collection (including reasonable attorneys' fees), upon any indebtedness secured by this Deed of
Trust, in any order determined by Beneficiary. The exercise of the foregoing rights by Beneficiary
shall not cure or waive any default or notice of default under this Deed of Trust or invalidate any act
done pursuant to such a notice.
14. Default in Foreclosure. Upon default by Trustor in the payment of any indebtedness secured
by this Deed of Trust or in the performance of any obligation under this Deed of Trust, the DDA
and/or the AARP for which cure has not been commenced within thirty (30) days and thereafter
completed with diligence, Beneficiary may declare all sums secured by this Deed of Trust
immediately due and payable by delivering to Trustee a written declaration of default and demand for
sale and a written notice of default and election to sell the Property. Trustee shall cause the notice of
default and election to sell to be recorded. Beneficiary also shall deposit with Trustee this Deed of
Trust, a copy of the Agreement, and all other documents evidencing obligations secured by this Deed
of Trust. After the required time period has lapsed following the recordation of the notice of default,
and after notice of sale has been given as required by law, Trustee, without demand on Trustor, shall
sell the Property at the time and place specified in the notice of sale, either as a whole or in separate
parcels, and in any order determined by Trustee, at public auction to the highest bidder for cash in
lawful money of the United States, payable at the time of sale. Trustee may postpone sale of all or
any portion of the Property by public announcement at the time and place of sale, and from time to
time thereafter may postpone the sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to the purchaser at the auction its deed conveying the Property
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sold, but without any covenant or warranty, express or implied. Absent manifest error, the recital in
the deed of any matter or fact shall be conclusive proof of the truthfulness of the recital. Any person,
including Trustor, Trustee, or Beneficiary, may purchase at the sale. After deducting all costs, fees,
and expenses of Trustee and Beneficiary under this paragraph, including costs ofprocuring evidence
of title incurred in connection with sale, Trustee shall apply the proceeds of sale to payment of: all
sums expended under the terms of this Deed of Trust, not then repaid, with accrued interest at the
amount allowed by law in effect at the date of this Deed of Trust; all other sums then secured by this
Deed of Trust; and the remainder, if any, to the person or persons legally entitled to the remaining
proceeds.
15. Further Encumbrances. Should the undersigned agree to or actually sell, convey, transfer, or
dispose of, or further encumber the Property, or any part of it, or any interest in it (each, a
"Transfer"), without first obtaining the written consent of the Beneficiary, then all obligations
secured by the Deed of Trust may be declared due and payable, at the option of the Beneficiary,
unless such Transfer is permitted under Section 603 of the DDA. Consent to one transaction of this
type will not constitute a waiver of the right to acquire consent to future or successive transactions.
16. General Provisions. This Deed of Trust applies to, inures to the benefit of, and binds all
parties to this Deed of Trust and their heirs, legatees, devisees, administrators, executors, successors,
and assigns. The term "Beneficiary" shall mean the Community Development Commission of the
City of National City, and the heirs, legatees, devisees, administrators, executors, and assigns of any
such person. In this Deed, whenever the context so requires, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
17. Acceptance by Trustee. Trustee accepts this Trust when this Deed, duly executed and ack-
nowledged, is made a public record as provided by law. Trustee is not obligated to notify any party
to this Deed of Trust of pending sale under any other deed of trust or of any action or proceeding in
which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee.
18. Substitution of Trustees. Beneficiary, or any successor in ownership of any indebtedness
secured by this Deed of Trust, may from time to time, by written instrument, substitute a successor or
successors to any Trustee named in or acting under this Deed of Trust. The substitution instrument
shall contain the name of the original Trustor, Trustee, and Beneficiary under this Deed of Trust, the
book and page where this Deed is recorded, and the name and address of the new Trustee. When
executed by Beneficiary and duly acknowledged and recorded in the office of the recorder of the
county or counties where the Property is situated, the substitution instrument shall be conclusive
proof of proper substitution of the successor Trustee or Trustees. Any successor Trustee or Trustees
shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers,
and duties.
19. Cumulative Powers and Remedies. The powers and remedies conferred in this Deed of Trust
are concurrent and cumulative to all other rights and remedies provided in this Deed of Trust or
given by law. These powers and remedies may be exercised singly, successively, or together, and as
often as deemed necessary.
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20. Conclusiveness of Recitals. The recitals contained in any reconveyance, trustee's deed, or
any other instrument executed by the Trustee from time to time under the authority of this Deed of
Trust or in the exercise of its powers or the performance of its duties under this Deed of Trust, shall
be conclusive evidence of their truth, whether stated as specific and particular facts, or in general
statements or conclusions absent manifest error. Further, the recitals shall be binding and conclusive
upon the Trustor, its heirs, executors, administrators, successors, and assigns, and all other persons.
21. Attorneys' Fees. If any action is brought for the foreclosure of this Deed of Trust or for the
enforcement of any provision of this Deed of Trust (whether or not suit is filed), Trustor agrees to
pay all costs and expenses of Beneficiary and Trustee, including reasonable attorneys' fees; and these
sums shall be secured by this Deed of Trust.
22. Co -trustees. If two or more persons are designated as Trustees in this Deed of Trust, any, or
all, power granted in this Deed of Trust to Trustee may be exercised by any of those persons, if the
other person or persons are unable, for any reason, to act. Any recital of this inability in any
instrument executed by any of those persons shall be conclusive against Trustor and Trustor's heirs
and assigns.
23. Request for Notices of Default and Sale. In accordance with Section 2924b of the California
Civil Code, request is hereby made that a copy of any Notice of Default and a copy of any Notice of
Sale under that Deed of Trust executed by the Trustor concerning this Property he mailed to:
Community Development Commission of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
NOTICE: A copy of any notice of default and of any notice of sale will be sent only to the
address contained in this recorded request. If your address changes, a new request must be
recorded.
The undersigned Trustor requests that a copy of any notice of default and of any notice of sale under
this Deed of Trust be mailed to Trustor at the address of Trustor set forth above.
24. Inspections. Trustor shall permit Beneficiary and its agents or representatives, to inspect the
Property at any and all reasonable times, with at least 24 hours advance notice. Inspections shall be
conducted so as not to interfere with the tenants' use and enjoyment of the Property.
25. Hazardous Materials Defined. For purposes of this Deed of Trust, "Hazardous Materials"
mean and include any hazardous, toxic or dangerous waste, substance or material including, without
limitation, flammable explosives, radioactive materials, asbestos, hazardous wastes, toxic substances
and any materials or substances defined as hazardous materials, hazardous substances or toxic
substances in (or for purposes of) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), as amended (42 U.S.C. §9601, et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. §1801, et seq.), the Resource Conservation and Recovery Act (42
U.S.C. §6901, et seq.), and those substances defined as hazardous wastes in §25117 of the California
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Health and Safety Code or as hazardous substances in §25316 of the California Health and Safety
Code or in any regulations promulgated under either such law, any so-called "Superfund" or
"Superlien" law, or any other federal, state or local statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect.
26. Trustor's Hazardous Materials Representations and Warranties and Indemnity. In addition to
the general and specific representations, covenants and warranties set forth in the Deed of Trust or
otherwise, Trustor represents, covenants and warrants, with respect to Hazardous Materials, as
follows:
(a) Neither Trustor nor, to the best knowledge of Trustor, any other person, has ever
caused or permitted any Hazardous Materials to be manufactured, placed, held, located or disposed
of on, under or at the Property or any part thereof, and neither the Property nor any part thereof, or
any property adjacent thereto, has ever been used (whether by the Trustor or, to the best knowledge
of the Trustor, by any other person) as a manufacturing site, dump site or storage site (whether
permanent or temporary) for any Hazardous Materials;
(b) Trustor hereby agrees to indemnify Beneficiary, its officers, employees, contractors
and agents, and hold Beneficiary, its officers, employees, contractors and agents harmless from and
against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every
kind whatsoever paid, incurred or suffered by, or asserted against Beneficiary, its officers,
employees, contractors or agents for, with respect to, or as a direct or indirect result of, the presence
or use, generation, storage, release, threatened release or disposal of Hazardous Materials on or under
the Property or the escape, seepage, leakage, spillage, discharge, emission or release of any
Hazardous Materials from the Property (including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under CERCLA, any so-called
"Superfund" or "Superlien" law, or any other federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct
concerning any Hazardous Materials) regardless of whether or not caused by or within the control of
Trustor. Notwithstanding the foregoing, Trustor's obligations under this section shall not apply to
any losses, liabilities, damages, injuries, costs, expenses, or claims which arise out of or relate to
Hazardous Materials which (1) were present, generated, released, or stored on the Property on or
before the date that Trustor acquired title to the Property or (2) are generated, released or stored on
the Property after the date that Beneficiary takes possession thereof.
(c) Trustor has not received any notice of (i) the happening of any event involving the
use, spillage, discharge, or cleanup of any Hazardous Materials ("Hazardous Discharge") affecting
Trustor or the Property or (ii) any complaint, order, citation or notice with regard to air emissions,
water discharges, noise emissions or any other environmental, health or safety matter affecting
Trustor or the Property ("Environmental Complaint") from any person or entity, including, without
limitation, the United States Environmental Protection Agency ("EPA"). If Trustor receives any
such notice after the date hereof, then Trustor will give, within seven (7) business days thereafter,
oral and written notice of same to Beneficiary.
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(d) Without limitation of Beneficiary's rights under this Deed of Trust, Beneficiary shall
have the right, but not the obligation, to enter onto the Property or to take such other actions as it
deems necessary or advisable to clean up, remove, resolve or minimize the impact of, or otherwise
deal with, any such Hazardous Materials or Environmental Complaint upon its receipt of any notice
from any person or entity, including without limitation, the EPA, asserting the existence of any
Hazardous Materials or an Environmental Complaint on or pertaining to the Property which, if true,
could result in an order, suit or other action against Trustor affecting any part of the Property by any
governmental agency or otherwise which, in the sole opinion of Beneficiary, could jeopardize its
security under this Deed of Trust. All reasonable costs and expenses incurred by Beneficiary in the
exercise of any such rights shall be secured by this Deed of Trust and shall be payable by Trustor
upon demand together with interest thereon at a rate equal to the highest rate payable under the note
secured hereby.
(e) The foregoing representation, covenants, indemnities and warranties shall be
continuing and shall be true and correct for the period from the date hereof to the release of this Deed
of Trust (whether by payment of the indebtedness secured hereby or foreclosure or action in lieu
thereof), and these representations, covenants, indemnities and warranties shall survive such release.
27. Choice of Law. This Deed of Trust shall be governed by and construed in accordance with
the laws of the State of California.
28. Authority to Sign. All individuals signing this Deed of Trust for a party which is a
corporation, limited liability company, partnership or other legal entity, or signing under a power of
attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the
Beneficiary that they have the necessary capacity and authority to act for, sign and bind the
respective entity or principal on whose behalf they are signing.
TRUSTOR:
San Diego Habitat for Humanity, Inc., a California nonprofit corporation
By:
Print Name:
Its:
By:
Print Name:
Its:
8
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ACKNOWLEDGMENT
State of California )
County of San Diego )
On , 200 before me,
personally appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
ACKNOWLEDGMENT
State of California )
County of San Diego )
On , 200_ before me,
personally appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
9
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Exhibit "A"
Legal Description
All that certain real property situated in the City of National City, County of San Diego, State of
California, described as follows:
10
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Attachment No. 3
Grant Deed
49
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Recording Requested By And When
Recorded Mail To And Mail Tax
Statements To:
San Diego Habitat for Humanity, Inc.
10222 San Diego Mission Road
San Diego, CA 92108
This document is exempt from payment of a recording fee
pursuant to government Code Section 6103.
GRANT DEED
(1441 Harding Avenue)
For valuable consideration, receipt of which is hereby acknowledged,
The Community Development Commission of the City of National City ("CDC"), a
public body, corporate and politic, acting to carry out the Redevelopment Plan ("Redevelopment
Plan") for the National City Redevelopment Project (the "Project"), under the Community
Redevelopment Law of California, hereby grants to San Diego Habitat for Humanity, Inc., a
California nonprofit corporation ("Developer"), the real property hereinafter referred to as the
"Site," described in Exhibit A attached hereto and incorporated herein, subject to the existing
easements, restrictions and covenants of record described there.
1. The Site is conveyed in accordance with and subject to the Redevelopment Plan which
was approved and adopted by the Community Development Commission of the City of National
City, and a Disposition an Development Agreement entered into between CDC and Developer
dated , 2009 (the "DDA"), a copy of which is on file with the CDC at its
offices as a public record and which is incorporated herein by reference. The DDA generally
requires the Developer to construct three (3) for -sale, single family homes on the Site (the
"Developer Improvements"), and other requirements as set forth therein. All terms used herein
shall have the same meaning as those used in the DDA.
2. The Developer covenants and agrees for itself, its successors, its assigns, and every
successor in interest to the Site or any part thereof, that upon the date of this Grant Deed and
during construction and thereafter, the Developer shall devote the Site to the uses specified in the
Redevelopment Plan and the DDA for the periods of time specified therein. All uses conducted
on the Site, including, without limitation, all activities undertaken by the Developer pursuant to
the DDA, shall conform to the Redevelopment Plan and all applicable provisions of the City of
National City Municipal Code. The foregoing covenants shall run with the land.
3. Except as provided in the DDA and Section 10 of this Grant Deed:
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(a) The Developer shall not make any sale, transfer, conveyance, subdivision,
refinancing or assignment of the Site or any part thereof or any interest therein, without the prior
written consent of the CDC except as permitted by Section 603 of the DDA.
(b) The Developer shall not place or suffer to be placed on the Site any lien or
encumbrance other than mortgages, deeds of trust, or any other form of conveyance required for
financing of the construction of the Improvements on the Site, and any other expenditures
necessary and appropriate to develop the Site pursuant to the DDA, except as provided in Section
313 of the DDA.
(c) All of the terms, covenants and conditions of this Grant Deed shall be binding
upon the Developer and the permitted successors and assigns of the Developer. Whenever the
term "Developer" is used in this Grant Deed, such term shall include any other permitted
successors and assigns as herein provided.
4. All documents of transfer shall contain clauses that shall state that there will be no
discrimination against or segregation of, any person or group of persons on account of race,
color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the
Developer himself or herself or any transferee in interest 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 tenants, lessees,
subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run
with the land.
5. The CDC has the right, at its election, to reenter and take possession of the Site, with all
improvements thereon, and terminate and revest in the CDC the estate conveyed to the Developer
if after the Closing and prior to the issuance of the Release of Construction Covenants, the
Developer (or its successors in interest) shall:
(a) fail to start the construction of the Improvements as required by the DDA for a
period of sixty (60) days after written notice thereof from the CDC;
(b) abandon or substantially suspend construction of the Improvements required by
the DDA for a period of ninety (90) days after written notice thereof from the CDC;
(c) fail to complete construction of improvements as required by the DDA;
(d) contrary to the provisions of Section 603 of the DDA transfer or suffer any
involuntary transfer of the Site or any part thereof in violation of the DDA; or
(e) file bankruptcy or an insolvency arrangement with creditors.
Such right to re-enter, terminate and revest shall be subject to and be limited by and shall
not defeat, render invalid or limit:
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(1) Any mortgage or deed of trust permitted by the DDA; or
(2) Any rights or interests provided in the DDA for the protection of the holders of
such mortgages or deeds of trust.
Upon the revesting in the CDC of title to the Site as provided in this Section 5, the CDC
shall, pursuant to its responsibilities under state law, use its reasonable efforts to resell the Site as
soon and in such manner as the CDC shall find feasible and consistent with the objectives of
such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and
responsible party or parties (as determined by the CDC) who will assume the obligation of
making or completing the Improvements, or such improvements in their stead as shall be
satisfactory to the CDC and in accordance with the uses specified for such Site or part thereof in
the Redevelopment Plan. Upon such resale of the Site, the net proceeds thereof after repayment
of any mortgage or deed of trust encumbering the Site which is permitted by Grant Deed, shall be
applied:
(i) First, to reimburse the CDC, on its own behalf or on behalf of the City, all
reasonable costs and expenses incurred by the CDC, excluding City and CDC staff costs, but
specifically, including, but not limited to, any expenditures by the CDC or the City in connection
with the recapture, management and resale of the Site or part thereof (but less any income
derived by the CDC from the Site or part thereof in connection with such management); all taxes,
assessments and water or sewer charges with respect to the Site or part thereof which the
Developer has not paid; any payments made or necessary to be made to discharge any
encumbrances or liens existing on the Site or part thereof at the time or revesting of title thereto
in the CDC, or to discharge or prevent from attaching or being made any subsequent
encumbrances or liens due to obligations, defaults or acts of the Developer, its successors or
transferees; any expenditures made or obligations incurred with respect to the making or
completion of the improvements or any part thereof on the Site, or part thereof; and any amounts
otherwise owing the CDC, and in the event additional proceeds are thereafter available, then
(ii) Second, to reimburse the Developer, its successor or transferee, up to the amount
equal to the sum of (a) the costs incurred for the acquisition and development of the Site and for
the improvements existing on the Site at the time of the reentry and possession, less (b) any gains
or income withdrawn or made by the Developer from Site or the improvements thereon.
Any balance remaining after such reimbursements shall be retained by the CDC as its property.
The rights established in this Section 5 are not intended to be exclusive of any other right, power
or remedy, but each and every such right, power, and remedy shall be cumulative and concurrent
and shall be in addition to any other right, power and remedy authorized herein or now or
hereafter existing at law or in equity. These rights are to be interpreted in light of the fact that the
CDC will have conveyed the Site to the Developer for redevelopment purposes, particularly for
development of three (3) for -sale, single family homes and appurtenant uses, and not for
speculation in undeveloped land.
3
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6. No violation or breach of the covenants, conditions, restrictions, provisions or limitations
contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge
of any mortgage or deed of trust or security interest permitted by paragraph 4 of this Grant Deed;
provided, however, that any subsequent owner of the Site shall be bound by such remaining
covenants, conditions, restrictions, limitations and provisions, whether such owner's title was
acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
7. All covenants contained in this Grant Deed are covenants running with the land and shall
be included in all deeds.
8. All covenants without regard to technical classification or designation shall be binding for
the benefit of the CDC, and such covenants shall run in favor of the CDC for the entire period
during which such covenants shall be in force and effect, without regard to whether the CDC is
or remains an owner of any land or interest therein to which such covenants relate. The CDC, in
the event of any breach of any such covenants, shall have the right to exercise all the rights and
remedies and to maintain any actions at law or suits in equity or other proper proceedings to
enforce the curing of such breach.
9. Both CDC, its successors and assigns, and Developer and the successors and assigns of
Developer in and to all or any part of the fee title to the Site shall have the right with the mutual
consent of the CDC to consent and agree to changes in, or to eliminate in whole or in part, any of
the covenants, easements or restrictions contained in this Grant Deed without the consent of any
tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or
any other person or entity having any interest less than a fee in the Site. However, Developer and
CDC are obligated to give written notice to and obtain the consent of any first mortgagee prior to
consent or agreement between the parties concerning such changes to this Grant Deed. The
covenants contained in this Grant Deed, without regard to technical classification, shall not
benefit or be enforceable by any owner of any other real property within or outside the Project
Area, or any person or entity having any interest in any other such realty. Any amendment to the
Redevelopment Plan which proposes to change the uses or development permitted on the Site, or
otherwise proposes a change of any of the restrictions or controls that apply to the Site, shall
require the written consent of the first mortgagee and the Developer or the successors and assigns
of Developer in and to all or any part of the fee title to the Site, but any such amendment which
proposes a change affecting the Site shall not require the consent of any tenant, lessee, easement
holder, licensee, mortgagee (other than the first mortgagee), trustee, beneficiary under a deed of
trust or any other person or entity having any interest less than a fee in the Site.
10. Notwithstanding anything contained herein to the contrary, all restrictions against and
obligations of Developer set forth herein shall terminate with respect to Developer, but not its
successors and assigns, with respect to any Unit upon the sale of such Unit for residential
purposes and shall cease with respect to the entire Site following the sale of all of the Units.
CDC:
Community Development Commission of the City of National City
4
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By: Dated: , 2009
Print Name:
Its:
5
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State of California )
County of San Diego )
On
ACKNOWLEDGMENT
, 200 before me,
personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
6
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Exhibit "A"
Legal Description
7
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Attachment No. 4
Release of Construction Covenants
50
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Files\OLK8B\DI)A v2.doc
Recording Requested By:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
And When Recorded Mail To:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
This document is exempt from the payment of a recording fee pursuant to Government Code
Section 6103.
RELEASE OF CONSTRUCTION COVENANTS
(1441 Harding Avenue)
THIS RELEASE OF CONSTRUCTION COVENANTS ("Release") is made by the
Community Development Commission of the City of National City, a public body corporate and
politic ("CDC"), in favor of San Diego Habitat for Humanity, Inc., a California nonprofit
corporation ("Developer"), as of this day of , 20 .
RECITALS
A. CDC and Developer have entered into that certain Disposition and Development
Agreement (the "DDA") dated , 2008 concerning the redevelopment of certain
real property situated in the City of National City, California as more fully described in Exhibit
"A" attached hereto and made a part hereof (the "Site").
B. As referenced in Section 312 of the DDA, CDC is required to furnish Developer
or its successors with a Release of Construction Covenants upon completion of construction of
the Improvements, as defined in the DDA, on the Site; which Release of Construction Covenants
is required to be in such form as to permit it to be recorded in the Recorder's Office of San Diego
County. This Release is conclusive determination of satisfactory completion of the construction
and development required by the DDA with respect the Site.
C. CDC has conclusively determined that such construction and development of the
site has been satisfactorily completed.
NOW, THEREFORE, CDC hereby certifies as follows:
1
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1. The Improvements have been fully and satisfactorily completed in conformance
with the DDA. Any operating requirements and all use, maintenance or nondiscrimination
covenants contained in the DDA shall remain in effect and enforceable according to their terms.
2. Nothing contained in this instrument shall modify in any other way any other
provisions of the DDA.
CDC:
Community Development Commission of the City of National City
By:
Print Name:
Its:
2
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Attachment No. 5
Schedule of Performance
51
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Attachment No. 5
Schedule of Performance
Item
DDA Executed by Developer
DDA Approved by CDC Board
Developer Submission of Concept Drawings
Developer Submission of Landscape and
Grading Plans
Developer Submission of Construction Drawings
Closing of Sale of Site to Developer
Building Permit Issuance
Commencement of Construction
Commencement of Construction
Completion of Construction
Closing of Sales and Occupancy of Affordable
Units
Completion Date
March 30, 2009
Within 45 days after submission
of executed DDA by Developer
Not later than execution of
Agreement by Developer
Not later than execution of
Agreement by Developer
Not later than execution of
Agreement by Developer
Upon Satisfaction of All
Conditions to Closing, not later
than May 1, 2009
May 15, 2009
May 31, 2009 — Unit 1 and 2
January 2010 — 3rd unit
December, 2009, Unit 1
September, 2010 Unit 2 and 3
January 2010- Unit 1
September, 2010 — Unit 2 & 3
Attachment No. 6
Scope of Development
52
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Attachment No. 6
Scope of Development
The project is located at the northeast corner of W. 15th Street and Harding within a
Light Manufacturing Residential (MLR) zone. The 8,625 — square foot vacant
parcel is to be subdivided into three parcels, each approximately 2,877 square feet in
size and lot frontage of approximately 38 feet. The Developer will construct three
detached single-family residences to be offered for sale to low-income households
making less than 60% of the Area Median Income (AMI) and to utilize HOME
funding for the construction of the site.
Each lot will have a detached single family unit with private rear yards, and two -car
carports. The lots 1 and 3 would be two-story and lot 2 would contain a single -story
unit residence.
Attachment No. 7
Site Plan
53
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ctLi/sqf) dYr)
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Attachment No. 8
Site Legal Description
54
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Attachment No. 8
Legal Description
A
EXHIBIT "A"
All that certain real property situated in the County of San Diego, State of California,
described as follows:
Lots 8, 9 and 10 in Block 114 of National City, in the City of National City, County of San
Diego, State of California, according to the Map thereof No. 348, filed in the Office of the
County Recorder of said San Diego County, on October 2, 1882.
Assessor's Parcel Number: 559-063-04
CLTA Standard Owners Coverage -1990
Page 2
Attachment No. 9
Proforma
55
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TABLE 2
DEVELOPMENT COSTS
COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY
I. Direct Costs
Off -Site Improvements
On -Site Improvements
Parking
Shell Construction
Amenities/FF& E
Contingency
Subtotal Direct Costs
II. Indirect Costs
Architecture & Engineering
Permits & Fees
Legal & Accounting
Taxes & Insurance
Developer Fee
Marketing/Lease-Up
Contingency
Subtotal Indirect Costs
III. Financing Costs
Loan Fees
Interest During Construction
Interest During Sales/Lease-Up
HOA Dues on Unsold Units
Subtotal Financing Costs
Totals
$120,000
$45,000
$o
$343,600
$13,485
$30,000
$552,085
$25,000
$103,428
$7,500
$30,000
$76,800
$9,306
$6,000
$258,034
$o
$o
$o
$o
$o
Notes
$14 Per SF Site Area
$5 Per SF Site Area
$o Per Space
$87 Per SF GBA
Allowance
5.4% of Directs
$140 Per SF GBA
4.5% of Directs
$26 Per SF GBA
1.4% of Directs
% of Value
13.9% of Directs
% of Value
2.3% of Indirects
% of Directs
% of Directs
% of Directs
% of Directs
% of Directs
% of Directs
IV. Total Development Costs
$810,119
$205 Per SF GBA
Please check the appropriate statement:
Check Box:
1. Prevailing wage requirements are included in the direct costs above.
2. Prevailing wages are not reflected in the direct costs above.
TABLE i
PROJECT DESCRIPTION
COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY
I. Location 1441 Harding Ave
II. Site Area 8625 SF 0.2 Acres
III. Total Residential Area 3950 SF
IV. Number of Stories i & 2 Stories
V. Unit Mix Average
Unit Size
One Bedroom Units SF
Two Bedroom Units SF
Three Bedroom t Units 125o SF
Four Bedroom 2 Units i35o SF
Total Number of Units 3 Units SF
VI. Affordability Mix
Market Rate Units Units
Affordable Units 2 Units
Total Units Units
VII. Parking
Parking Type Ground level
Number of Spaces 6 Spaces
TABLE 2
DEVELOPMENT COSTS
COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY
I. Direct Costs
Off -Site Improvements
On -Site Improvements
Parking
Shell Construction
Amenities/FF& E
Contingency
Subtotal Direct Costs
II. Indirect Costs
Architecture & Engineering
Permits & Fees
Legal & Accounting
Taxes & Insurance
Developer Fee
Marketing/Lease-Up
Contingency
Subtotal Indirect Costs
III. Financing Costs
Loan Fees
Interest During Construction
Interest During Sales/Lease-Up
HOA Dues on Unsold Units
Subtotal Financing Costs
Totals Notes
$120,000
$45,000
$0
$343,600
$13,485
$30,000
$552,085
$25,000
$103,428
$7,500
$30,000
$76,800
$9,306
$6,000
$258,034
$o
$o
$o
$o
$o
$14 Per SF Site Area
$5 Per SF Site Area
$o Per Space
$87 Per SF GBA
Allowance
5.4% of Directs
$140 Per SF GBA
4.5% of Directs
$26 Per SF GBA
1.4% of Directs
• of Value
13.9% of Directs
• of Value
2.3% of Indirects
• of Directs
• of Directs
• of Directs
• of Directs
• of Directs
• of Directs
IV. Total Development Costs
$810,119 $205 Per SF GBA
Please check the appropriate statement:
Check Box:
1. Prevailing wage requirements are included in the direct costs above.
2. Prevailing wages are not reflected in the direct costs above.
TABLE 3
RESIDENTIAL SALES PROCEEDS
COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY
Average # of Price Price Gross
Unit Size (SF) Units Per SF Per Unit Sales
I. Market Rate Units
One Bedroom @ Market SF $ $ $
Two Bedroom @ Market SF $ $ $
Three Bedroom @ Market SF $ $ $
Four Bedroom @ Market SF $ $ $
Total/Average - Market Rate Units SF $ $ $
II. Affordable Units
One Bedroom @ % AMI SF $ $ $
One Bedroom @ % AMI SF $ $ $
Two Bedroom @ _60_% AMI SF $ $
Two Bedroom @ % AMI SF $ $ $
Three Bedroom @ 6o% AMI 1250 SF i $ $175,000
Three Bedroom @ % AMI SF $ $
Four Bedroom
Four Bedroom
@ 6o% AMI
@ %AMI
Total/Average - Affordable Units
1350 SF 2 $
SF $
SF
$
$175,000
$
$184,500 $369,000
$544,000
III. Total Gross Sales Proceeds (I + II) SF $ $ $544,000
IV. Net Sales Proceeds
Gross Sales Proceeds (III, above)
(Less) Cost of Sale @
(Less) Target Developer Profit @
% of Gross Sales Proceeds
% of Gross Sales Proceeds
$544,000
$6,000 )
Net Sales Proceeds
$538,000
TABLE 4
RESIDUAL LAND VALUE AND FINANCING SURPLUS/(DEFICIT)
COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY
I. Supportable Investment
Net Sales Proceeds (Table 3)
II. (Less) Development Costs (Table 2)
(
Totals
$538,000
$810,119 )
III. Residual Land Value (I + II) ($272,119)
Per SF Site Area
($32)
IV. Financing Surplus/(Deficit)
Residual Land Value (III, above) ($282,119)
(Less) Acquisition Costs ( $400,000 )
Financing Surplus/(Deficit)
($682,119)
Attachment No. 10
Resale Restriction
56
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Recording Requested By:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
And When Recorded Mail To:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
AFFORDABLE HOUSING RESALE RESTRICTIONS,
OPTION TO DESIGNATE ELIGIBLE PURCHASERS AND
OPTION TO PURCHASE UPON DEFAULT
(1441 Harding Avenue)
This Affordable Housing Resale Restrictions, Option to Designate Eligible Purchasers
and Option to Purchase Upon Default ("Resale Restriction") is executed this day of
, 200, by the Community Development Commission of the City of National
City ("CDC"), and by , a
, as owner ("Owner") of the real property located in the City of
National City, County of San Diego, State of California, more particularly described on Exhibit
"A" attached hereto (the "Restricted Unit").
RECITALS
A. Owner is purchasing the Restricted Unit from San Diego Habitat for Humanity,
Inc. ("Habitat") concurrently with the execution and delivery of this Resale Restriction. The
Restricted Unit is part of a larger parcel of real property (the "Habitat Property") that was
previously sold by the CDC to Habitat.
B. The CDC purchased the Habitat Property from the previous owner utilizing HUD
HOME funds. HUD HOME funds are to be used solely for the construction, use and occupancy
of affordable housing in accordance with 24 Code of Federal Regulations Part 92. Owner and
the CDC are executing this Resale Restriction and causing it to be recorded against the
Restricted Unit in order to ensure compliance with the HUD HOME program, including without
limitation compliance with 24 Code of Federal Regulations Part 92.
C. The purpose of this Resale Restriction include, without limitation, to: (i) establish
resale and occupancy restrictions for the Restricted Unit; (ii) reserve to the CDC an option to
designate eligible purchasers, as hereafter defined, to acquire the Restricted Unit; (iii) to restrict
the Restricted Unit with this Resale Restriction for a period of forty-five (45) years, and (iv) to
grant to CDC an option to acquire the Restricted Unit in the event of a default by the Owner of
the terms of this Resale Restriction.
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D. Concurrently herewith Owner is executing a promissory note in favor of the CDC
("CDC Note"). The CDC Note and the Resale Restriction shall be secured by a deed of trust
("Deed of Trust") executed by Owner in favor of the CDC. The Deed of Trust shall be recorded
in the Office of the County Recorder of San Diego County against the Restricted Unit,
concurrently with recordation of this Resale Restriction.
NOW, THEREFORE, CDC and Owner hereby declare and restrict the Restricted Unit as
follows:
1. Representations and Warranties of Owner. Owner declares, represents and warrants to
the Commission and agrees as follows:
(a) Annual Gross Income. Owner's annual gross income, including the income of
any co -purchasers, at the time of the execution of this Resale Restriction does not exceed sixty
percent (60%) of the Area Median Income. "Area Median Income" means the lesser of: (i) the
median income for the San Diego metropolitan area, as adjusted for family size, as said median
income is determined by HUD; or (ii) the median income for the San Diego metropolitan area, as
adjusted for family size, as said median income is determined by the California Department of
Housing and Community Development.
(b) Principal Place of Residence. Owner will reside in the Restricted Unit as Owner's
principal place of residence until the earlier of: (i) the sale of the Restricted Unit in accordance
with the terms of this Resale Restriction; or (ii) forty-five (45) from the date this Resale
Restriction is recorded against the Restricted Unit. Owner shall be considered as occupying the
Restricted Unit as a principal place of residence if the Owner is living in the Restricted Unit for
at least ten (10) months out of each calendar year. Owner shall not to sublet, lease or rent out all
or any portion of the Restricted Unit during the term of this Resale Restriction.
(c) Liquid Assets. At the time of the execution of this Resale Restriction, Owner,
including any co -purchasers, does not hold, directly or indirectly, "liquid assets", as defined
below, whose aggregate value exceeds $10,000 for the first household member, plus $500 for
each additional household member. As used herein, the term "liquid assets" refers to cash and
assets which are readily convertible to cash within a reasonable period, including but not limited
to savings and checking accounts, certificates of deposit of any term, marketable securities,
money market and similar accounts, mutual fund shares, and insurance policy cash values. The
term "liquid assets" shall not include retirement funds which are not readily accessible or which
cannot be accessed by the buyer without the buyer incurring a penalty.
(d) Not a Full -Time Student. Owner is not, and none of the co -purchasers of Owner
is, a full-time student, or a household comprised exclusively of persons who are full-time
students, unless such persons are married and eligible to file a joint federal income tax return.
The term "full-time student" shall be defined as any person who will be or has been a full-time
student during five calendar months of the calendar year in question at an educational institution
(other than a correspondence school) with regular faculty and students.
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(e) Not a Student Dependent. Owner is not, and none of the co -purchasers or co-
tenants of Owner is, a student dependent as defined in the U.S. Internal Revenue Code, unless
the taxpayer (upon whom the student in question is dependent) resides in the Restricted Unit.
(f) Not an Owner of Real Property. Owner does not, and none of the co -purchasers
of Owner, own any real property at the time of escrow closing for the Restricted Unit.
(g) First -Time Home Buyer, Displaced Homemaker or Single Parent. Owner satisfies
at least one of the following criteria:
(1) Owner is a first-time home buyer; that is, he or she has not owned a home
within the three-year period immediately preceding the date of this Resale Restriction;
(2) Owner is a displaced homemaker; or
(3) Owner is a single parent.
2. Acknowledgment and Certification. Any purchaser of the Restricted Unit from Owner
and any subsequent purchaser from such purchaser or successors (hereinafter each is referred to
as "Purchaser") shall certify his/her acknowledgment receipt of this Resale Restriction and all
the provisions and restrictions contained herein, on a form approved by the CDC in its sole
discretion.
3. Restrictions on Transfer.
(a) Forty -Five Year Affordable Term. For a period of forty-five (45) years commencing
on the date this Resale Restriction is recorded in the Office of the County Recorder of San Diego
County against the Restricted Unit (the "Affordable Term"), any transfer of the Restricted Unit
shall be subject to the provisions of this Resale Restriction. Any subsequent transfer by a
Purchaser to a subsequent Purchaser shall also be subject to the provisions of this Resale
Restriction until the end of the Affordable Term.
(b) Transfer Defined. "Transfer" shall mean: (i) all or any part of the Restricted Unit or
any interest in the Restricted Unit is sold, conveyed or transferred; (ii) if Owner is not a natural
person and a beneficial interest in Owner is sold, conveyed or transferred; (iii) all or any part of
the Restricted Unit is refinanced or further encumbered, except as otherwise allowed by law; (iv)
Owner does not occupy the Restricted Unit as his, her, or their, primary residence; (v) the leasing
of all or any part of the Restricted Unit; (vi) any material breach of this Resale Restriction; or
(vii) the filing of bankruptcy by Owner. Notwithstanding the foregoing, a refinancing of the
Restricted Unit shall not be considered a Transfer, provided the CDC provides written consent to
Owner prior to the refinancing, which consent may be granted or withheld in the sole and
absolute discretion of the CDC. Transfer shall not include transfer to a spouse in a dissolution
proceeding, to a spouse who marries the Purchaser after the Purchaser has acquired title to the
Restricted Unit, or to a Purchaser who originally acquired title to the Restricted Unit as a co-
owner with a spouse, who acquires the deceased spouse's interest in the Restricted Unit, upon a
death of that spouse.
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4. Maintenance and Inspection of Restricted Unit. Purchaser shall maintain the Restricted
Unit and the improvements thereon in good condition and repair throughout the Purchaser's
period of ownership of the Restricted Unit. In addition, upon CDC's receipt of a notice of intent
to transfer as detailed in Section 5 below, CDC shall be given the right to enter and to inspect the
Restricted Unit to determine whether any violations of applicable building, plumbing, electric,
fire, housing or other applicable codes exist and whether the Restricted Unit has been maintained
in good condition, upon reasonable written notice of not less than ten (10) days. CDC shall
notify Purchaser with regard to any noted code violations and maintenance deficiencies
(collectively, the "Deficiencies"), and Purchaser shall cure the Deficiencies in a reasonable
manner acceptable to the CDC within sixty (60) days of being notified in writing of the result of
the inspections. Should the Purchaser fail to cure all the Deficiencies prior to the scheduled date
for the close of escrow, at the option of the CDC or an Eligible Purchaser as defined in Section 7
below, escrow may be closed, title passed and money paid to the Purchaser subject to the
condition that such funds as are necessary to pay for curing the Deficiencies, based upon written
estimates obtained by the CDC, shall be withheld from the money due the Purchaser and held by
the escrow holder for the purpose of curing the Deficiencies. The CDC and/or the Eligible
Purchaser shall cause the Deficiencies to be cured and, upon certification of completion of work
by the CDC, the escrow holder shall utilize such funds to pay for said work. Any remaining
funds shall be paid to the Purchaser.
5. Notice of Transfer. In the event the Purchaser intends to transfer the Restricted Unit, the
Purchaser shall promptly notify the CDC in writing of such intent ("Notice of Intent to
Transfer"), by certified mail return receipt requested, to the Community Development
Commission of the City of National City 1243 National City Blvd., National City, California
91950, or such other address as the CDC may designate. The Purchaser has the right to
withdraw the Notice of Intent to Transfer prior to the opening of escrow to purchase the
Restricted Unit.
6. CDC's Option to Designate an Eligible Purchaser. Upon receipt of the Notice of the
Intent to Transfer, the CDC shall have the option, but not the duty, to designate an Eligible
Purchaser to purchase the Restricted Unit in the manner set forth hereunder, if the proposed
transferee is not approved for any reason. Within thirty (30) days of receipt by the CDC of the
Notice of Intent to Transfer, the CDC shall: (1) notify the Purchaser of the Maximum Sales
Price, as defined in Section 8 herein, to be paid for the Restricted Unit; (2) inspect the Restricted
Unit as described in Section 4, above; and (3) notify the Purchaser regarding whether or not the
CDC intends to exercise its option to designate an alternate Eligible Purchaser. The notification
to the Purchaser regarding the option to designate an eligible Purchaser shall be sent by certified
mail return receipt requested. If the CDC exercises this option to designate a Purchaser, it shall
cause an escrow to purchase the Restricted Unit to be opened within thirty (30) days following
such notification to the Purchaser, and it shall cause the Restricted Unit to be purchased by its
designated Eligible Purchaser within the ninety (90) days following the receipt by the CDC of
the Purchaser's Notice of the Intent To Transfer.
7. Transfer to Eligible Purchaser. In the event the CDC does not exercise its option to
designate an Eligible Purchaser, the transfer of the Restricted Unit by the Purchaser must be to
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an Eligible Purchaser. An Eligible Purchaser shall be any household meeting the criteria set
forth in Section 1(a)-(g), above.
8. Determination of Maximum Sales Price.
(a) Calculation of Maximum Sales Price. The maximum amount of money and/or
other consideration, of any kind whatsoever, that the Owner (or any subsequent Purchaser selling
the Restricted Unit) may receive for any transfer of the Restricted Unit shall be called the
"Maximum Sales Price." Maximum Sales Price" shall mean the lesser of: (i) the sum of (A) the
purchase price which would result in a Monthly Housing Cost, as determined by the CDC, which
does not exceed the product of one twelfth (1/12) of thirty percent (30%) times sixty percent
(60%) of the then Area Median Income as adjusted for household size appropriate for the unit,
plus (B) the amount of the CDC Note; or (ii) the Single Family Mortgage Limit for the County of
San Diego under Section 203(b) of the National Housing Act (12 U.S.C. §1709(b)) or any other
limitation then provided by Code of Federal Regulations §92.254(a) or any successor law or
regulation. In the case where there is no Purchaser of the Restricted Unit, the CDC shall
calculate the principal and interest payments assuming a five (5%) percent down payment and
that the annual interest rate is the then Fannie Mae 90-day delivery rate.
(b) Monthly Housing Cost. "Monthly Housing Cost" shall mean all of the following
associated with the Restricted Unit, estimated or known as of the date of the close of escrow of
the sale of the Restricted Unit: (i) principal and interest payments on the 30 year, fixed-rate
mortgage loan actually obtained by the Purchaser, and any loan insurance fees associated
therewith; (ii) property taxes, assessments, including Mello Roos fees, if applicable; (iii) fire and
casualty insurance covering replacement value of property improvements (to the extent not
covered by the homeowner association encompassing the Site); (iv) any homeowner association
fees; (v) private mortgage insurance, if applicable; and (vi) reasonable costs of utilities. Monthly
Housing Cost shall be an average of estimated costs for the next twelve (12) month period as of
the date of the close of escrow of the sale of the Affordable Unit.
9. Defaults and Remedies.
(a) Acceleration, Remedies. Upon Owner (or any Purchaser's) breach of this Resale
Restriction, the CDC Note, the Deed of Trust or any other obligation or document secured by the
Restricted Unit, the CDC shall give notice to Owner (or the Purchaser, as applicable) prior to
acceleration, such notice shall include:
(1) a description of the breach;
(2) the action required to cure such breach (if any);
(3) a date, not less than ten (10) days from the date the notice is mailed to
Owner, by which such breach must be cured; and
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(4) a statement that failure to cure such breach on or before the date specified
in the notice may result in acceleration of the sums secured by the Deed of Trust and sale of the
Restricted.
The notice shall further inform Owner (or the Purchaser, as applicable) of the right to
reinstate after acceleration and the right to bring a court action to assert the nonexistence of a
default or any other defense of Owner to acceleration and sale. If the breach is not cured on or
before the date specified in the notice, CDC, at CDC's option, may declare all of the sums
secured by the Deed of Trust to be immediately due and payable without further demand and
may invoke the power of sale and any other remedies permitted by applicable law, as provided in
and pursuant to the procedure set forth in the Deed of Trust. CDC shall be entitled to collect all
reasonable costs and expenses incurred in pursuing the remedies provided in this Section 9,
including, but not limited to, reasonable attorneys' fees.
(b) Owner's Right to Reinstate.
(1) Curable Breach. Notwithstanding CDC's acceleration of the sums secured
by the Deed of Trust due to Owner or a Purchaser's breach, Owner or any Purchaser shall have
the right to have any proceedings begun by CDC to enforce the Deed of Trust discontinued at
any time prior to five (5) days before the sale of the Restricted Unit pursuant to the power of sale
contained in the Deed of Trust or at any time prior to entry of a judgment enforcing the Deed of
Trust if:
(A) Owner or Purchaser pays CDC all sums which would be then due
under the CDC Note and the Deed of Trust had no acceleration occurred;
(B) Owner or Purchaser cures all breaches of any other covenants or
agreements of Owner or Purchaser under this Resale Restriction and the Deed of Trust;
(C) Owner or Purchaser pays all reasonable expenses incurred by CDC
and the trustee in enforcing the covenants and agreements of Owner or Purchaser contained in
this Resale Restriction or the Deed of Trust, including, but not limited to, reasonable attorneys'
fees; and
(D) Owner or Purchaser takes such action as CDC may reasonably
require to assure that the lien of the Deed of Trust, CDC's interest in the Restricted Unit and
Owner's or Purchaser's obligation to pay the sums secured by the Deed of Trust shall continue
unimpaired.
Upon such payment and cure by Owner or Purchaser as set forth in this Section 9(b)(1),
this Resale Restriction, the Deed of Trust and the obligations secured hereby shall remain in full
force and effect as if no acceleration had occurred.
(2) Non -Curable Breach.
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(A) Failure to Occupy/Renting Out the Restricted Unit is a Violation of
Law. Owner and each Purchaser hereby acknowledges that the loan evidenced by the CDC Note
and secured by the Deed of Trust was funded by the CDC using U.S. Department of Housing and
Urban Development ("HUD") Home Investments Partnership Act ("HOME") funds. Section
215 of the HOME Investment Partnerships Act (42 U.S.C. § 12745) and the HOME program
regulations (24 C.F.R. §92.254) require Owner and each Purchaser to occupy the Restricted Unit
as their principal residence. Renting out the Restricted Unit and/or Owner or any Purchaser's
failure to occupy the Restricted Unit as their principal residence is a violation of State of
California and Federal law (in addition to being a violation of this Resale Restriction). CDC is
obligated by Federal law to enforce the provisions of the HOME program, CDC's failure to do
so would jeopardize CDC's ability to obtain additional HOME funds from HUD and help other
low-income families to obtain affordable housing.
(B) Failure to Occupy/Renting Out the Restricted Unit Materially
Impairs CDC's Security. Owner and each Purchaser hereby acknowledges and agrees that
renting out the Restricted Unit and/or Owner or any Purchaser's failure to occupy the Restricted
Unit as their principal residence, materially impairs CDC's security for the CDC Note and
CDC's ability to obtain additional HOME funds from HUD and help other low-income families
to obtain affordable housing. Owner and each Purchaser further acknowledges that if the
Restricted Unit is rented out and/or Owner or any Purchaser fails to occupy the Restricted Unit
as their principal residence, then during any such period the Restricted Unit will not qualify as
"affordable housing" and CDC may be in breach of its obligations to HUD and therefore the
CDC's security for the loan will be materially impaired.
(C) Failure to Occupy/Renting Out the Restricted Unit is a Non -
Curable Breach. Owner and each Purchaser hereby acknowledges and agrees that renting out the
Restricted Unit and/or Owner or any Purchaser's failure to occupy the Restricted Unit as their
principal residence, will be a non -curable breach and CDC shall have the right to accelerate the
loan and foreclose on the Restricted Unit as provided herein. Notwithstanding anything to the
contrary set forth in this Resale Restriction, Owner and each Purchaser agrees that in the
event Owner or any Purchaser rents out the Restricted Unit and/or fails to occupy the
Restricted Unit as their principal residence, neither Owner or any Purchaser shall have the
right to cure the breach and reinstate this Resale Restriction, the loan, the Deed of Trust or
the obligations secured thereby.
(D) Owner's Waiver. Owner and each Purchaser hereby knowingly
waives and relinquishes any and all legal and/or contractual rights Owner and any Purchaser may
have to cure or otherwise reinstate the Deed of Trust and the obligations secured thereby, in the
event the Restricted Unit is rented out and/or Owner or any Purchaser fails to occupy the
Restricted Unit as their principal residence.
(E) Representation of Comprehension. Owner and each Purchaser
hereby acknowledges and agrees that CDC has advised Owner and each Purchaser (and each of
them if there is more than one Owner or Purchaser) to retain an attorney to represent them with
respect to this Resale Restriction. By executing this Resale Restriction, Owner and each
Purchaser (and each of them if there is more than one Owner or Purchaser) represents that: (i)
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each of them fully understands and accepts the terms of this Resale Restriction, the CDC Note
and Deed of Trust; (ii) each of them has relied upon the legal advice of their attorneys or they
have freely and independently chosen not to seek the advice of an attorney; (iii) that neither the
CDC nor its attorneys represents them; (iv) each of them has had a full and ample opportunity to
consult with any other professionals of their choice in connection with the rights and liabilities
created by this Resale Restriction, the CDC Note and Deed of Trust; (v) that none of them has
any questions with regard to the legal import of any term, word, phrase, or portion of this Resale
Restriction, the CDC Note and Deed of Trust, or any of the foregoing documents in their
entireties; and (vi) each of them accepts the terms of this Resale Restriction, the CDC Note and
Deed of Trust as written.
10. CDC's Option to Purchase Upon Default. In addition to the remedies provided the CDC
in Section 9 above, the CDC has and is hereby granted the option ("Option") to purchase the
Restricted Unit effective upon the declaration of a written default by the CDC. The CDC's
option to purchase may be exercised upon a default under this Resale Restriction decision to
exercise its option to purchase the Restricted Unit on the following terms and conditions:
(a) Grant of Option. Owner and all subsequent Purchasers hereby grant to CDC an
option (the "Option") to purchase the Restricted Unit on the terms and conditions set forth
herein. The purchase price payable by the CDC to the Owner for the Restricted Unit (the
"Option Price") shall be the greater of (a) the Maximum Sales Price, as defined in Section 8
hereof, or (b) the sum of the current balance of the First Lien ("First Lien" means the lien of the
institution making the purchase money loan to the Owner for the purchase of the Restricted Unit
and/or any acceptable refinancings), plus the Owner's share of escrow, title and other closing
costs as set forth in Section 4 hereof. The Option created hereby shall be irrevocable by Owner
and shall be binding upon the successors and assigns of Owner. The CDC shall have the right of
specific performance to enforce the terms of this Option.
(b) Term and Consideration for Option. The term of the Option ("Option Term")
shall commence on the date of this Resale Restriction, and shall expire upon the expiration or
termination of the Affordable Term.
(c) Exercise of Option. The Option may be exercised by CDC's delivery to Owner of
written notice of such exercise (the "Exercise Notice") only upon the occurrence of an event of
default under the First Lien. In the event that the CDC exercises the Option, but the Owner cures
the default of the First Lien prior to the sale of the Restricted Unit to the CDC, the CDC's
exercise of the Option shall be deemed revoked. The revocation of the exercise of the Option
shall not terminate this Option Agreement or preclude the CDC from subsequently exercising the
Option upon a later event of default under the First Lien.
(d) Escrow and Completion of Sale. Within five (5) days after CDC has exercised
the Option, or as soon thereafter as reasonably practicable, an escrow shall be opened with an
escrow company mutually acceptable to CDC and Owner for the conveyance of the Restricted
Unit to the CDC. The CDC shall deposit the Option Price in escrow not later than one (1)
business day prior to the anticipated close of escrow date. The CDC's obligation to close escrow
shall be subject to the CDC's approval of a then -current preliminary title report and, at CDC's
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option, environmental and other site testing. Any exceptions shown on such preliminary title
report created on or after the Owner's acquisition of the Restricted Unit shall be removed by
Owner at its sole expense prior to the close of escrow pursuant to this Section 10(d) unless such
exception(s) is(are) accepted by CDC in its reasonable discretion; provided, however, that CDC
shall accept the following exceptions to title: (i) current taxes not yet delinquent, (ii) matters
affecting title existing on the date of Owner's acquisition of the Restricted Unit, (iii) liens and
encumbrances in favor of the City of National City, (iv) the First Lien (if the CDC is taking
subject to the First Lien), (v) this Resale Restriction, and (vi) matters shown as printed
exceptions in the standard form CLTA owner's policy of title insurance. The parties shall each
be responsible for one-half of the escrow fees, documentary transfer taxes, recording fees and
any other costs and expenses of the escrow, and the Owner shall be responsible for the cost of a
CLTA owner's policy of title insurance. CDC shall have thirty (30) days after exercise of the
Option to enter upon the Restricted Unit to conduct any tests, inspections, investigations, or
studies of the condition of the Restricted Unit. Owner shall permit the CDC access to the
Restricted Unit for such purposes. The CDC shall indemnify, defend, and hold harmless Owner
and its officers, directors, shareholders, partners, employees, agents, and representatives from
and against all claims, liabilities, or damages, and including expert witness fees and reasonable
attorney's fees and costs, caused by CDC's activities with respect to or arising out of such
testing, inspection, or investigatory activity on the Restricted Unit. Escrow shall close promptly
after acceptance by CDC of the condition of title and the physical and environmental condition
of the Restricted Unit, and in no event later than ninety (90) days after the date that the CDC has
exercised the Option. Until the Closing, the terms of the Restriction and the documents executed
and recorded pursuant thereto shall remain in full force and effect.
11. Non -liability of the CDC. In no event shall the CDC become in any way liable or
obligated to the Purchaser or to any successor -in -interest of the Purchaser by reason of its option
to purchase under either Section 6 or Section 10 herein nor shall the CDC be in any way
obligated or liable to the Purchaser or any successor -in -interest of the Purchaser for the CDC's
failure to exercise such option to purchase or to designate an Eligible Purchaser.
12. Binding on Successor and Assigns. This Resale Restriction shall bind, and the benefit
hereof shall inure to, the Owner, the Purchaser, and to their respective heirs, legal representative
executors, successors in interest and assigns, and to the CDC and its successors except as
provided in Section 3. Provided, however, upon a release of this Resale Restriction, either
through a foreclosure or the receipt of a deed in lieu of foreclosure by the holder of the First
Lien, this Resale Restriction, shall not thereafter reattach.
13. Subordination. This Resale Restriction is to be recorded in first lien priority position.
Notwithstanding the foregoing, this Resale Restriction may be recorded in second lien priority
position if the lender financing the Owner's purchase of the Restricted Unit will not allow its
deed of trust to be subordinate to the Resale Restriction.
14. Invalid Provisions. If any one or more of the provisions contained in this Resale
Restriction shall for any reason be held to be invalid, illegal or unenforceable in any respect then
such provision or provisions shall be deemed severable from the remaining provisions contained
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in this Resale Restriction, and this Resale Restriction shall be construed as if such invalid, illegal
or unenforceable provision had never been contained herein.
15. Controlling Law. The terms of this Resale Restriction shall be interpreted under the laws
of the State of California.
16. Notices. All notices required herein shall be sent to the CDC by certified mail return
receipt requested, as follows:
Community Development Commission of the City of National City
1243 National City Blvd.
National City, CA 91950
or such other address that the CDC may subsequently request in writing. Notices to the
Purchaser shall be sent by certified mail return receipt requested to the Restricted Unit address.
17. Interpretation of Restriction Covenants. The terms of this Resale Restriction shall be
interpreted to encourage to the extent possible that the Maximum Sales Price of and mortgage
payments for the Restricted Unit remain affordable to households earning sixty percent (60%) or
less of the area medium income as adjusted annually and as further adjusted for household size.
18. Non -Discrimination Covenants. The Owner 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, sexual orientation, marital status,
national origin, ancestry, familial status, source of income or disability in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Restricted Unit. The foregoing
covenants shall run with the land.
19. Promissory Note in Favor of CDC.
(a) Execution by Owner and Calculation of Principal Amount. During the
Affordability Period, Owner and each Purchaser shall be obligated to execute the CDC Note
which shall be in a form approved by the CDC in its sole discretion, to ensure the continued
affordability of the Restricted Unit. The principal of the CDC Note shall be an amount equal to
the difference between (i) (i) the Single Family Mortgage Limit for the County of San Diego
under Section 203(b) of the National Housing Act (12 U.S.C. §1709(b)) or any other limitation
then provided by Code of Federal Regulations §92.254(a) or any successor law or regulation;
less (ii) the Maximum Purchase Price. Such amount will not actually be paid by the CDC to the
Owner or Purchaser, but represents the subsidy constructively received by the Owner or
Purchaser as a result of purchasing the Restricted Unit at a price below its fair market value.
(b) CDC Note Secured by Deed of Trust. The Owner's payment obligations pursuant
to the CDC Note shall be secured by the Deed of Trust which shall be in a form approved by the
CDC in its sole discretion (the "Deed of Trust"), and which shall encumber the Restricted Unit in
second lien priority position.
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(c) Repayment of the CDC Note. No repayment of the CDC Note shall be due until
the earliest to occur of the following events, at which time the entire principal balance of the
CDC Note and unpaid and default interest thereon shall be due and payable, at the option of the
CDC: (i) a Transfer; (ii) Owner or any Purchaser's uncured default under the terms of this Resale
Restriction, the CDC Note or the Deed of Trust; or (ii) Owner or any Purchaser's default under
the terms of the First Lien. The Owner's obligation to repay the CDC Note may be assumed by a
subsequent purchaser of the Restricted Unit who acquires the Restricted Unit through a transfer
approved by the CDC. The original principal amount of the CDC Note shall be payable on the
forty-fifth (45th) anniversary of the date of the CDC Note, without interest, provided that the
Owner and its successors in interest to the Restricted Unit remain in compliance with the terms
of this Resale Restriction throughout the Affordability Period.
(d) Subordination of the Deed of Trust. The CDC shall execute such subordination
agreements subordinating the Deed of Trust securing the CDC Note as may be reasonably
requested by the holder of a First Lien. Any such subordination agreements shall be in a form
approved by the CDC in its reasonable discretion. This Resale Restriction will not be
subordinated.
20. Written Consent of CDC Required Before Transfer. During the Affordability Period, the
Restricted Unit, and any interest therein, shall not be conveyed by any Transfer or refinancing,
except as expressly provided in this Resale Restriction, except with the express written consent
of the CDC.
21. Attorneys' Fees. The parties agree that the prevailing party in litigation for the breach
and/or interpretation and/or enforcement of the terms of this Resale Restriction shall be entitled
to their expert witness fees, if any, as part of their costs of suit, and reasonable attorneys' fees as
may be awarded by the court, pursuant to California Code of Civil Procedure ("CCP") Section
1033.5 and any other applicable provisions of California law, including, without limitation, the
provisions of CCP Section 998
22. Monitoring. The Owner shall annually report to the CDC, in writing, confirming that
they continue to reside in the Restricted Unit, have not leased or rented the Restricted Unit for
more than the allowed, period of time, providing evidence of insurance, evidence of the payment
of taxes, if not impounded, and any and all other information reasonably needed by the CDC to
assure compliance with the terms of the Restriction on a form or forms prepared by the CDC.
Within 15 days of a written request from the CDC to the Owner, Owner shall respond with all
information requested to all the CDC complete its monitoring responsibilities under the terms of
the Restriction. Failure to completely and timely comply with requests shall be deemed a
material default under the terms of the Restriction.
IN WITNESS WHEREOF, the parties have executed this Resale Restriction on or as of
the date first written above.
CDC:
Community Development Commission of the City of National City
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By:
Print Name:
Its:
OWNER:
Print Name: Print Name:
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ACKNOWLEDGMENT
State of California
County of San Diego
On , 200 before me,
personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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ACKNOWLEDGMENT
State of California
County of San Diego
On , 200 before me,
personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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ACKNOWLEDGMENT
State of California
County of San Diego
On , 200 before me,
personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT "A"
Restricted Unit Legal Description
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Attachment No. 11
Agreement Affecting Real Property
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Files\OLKl9F\DDA v2 doc
Recording Requested By:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
And When Recorded Mail To:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
This document is exempt from the payment of a recording fee pursuant to Government Code Section
6103.
AGREEMENT AFFECTING REAL PROPERTY
(1441 Harding Avenue)
THIS AGREEMENT AFFECTING REAL PROPERTY is made this day of
, 2009, between San Diego Habitat for Humanity, Inc., a California nonprofit
corporation ("Developer"), and the Community Development Commission of the City of National
City ("CDC").
A. Developer is the owner of that certain real property located in the City of National
City, County of San Diego, State of California, described in Exhibit "A" attached hereto and made a
part hereof (referred to herein as the "Property").
B. Developer has acquired the Property from the CDC pursuant to that certain
Development and Disposition Agreement dated , 2009 ("DDA"), in furtherance of the
Redevelopment Plan for the National City Redevelopment Project ("Redevelopment Plan"), adopted
by Community Development Commission of the City of National City on July 18, 1995. One of the
components of the Redevelopment Plan for the National City Redevelopment Project, adopted by
Community Development Commission of the City of National City on July 18, 1995, is to provide
affordable housing opportunities for households earning one eighty percent (80%) or less of the area
medium income, adjusted for family size and revised annually by the U.S. Department of Housing
and Urban Development for the San Diego Metropolitan Statistical Area.
C. In order to further assist in the development of below market rate affordable housing,
the CDC and Owner have agreed to enter into this Agreement Affecting Real Property to be
covenants, conditions and restrictions and equitable servitudes running with the land with respect to
the Property.
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NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, CDC and Developer hereby agree and declare as follows and each subsequent owner
of the Property and their successors are deemed to covenant and agree, that the Property shall be
held, sold and conveyed subject to the following covenants and conditions which shall run with the
land and be binding on all parties having any right, title or interest in the Property, their respective
heirs, legatees, devisees, administrators, executors, successors and assigns, and shall inure to the
benefit of the CDC, its successors and assigns:
1. Construction of Affordable Units. Under the terms of the DDA, Developer is obligated to
construct on the Property a total of three (3) for -sale, single family homes (the "Affordable Units"),
as set forth in more detail therein. No other dwelling units will be constructed on the Property.
2. Definitions. The following terms shall have the following meanings:
(a) Area Median Income. "Area Median Income" shall mean the area median income
defined by the Department of Housing and Urban Development (HUD) as the then current area
median income for the San Diego Standard Metropolitan Statistical Area, established periodically by
HUD and published in the Federal Register, as adjusted for family size. In the event HUD ceases to
publish an established area median income as aforesaid, CDC may, in its sole discretion, use any
other reasonably comparable method of computing area median income.
(b) Low Income Household. "Low Income Household" means persons and families
whose income does not exceed sixty percent (60%) of the then current Area Median Income,
provided that such persons or families meet the additional requirements set forth in Section 4 of this
Agreement Affecting Real Property.
(c) Maximum Sales Price. "Maximum Sales Price" shall mean the maximum amount of
consideration, of any kind whatsoever, that the Developer may receive for any Affordable Unit,
which amount shall not exceed the lesser of: (i) the sum of (A) the purchase price which would result
in a Monthly Housing Cost, as determined by the CDC, which does not exceed the product of one
twelfth (1/12) of thirty percent (30%) times sixty percent (60%) of the then Area Median Income as
adjusted for household size appropriate for the unit, plus (B) the amount of the Developer Note
assumed by the Low Income Household that purchases such Affordable Unit; or (ii) the Single
Family Mortgage Limit for the County of San Diego under Section 203(b) of the National Housing
Act (12 U.S.C. §1709(b)) or any other limitation then provided by Code of Federal Regulations
§92.254(a) or any successor law or regulation.
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3. Covenants Concerning Sales of Affordable Units and HUD HOME Program. Developer
represents and warrants to the CDC that Developer shall sell the three (3) Affordable Units (all of the
units at the Property) only to Low Income Households for an amount that does not exceed the
Maximum Sales Price and that future sales of the Affordable Units for a period of 45 years shall be
only to Low Income Households for an amount that does not exceed the Maximum Sales Price. The
Affordable Units will be restricted for twenty (20) years from initial occupancy under the HUD
HOME Program, Redevelopment Plan and the California Community Redevelopment Law. In the
event of conflict during such 20 year period between the statutes, provisions or regulations of the
HUD HOME Program, Redevelopment Plan or the California Community Redevelopment Law, the
HUD HOME Program shall apply. Thereafter, the Affordable Units will be restricted for the
remainder of the term under the Redevelopment Plan and the California Community Redevelopment
Law. Developer shall comply with all regulations, policies and procedures promulgated by HUD, or
the CDC in connection with the HOME Program, including without limitation all applicable
provisions of 24 CFR Part 92. Developer's failure to so comply shall constitute a material default
hereunder.
4. Additional Definition of Low Income Households.
(a) No Relationship With Developer. The term Low Income Household shall not include
any person employed by Developer, or any individuals who are members, principals, officers,
directors, partners, employees, agents or shareholders of Developer, or any entity having an
ownership interest in the Property or in any Affordable Unit.
(b) No Full -Time Students. The term Low Income Household shall not include any
person who is a full-time student, or a household comprised exclusively of persons who are full-time
students, unless such persons are married and eligible to file a joint federal income tax return. The
term "full-time student" shall be defined as any person who will be or has been a full-time student
during five calendar months of the calendar year in question at an educational institution (other than
a correspondence school) with regular faculty and students.
(c) No Student Dependents. Notwithstanding the provisions of subparagraph 4(b), the
term Low Income Household shall not include any student dependent as defined in the U.S. Internal
Revenue Code, unless the taxpayer (upon whom the student in question is dependent) will reside in
the same Affordable Unit.
(d) No Owners of Real Property. The term Low Income Household shall not include any
person or any household comprised of one or more persons who own real property.
(e) Liquid Asset Limitation. The term Low Income Household shall not include any
person or household holding, directly or indirectly, liquid assets whose aggregate value exceeds, at
the time of determination of eligibility, one hundred percent (100%) of the then -current annual Area
Median Income. As used herein, the term "liquid assets" refers to cash and assets which are readily
convertible to cash within a reasonable period, including but not limited to savings and checking
accounts, certificates of deposit of any term, marketable securities, money market and similar
accounts, mutual fund shares, and insurance policy cash values. The term "liquid assets" shall not
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include retirement funds which are not readily accessible or which cannot be accessed by the buyer
without the buyer incurring a penalty.
(f) Income of Co -Purchasers. The income of all co -purchasers and/or occupants shall be
taken into account in determining whether a household is a Low Income Household.
(g) Principal Place of Residence. A purchaser of an Affordable Unit shall not qualify as a
Low Income Household, unless that purchaser agrees to reside in the Affordable Unit as such
purchaser's principal place of residence during the entire period that the Affordable Unit is owned by
such purchaser.
5. Release and Termination. The CDC shall partially release and terminate this Agreement
Affecting Real Property, with respect to each Affordable Unit, upon the last to occur of: (i) the sale
of the Affordable Unit; (ii) the Low -Income Household's execution of the First -Time Homebuyer
Note, as defined in the DDA; (iii) the recordation against the individual Affordable Unit of the
Resale Restriction, as defined in the DDA; and (iv) the recordation against the individual Affordable
Unit of the deed of trust securing the First -Time Homebuyer Note and the Resale Restriction.
6. Foreclosure by Court Action. The CDC may in its sole and absolute discretion foreclose the
lien created hereby by foreclosing on the Deed of Trust securing this Agreement Affecting Real
Property or by court action in the manner provided by the laws then applicable to this Agreement
Affecting Real Property, in either case the Developer agrees to pay all costs and expenses thereof,
including reasonable attorneys' fees as the court may determine.
7. Notices. Any notice, demand, request or other communication which any party hereto may
be required or may desire to give hereunder shall be in writing and will be effectively served upon
personal delivery or, if mailed, no later than 48 hours after deposit in first class or certified United
States mail, postage prepaid, sent to:
To CDC:
To Developer:
Community Development Commission of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
San Diego Habitat for Humanity, Inc.
10222 San Diego Mission Road
San Diego, CA 92108
which addresses may be changed by written notice.
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8. Standing, Equitable Remedies; Cumulative Remedies. Developer expressly agrees and
declares that the CDC or its successors shall be the proper party and shall have standing to initiate
and pursue any and all actions or proceedings, at law or in equity, to enforce the provisions hereof
and/or to recover damages for any default hereunder, notwithstanding the fact that such damages or
the detriment arising from such a default may have actually been suffered by some other person or by
the public at large. Further, Developer expressly agrees that receivership, injunctive relief and
specific performance are proper pre-trial and/or post -trial remedies hereunder, and that, upon any
default, and to assure compliance with this Agreement Affecting Real Property. Nothing in this
paragraph, and no recovery to the CDC, shall restrict or limit the rights or remedies of persons or
entities other than the CDC, against Developer in connection with the same or related acts by
Developer, the Property or this Agreement Affecting Real Property.
9. General Provisions.
(a) Integration. The undersigned, and each of them, acknowledge and represent that no
promise or inducement not expressed in this Agreement Affecting Real Property has been made in
connection with this Agreement Affecting Real Property. This Agreement Affecting Real Property
contains the entire agreement and understanding between the parties as to its subject matter.
(b) Waiver and Amendment. No provision ofthis Agreement Affecting Real Property, or
breach of any provision, can be waived except in writing. Waiver of any provision or breach shall
not be deemed to be a waiver of any other provision, or of any subsequent breach of the same or
other provision. Except as otherwise provided herein, this Agreement Affecting Real Property may
be amended, modified or rescinded only in writing signed by Developer and the CDC.
(c) Time of Essence. Time is expressly declared to be of the essence in this Agreement
Affecting Real Property, and of every provision in which time is an element.
(d) Captions. Paragraph titles and captions contained in this Agreement Affecting Real
Property are inserted as a matter of convenience and for reference, and are not a substantive part of
this Agreement Affecting Real Property.
(e) Further Assurances. The parties each agree to sign any additional documents, which
are reasonably necessary to carry out this Agreement Affecting Real Property or to accomplish its
intent.
(f) Benefit and Burden. This Agreement Affecting Real Property shall be binding upon
and inure to the benefit of the parties and their respective heirs, representatives, successors and
assigns. This Agreement Affecting Real Property is not intended to benefit any person other than the
parties hereto.
(g) Governing Law. This Agreement Affecting Real Property has been entered into in the
State of California, and shall be interpreted and enforced under California law.
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(h) Attorneys' Fees. The prevailing party in any action, including, but not limited to,
arbitration, a petition for writ of mandate, and/or an action for declaratory relief, brought to enforce,
interpret or reform the provisions of this Agreement Affecting Real Property shall be entitled to
reasonable attorneys' fees and costs (including, but not limited to, experts' fees and costs and
trustee's fees, and including "costs" regardless of whether recoverable as such under statute) incurred
in such action.
(i) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement
Affecting Real Property are hereby incorporated in this Agreement Affecting Real Property by this
reference, regardless of whether or not the exhibits are actually attached to this Agreement Affecting
Real Property. The Recitals to this Agreement Affecting Real Property are hereby incorporated in
this Agreement Affecting Real Property by this reference.
(j) Signatures. This Agreement Affecting Real Property may be signed in counterparts.
All individuals signing this Agreement Affecting Real Property for a party which is a corporation,
limited liability company, partnership or other legal entity, or signing under a power of attorney, or
as a trustee, guardian, conservator, or in any other legal capacity, covenant to the CDC that they have
the necessary capacity and authority to act for, sign and bind the respective entity or principal on
whose behalf they are signing.
CDC:
Community Development Commission of the City of National City
By:
Print Name:
Its:
APPROVED AS TO FORM:
Walter F. Spath III
Special Counsel to CDC
DEVELOPER:
San Diego Habitat for Humanity, Inc., a California nonprofit corporation
By:
Print Name:
Its:
By:
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Print Name:
Its:
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ACKNOWLEDGMENT
State of California )
County of San Diego )
On , 200 before me,
personally appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
ACKNOWLEDGMENT
State of California )
County of San Diego )
On , 200 before me,
personally appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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ACKNOWLEDGMENT
State of California )
County of San Diego )
On , 200 before me,
personally appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
9
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Exhibit "A"
Legal Description
All that certain real property situated in the City of National City, County of San Diego, State of
California, described as follows:
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Attachment No. 12
Environmental Indemnity
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UNSECURED ENVIRONMENTAL INDEMNITY AGREEMENT
(1441 Harding Avenue)
THIS UNSECURED ENVIRONMENTAL INDEMNITY AGREEMENT ("Indemnity")
is dated as of this day of , 2009, by San Diego Habitat for Humanity, Inc., a
California nonprofit corporation ("Indemnitor"), to and for the benefit of the Community
Development Commission of the City of National City ("CDC"), its successors and assigns and, to
the extent not otherwise referenced, the Indemnified Parties (as hereinafter defined).
RECITALS
A. CDC has agreed to make a loan ("Loan") to Indemnitor as described in that certain
Development and Disposition Agreement between CDC and Indemnitor, dated as of
2009 ("DDA") and that certain Note Secured by Deed of Trust made by Indemnitor in favor of CDC,
dated as of , 2009 ("Promissory Note"), which Loan is secured by, among other things,
a Deed of Trust executed by Indemnitor in favor of CDC ("Deed of Trust"). The Deed of Trust
encumbers the real property described on Exhibit A attached hereto (the "Property").
B. It is a condition of CDC's making the Loan that this Indemnity be executed and
delivered by Indemnitor. CDC is making the Loan in reliance upon this Indemnity.
C. This Indemnity is unsecured and is separate from the security and other collateral
being delivered by Indemnitor in connection with the making of the Loan.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of CDC making the Loan, and
other valuable consideration, the receipt of which is hereby acknowledged, Indemnitor agrees as
follows:
1. Indemnity.
(a) Subject to Sections 2, 3 and 4 below, Indemnitor hereby agrees to defend, protect,
indemnify and hold harmless CDC, CDC's affiliates, directors, officers, shareholders, agents and
employees, and CDC's participants, successors and assigns specified in Section 4 hereof (hereinafter,
collectively, the "Indemnified Parties"), from and against, and shall reimburse the Indemnified
Parties for, any and all actual out-of-pocket costs (including, without limitation, attorneys' fees,
expenses and court costs), expenses or losses arising from any claim, liability, damage, injunctive
relief, injury to person, property or natural resources, fine, penalty, action or cause of action
(collectively, "Costs and Liabilities"), incurred by or asserted against any Indemnified Party and
arising directly or indirectly, in whole or in part, out of the release, discharge, deposit or presence, or
alleged or suspected release, discharge, deposit or presence, of any Hazardous Materials at, on,
within, under, about or from the Property, or in or adjacent to any part of the Property, or in the soil,
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groundwater or soil vapor on or under the Property, or elsewhere in connection with the
transportation of Hazardous Materials to or from the Property in violation of any Hazardous
Materials Laws, whether or not known to Indemnitor or Indemnified Parties, whether foreseeable or
unforeseeable, regardless of the source of such release, discharge, deposit or presence or, except as
expressly provided to the contrary in Sections 2 and 4 hereof, regardless of when such release,
discharge, deposit or presence occurred or is discovered. Without limiting the generality of the
foregoing indemnity, such Costs and Liabilities shall include, without limitation, all actual out-of-
pocket costs incurred by Indemnified Parties in connection with (i) determining whether the Property
is in compliance with this Indemnity and with all applicable Hazardous Materials Laws or the
amount of money required to remediate any environmental contamination, and causing the Property
to be or become in compliance, with all applicable Hazardous Materials Laws, (ii) any removal or
remediation of any kind and disposal of any Hazardous Materials present at, on, under or within the
Property or released from the Property to the extent required by applicable Hazardous Materials
Laws in effect at the time of such removal, remediation or disposal, and (iii) repair of any damage to
the Property or any other property caused by any removal, remediation or disposal.
(b) Upon demand by any Indemnified Party, Indemnitor shall defend any investigation,
action or proceeding in connection with any claim or liability, or alleged claim or liability, that
would, if determined adversely to such Indemnified Party, be covered by the foregoing
indemnification provisions, such defense to be at Indemnitor's sole cost and expense and by counsel
reasonably approved by such Indemnified Party, which counsel may, without limiting the rights of an
Indemnified Party pursuant to the next succeeding sentence of this Section 1(b), also represent
Indemnitor in such investigation, action or proceeding. If any Indemnified Party determines
reasonably and in good faith that its defense by Indemnitor is being conducted in a manner which is
prejudicial to its interests, such Indemnified Party may elect to conduct its own defense through
counsel of its own choosing and at the expense of Indemnitor.
(c) As used herein, the term "Hazardous Materials" means and includes any flammable,
explosive, or radioactive materials or hazardous, toxic or dangerous wastes, substances or related
materials or any other chemicals, materials or substances, exposure to which is prohibited, limited or
regulated by any federal, state, county, regional or local authority or which, even if not so regulated,
may or could pose a hazard to the health and safety of the occupants of the Property or of property
adjacent to the Property, including, but not limited to, asbestos, PCBs, petroleum products and
byproducts, substances defined or listed as "hazardous substances" or "toxic substances" or similarly
identified in, pursuant to, or for purposes of, the California Solid Waste Management, Resource
Recovery and Recycling Act (California Government Code §66700 et seq.), the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended (42 U.S.C. §9601, et seq.),
the Hazardous Materials Transportation Act (49 U.S.C. §1801, et seq.), the Resource Conservation
and Recovery Act (42 U.S.C. §6901, et seq.), Section 25117 or Section 25316 of the California
Health & Safety Code; and any so-called "Superfund" or "Superlien" law, or any other federal, state
or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or
imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste,
substance or material; or any substances or mixture regulated under the Toxic Substance Control Act
of 1976, as now or hereafter amended (15 U.S.C. §2601 et seq.); and any "toxic pollutant" under the
Clean Water Act, as now or hereafter amended (33 U.S.C. §1251 et seq.); and any hazardous air
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pollutant under the Clean Air Act, as now or hereafter amended (42 U.S.C. §7901 et seq.).
Notwithstanding the above, the term "Hazardous Materials" shall not include small amounts of
chemicals, cleaning agents and the like commonly employed in routine household uses in a manner
typical of occupants in other similar residential properties provided they are used in compliance with
applicable laws. The term "Hazardous Materials Laws" means any federal, state or local law, code,
statute, ordinance, rule, regulation, rule of common law or guideline relating to Hazardous Materials
now or hereafter enacted or promulgated (collectively, and including, without limitation, any such
laws which require notice of the use, presence, storage, generation, disposal or release of any
Hazardous Materials to be provided to any party).
2. Time Limits on Claims. Notwithstanding the foregoing provisions:
(a) No claim shall be made hereunder by any Indemnified Party unless and until any one
of the following events shall have occurred: (i) repayment in full of the Loan (as evidenced by the
release and reconveyance of the Deed of Trust); or (ii) vesting of title to the Property in CDC or any
Indemnified Party through judicial or non judicial foreclosure or acceptance of a deed in lieu thereof.
(b) Indemnitor shall not have any obligation under this Indemnity to an Indemnified Party
with respect to any Costs and Liabilities that, prior to the first to occur of the events described in
Section 2(a)(i) or (ii) above: (i) were actually known to CDC; (ii) were liquidated in amount, or were
otherwise readily determinable in amount without undue delay; and (iii) would have been lawfully
and properly includable as part of the secured indebtedness under the Deed of Trust in an action for a
deficiency judgment following a judicial foreclosure sale of the Property.
(c) If any Indemnified Party or any affiliate of any Indemnified Party has acquired
ownership of the Property through foreclosure or deed in lieu of foreclosure, the obligations of
Indemnitor hereunder shall apply, without limitation, to all Costs and Liabilities that arise out of or
are attributable to, whether directly or indirectly, ownership of the Property or any part thereof by any
Indemnified Party or any such affiliate, or to the position of such Indemnified Party or such affiliate
as an owner in the chain of title to the Property or any part thereof.
(d) If the Loan has been repaid in full, whether by voluntary payment or by foreclosure or
deed in lieu of foreclosure, the obligations of Indemnitor hereunder shall continue to apply, without
limitation, to all Costs and Liabilities that arise out of or are attributable to, whether directly or
indirectly, any claim or allegation against an Indemnified Party relating to any act or omission of
such Indemnified Party in respect of the Loan or the Property, or in connection with any exercise of
such Indemnified Party's rights under any of the Loan Documents.
3. Acts of Indemnified Parties.
(a) Notwithstanding anything to the contrary herein, Indenmitor shall not be liable
hereunder to an Indemnified Party to the extent of that portion of any Costs and Liabilities which
Indemnitor establishes is attributable to an affirmative act of such Indemnified Party, its agent or any
successor in interest of an Indemnified Party at the Property which causes (i) the release, discharge,
deposit or presence, or alleged or suspected release, discharge, deposit or presence of a Hazardous
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Material at the Property, or (ii) material aggravation of a then existing Hazardous Material condition
or occurrence at the Property, if and only if, in either such case referred to in (i) or (ii) above, such
act was in violation of any Hazardous Materials Laws or was carried out without reasonable care
under the circumstances.
(b) In addition, Indemnitor shall not be liable hereunder for that portion of any Costs and
Liabilities which Indemnitor establishes is attributable to the introduction and initial release,
discharge or deposit, or alleged or suspected introduction, initial release, discharge or deposit of a
Hazardous Material at the Property by any party, other than Indemnitor or an affiliate of Indemnitor,
at any time after Indemnitor's ownership interest in the Property terminates. Notwithstanding the
foregoing, but subject to Sections 2 and 3(a) above and Section 4 below, the liability of Indemnitor
hereunder shall otherwise remain in full force and effect after CDC or such affiliate of CDC so
acquires title to the Property, including without limitation with respect to any Hazardous Materials
which are discovered at the Property after the date CDC or such affiliate of CDC acquires title but
which were actually introduced to the Property prior to the date of such acquisition.
4. Indemnified Parties. This Indemnity and Indemnitor's obligations hereunder shall inure to
the benefit of and be enforceable only by (a) CDC, CDC's directors, officers, shareholders, agents
and employees, (b) any person or entities to which any CDC participates, assigns or sells all or any
portion of its interest in the Loan, or which otherwise succeeds to the interest of CDC under the Deed
of Trust, whether by purchase or otherwise, and (c) any affiliate of CDC which acquires title to the
Property at a foreclosure sale or by deed in lieu of foreclosure.
5. Unsecured Obligations. The obligations of Indemnitor hereunder are unsecured. This
Indemnity is not intended to be, nor shall it be, secured by the Deed of Trust or any other instrument
or agreement executed by Indemnitor or any other entity or person in favor of CDC or any Indem-
nified Party relating to the Loan (except for any guaranty) (such documents together with the Deed of
Trust being referred to collectively herein as the "Loan Documents"). The obligations of Indemnitor
under this Indemnity are independent of any indemnification or other obligations of Indemnitor
under the Loan Documents with respect to any Hazardous Materials. The rights and remedies of the
Indemnified Parties under this Indemnity shall be in addition to any other rights and remedies of such
Indemnified Parties under the Loan Documents. In no event shall any provision of this Indemnity be
deemed to be waiver of or to be in lieu of any right or claim, including without limitation any right of
contribution or other right of recovery, that any person entitled to enforce this Indemnity might
otherwise have against Indemnitor under any Hazardous Materials Laws. Any sums payable
hereunder shall not be deemed to be based upon any diminution in or other impairment of the value
of any collateral held by CDC to secure the Loan.
6. Interest on Unpaid Amounts. Any amount claimed hereunder by an Indemnified Party not
paid by Indemnitor within thirty (30) days after written demand made by such Indemnified Party and
accompanied by a reasonable summary of the amounts claimed, shall bear interest at the rate of ten
percent (10%) per annum or the highest interest rate permitted by law, whichever is less.
7. Limitations on Liability. The liability of Indemnitor under this Indemnity shall in no way be
limited or impaired by (a) any amendment or modification of the provisions of any of the Loan
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Documents; (b) except as set forth in Sections 2, 3 and 4, any participation in or sale or assignment
of the Loan Documents or any sale or transfer of all or part of the Property; (c) the release of
Indemnitor or any person or entity from performance or observance of any of the agreements,
covenants, terms, or conditions contained in any of the Loan Documents by operation of law; and, in
any such case, whether with or without notice to Indemnitor and with or without consideration.
Except as provided in Sections 2, 3 and 4, Indemnitor's obligations hereunder shall in no way be
impaired, reduced or released by reason of (i) an Indemnified Party's omission or delay in exercising
any right described herein or (ii) any act or omission of an Indemnified Party in connection with any
notice, demand, warning, or claim regarding violations of codes, laws or ordinances governing the
Property.
8. Recourse Obligations. Notwithstanding anything to the contrary in the Loan Documents,
Indemnitor shall be personally liable on a recourse basis for the obligations of Indemnitor set forth
herein.
9. Successors and Assigns. This Indemnity shall be continuing, irrevocable and binding upon
each of the persons and entities comprising Indemnitor and their respective heirs, successors, and
assigns.
10. Inconsistencies. In the event of any inconsistencies or conflicts between the terms of this
Indemnity and the terms of the other Loan Documents (including any exculpatory language
contained therein), the terms of this Indemnity shall control.
11. Separate Causes of Action. A separate right of action hereunder shall arise each time an
Indemnified Party acquires knowledge of any matter described herein. Separate and successive
actions maybe brought hereunder to enforce any of the provisions hereof at any time and from time
to time. No action hereunder shall preclude any subsequent action.
12. Severability. If any provision of this Indemnity shall be determined to be unenforceable in
any circumstances by a court of competent jurisdiction, then the balance of this Indemnity never-
theless shall be enforceable, and the subject provision shall be enforceable in all other circumstances.
13. Attorneys' Fees. In any action or proceeding brought by the Indemnified Parties to enforce
any rights under this Indemnity, the prevailing party shall be entitled to all reasonable attorneys' fees
and all costs, expenses and disbursements in connection with such action.
14. Notices. Any notice, demand, request or other communication which any party hereto may
be required or may desire to give hereunder shall be in writing and will be effectively served upon
personal delivery or, if mailed, no later than 48 hours after deposit in first class or certified United
States mail, postage prepaid, sent to:
To CDC:
Community Development Commission of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
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To Developer:
San Diego Habitat for Humanity, Inc.
10222 San Diego Mission Road
San Diego, CA 92108
which addresses may be changed by written notice.
15. Governing Law. This Indemnity shall be governed by and construed in accordance with the
laws of the State of California.
16. Counterparts. This Indemnity may be executed in any number of counterparts and, as so
executed, the counterparts shall constitute one and the same agreement. The parties agree that each
such counterpart is an original and shall be binding upon all the parties, even though all of the parties
are not signatories to the same counterpart.
17. Exhibits and Recitals Incorporated. All exhibits referred to in this Indemnity, if any, are
hereby incorporated in this Indemnity by this reference, regardless of whether or not the exhibits are
actually attached to this Indemnity. The Recitals to this Indemnity are hereby incorporated in this
Indemnity by this reference.
18. Signature Authority. All individuals signing this Indemnity for a party which is a
corporation, limited liability company, partnership or other legal entity, or signing under a power of
attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the CDC
that they have the necessary capacity and authority to act for, sign and bind the respective entity or
principal on whose behalf they are signing.
IN WITNESS WHEREOF, this Indemnity is executed as of the day and year above written.
CDC:
Community Development Commission of the City of National City
By:
Print Name:
Its:
APPROVED AS TO FORM:
Walter F. Spath Ill
Special Counsel to CDC
DEVELOPER:
San Diego Habitat for Humanity, Inc., a California nonprofit corporation
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By:
Print Name:
Its:
By:
Print Name:
Its:
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Exhibit "A"
Legal Description
All that certain real property situated in the City of National City, County of San Diego, State of
California, described as follows:
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Attachment No. 13
Notice of Affordability Restrictions
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Files\OLKI9F\DDA v2 doc
Recording Requested By:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
And When Recorded Mail To:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
This document is exempt from the payment of a recording fee pursuant to Government Code Section
6103.
NOTICE OF AFFORDABILITY RESTRICTIONS
ON TRANSFER OF PROPERTY
(HEALTH AND SAFETY CODE §33334.3(f)(3)(B))
(1441 Harding Avenue)
NOTICE IS HEREBY PROVIDED AS FOLLOWS:
1. Diego Habitat for Humanity, Inc., a California nonprofit corporation
("Habitat"), is the owner of that certain real property located in the City of National
City, California, more particularly described in the attached Exhibit "A" ("Property").
2. The Community Development Commission of the City of National City
("CDC") is providing partial financing for the Property with moneys from its Low and
Moderate Income Housing Fund.
3. Concurrently herewith Habitat and the CDC are causing the Property to
be encumbered by that certain AGREEMENT AFFECTING REAL PROPERTY
("Restrictions"), which generally restrict the sale and occupancy of three (3) single
family homes at the Property to persons at or below 60% of AMI, as set forth in more
detail therein.
4. The Restrictions expire forty-five (45) years from completion of
construction of the Affordable Units as set forth in the Restrictions.
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5. The Property is generally located at 1441 Harding Avenue, National City,
California.
6. The Property assessor's parcel number is
7. In the event of any conflict between one or more provisions of this
document and one or more provisions of the Restrictions, the provisions of the
Restrictions shall apply.
HABITAT:
San Diego Habitat for Humanity, Inc., a California nonprofit corporation
By:
Print Name:
Its:
By:
Print Name:
Its:
CDC:
Community Development Commission of the City of National City
By:
Print Name:
Its:
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ACKNOWLEDGMENT
State of California )
County of San Diego )
On , 2009, before me, personally appeared,
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 on behalf of which the person(s) acted,
executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
ACKNOWLEDGMENT
State of California
County of San Diego )
On , 2009, before me, personally appeared,
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 on behalf of which the person(s) acted,
executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
3
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ACKNOWLEDGMENT
State of California )
County of San Diego )
On , 2009, before me, personally appeared,
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 on behalf of which the person(s) acted,
executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
4
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Exhibit "A"
Property Description
The land referred to is situated in the City of National City, County of San Diego, State
of California, described as follows:
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RECORDING REQUESTED BY
STEWART TITLE OF CALIFORNIA
Recording Requested By:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
And When Recorded Mail To:
Community Development Commission
of the City of National City b
1243 National City Boulevard k(
National City, CA 91950-4397 lh�
m
III III II I IIIII IIIII IIII II II IIIII II II II IIIII IIIII
MAY 29, 2009 2:59 PM
OFFICIAL RECORDS
SAN [IEGO COUNTY RECORDER'S OFFICE
Di VID L. BUTLER. COUNTY RECORDER
FEES: J.UU
DA:
PAGES:
II
III
10
1111II IIIII IIIII IIIII II11I III11IIIII IIIII IIIII IIIII IIIII IIIII1III01II IIII IIII
This document is exempt from the payment of a recording fee pursuant to Government Code Section
6103.
DEED OF TRUST
(1441 Harding Avenue)
THIS DEED OF TRUST is made this 28th day of April, 2009, between San Diego Habitat
for Humanity, Inc., a California nonprofit corporation, whose address is 10222 San Diego Mission
Road, San Diego, CA 92108 ("Trustor"), Stewart Title Company ("Trustee"); and the Community
Development Commission of the City of National City ("Beneficiary"), whose address is 1243
National City Boulevard, National City, California 91950-4397;
TRUSTOR HEREBY irrevocably grants, transfers, and assigns to Trustee, in trust, with
power of sale, all that property in the City of National City, County of San Diego, State of California,
described as:
(See Legal Description - Exhibit "A")
FOR THE PURPOSE OF SECURING:
(a) Payment of the indebtedness evidenced by that certain Promissory Note of even date herewith
executed by Trustor, in the principal sum of Two Hundred Seventy -Two Thousand One Hundred
Nineteen and No/100 Dollars ($272,119.00), and any renewal, extension, or modification of the
promissory note (the "Note");
(b) Any additional sums and interest that may hereafter be loaned to the then record owner of the
Property by Beneficiary, when evidenced by another note or notes reciting that it or they are so
secured;
(c) That certain Development and Disposition Agreement of even date herewith executed by
Trustor and Beneficiary, and any renewal, amendment, extension, or modification of the
Development and Disposition Agreement (the "DDA");
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(d) That certain Agreement Affecting Real Property of even date herewith executed by Trustor
and Beneficiary, and any renewal, amendment, extension, or modification of the Agreement
Affecting Real Property (the "HARP");
(e) The performance of each agreement contained in this Deed of Trust.
A. TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES:
1. Maintenance and Repair. To keep the Property in good condition and repair; to pay when due
all claims for labor performed andmaterials furnished for the Property; to comply with all laws
affecting the Property or requiring any alterations or improvements to be made on the Property; not
to commit or permit waste of the Property; not to commit, suffer, or permit any act upon the Property
in violation of law; and to cultivate, maintain the landscaping, and do all other acts that from the
character or use of the Property may be reasonably necessary.
2. Fire Insurance. To provide, maintain, and deliver to Beneficiary fire insurance satisfactory to
and with loss payable to Beneficiary as its interest may appear. The amount collected under any fire
or other insurance policy may be applied by Beneficiary upon any indebtedness secured by this Deed
of Trust and in any order determined by Beneficiary, or at the option of Beneficiary the entire amount
so collected or any part of that amount may be released to Trustor, except that if the proceeds of the
award for any taking or injury to the Property or the amount of such proceeds plus funds provided by
Trustor is sufficient to allow for the repair and restoration of the Property and such repair and/or
restoration is physically and legally possible, then the Trustor shall use the proceeds of the award to
timely effectuate such repair and/or restoration. Upon receipt of such proceeds, Beneficiary may
hold the proceeds as further security, or apply or release them in the same manner and with the same
effect as provided in this Deed of Trust for the disposition of proceeds of fire or other insurance.
This application or release shall not cure or waive any default or notice of default under this Deed of
Trust or invalidate any act done pursuant to such a notice.
3. Defense of Security. To appear in and defend any action or proceeding purporting to affect
the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee; and to pay all
costs and expenses. including cost of evidence of title and attorneys' fees in a reasonable sum, in any
such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by
Beneficiary to foreclose this Deed of Trust.
4. Payment of Liens and Taxes. To pay, at least ten (10) days before delinquency, all taxes and
assessments affecting the Property, including assessments on appurtenant water stock, all
encumbrances, charges, and liens, with interest, on the Property or any part of the Property, which
appear to be prior or superior to this Deed of Trust; andall costs, fees, and expenses of this Trust. If
Trustor fails to make any payment or to do any act as provided in this Deed of Trust, then
Beneficiary or Trustee may (but is not obligated to) make the payment or do the act in the required
manner and to the extent deemed necessary by Beneficiary or Trustee to protect the security of this
Deed of Trust. The performance by Beneficiary or Trustee of such an act shall not require notice to
or demand upon Trustor and shall not release Trustor from any obligation under this Deed of Trust.
Beneficiary or Trustee shall also have the following related rights and powers: to enter upon the
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Property for the foregoing purposes; to appear in and defend any action or proceeding purporting to
affect the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee; to pay,
purchase, contest, or compromise any encumbrance, charge, or lien that in the judgment of either
appears to be prior or superior to this Deed of Trust; to employ counsel; and to pay necessary
expenses and costs, including attorneys' fees.
5. Reimbursement of Costs. To pay immediately and without demand all sums expended by
Beneficiary or Trustee pursuant to this Deed of Trust, with interest from date of expenditure at the
amount allowed by law in effect at the date of this Deed of Trust, and to pay any reasonable amount
demanded by Beneficiary (up to the maximum allowed by law at the time of the demand) for any
beneficiary statement requested by Trustor or any other beneficiary of a Deed of Trust encumbering
the Property regarding the obligation secured by this Deed of Trust.
6. Use. That Trustor will not permit or suffer the use of any of the Property for any purpose
other than the use for which the same was intended at the time this Deed of Trust was executed.
7. Incorporation of DDA and AARP. That the DDA and AARP are incorporated herein by
reference and made a part of this Deed of Trust.
8. Performance of Other Obligations. To perform, in a timely manner, each agreement and
covenant by and between Trustor on any and all notes, loans and deeds of trust that are senior and/or
junior to this Deed of Trust. A default in any of these obligations, beyond any applicable cure
period, shall constitute a default under this Deed of Trust.
B. THE PARTIES AGREE THAT:
9. Waiver of Late Payments. By accepting payment of any sum secured by this Deed of Trust
after its due date, Beneficiary does not waive its right either to require prompt payment when due of
all other sums so secured or to declare default for failure to pay any indebtedness secured by this
Deed of Trust.
10. Trustee's Powers. Upon written request of Beneficiary and presentation of this Deed of
Trust, Trustee may (a) reconvey all or any part of the Property; (b) consent to the making and
recording, or either, of any map or plat of all or any part of the Property; (c) join in granting any
easement on the Property; or (d) join in or consent to any extension agreement or any agreement
subordinating the lien, encumbrance, or charge of this Deed of Trust. Trustee need not provide
Trustor with notice before taking any of the foregoing actions, and shall not be liable for the proper
performance of the act. The exercise by Trustee of any of the foregoing powers shall not affect the
personal liability of any person for payment of the indebtedness secured by this Deed of Trust, or the
lien of this Deed of Trust on the remaining property as security for the repayment of the full amount
secured by this Deed of Trust.
11. Partial Reconveyance. Beneficiary shall cause Trustee to partially reconvey this Deed of
Trust, with respect to each Affordable Unit, upon the last to occur of: (i) the sale of the Affordable
Unit; (ii) the Low -Income Household's execution of the First -Time Homebuyer Note; (iii) the
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recordation against the individual Affordable Unit of the Resale Restriction; and (iv) the recordation
against the individual Affordable Unit of the deed of trust securing the First -Time Homebuyer Note
and the Resale Restriction.
12. Full Reconveyance. Upon written request of Beneficiary stating that all obligations secured
by this Deed of Trust have been performed in full, surrender of this Deed of Trust, any notes secured
by this Deed of Trust to the Trustee for cancellation and retention, and payment of Trustee's fees and
charges, Trustee shall reconvey, without warranty, the Property then subject to this Deed of Trust.
Absent manifest error, the recitals in the reconveyance shall be conclusive proof of the truthfulness
of the recitals. The grantee in the reconveyance may be described as "the person or persons legally
entitled thereto." Five years after issuance of the full reconveyance, Trustee may destroy the Note
and this Deed of Trust, unless directed in the request to retain them.
13. Assignment of Rents. As additional security, Trustor hereby gives to and confers upon
Beneficiary the right, power, and authority during the continuance of these Trusts, to collect the
rents, issues, and profits of the Property, but reserves the right, prior to any default by Trustor in
payment of any indebtedness secured by this Deed of Trust or in the performance of any agreement
under this Deed of Trust, to collect and retain these rents, issues, and profits as they become due and
payable. Upon any such default for which cure has not been commenced within thirty (30) days and
thereafter completed with diligence, Beneficiary may, without notice and without regard to the
adequacy of the security for the indebtedness secured by this Deed of Trust, either personally or by
agent or court -appointed receiver, do the following: enter upon and take possession of the Property
or any part of the Property; sue for or otherwise collect all rents, issues, and profits, including those
past due and unpaid; and apply these rents, issues, and profits, less costs and expenses of operation
and collection (including reasonable attorneys' tees), upon any indebtedness secured by this Deed of
Trust, in any order determined by Beneficiary. The exercise of the foregoing rights by Beneficiary
shall not cure or waive any default or notice of default under this Deed of Trust or invalidate any act
done pursuant to such a notice.
14. Default in Foreclosure. Upon default by Trustor in the payment of any indebtedness secured
by this Deed of Trust or in the performance of any obligation under this Deed of Trust, the DDA
and/or the AARP for which cure has not been commenced within thirty (30) days and thereafter
completed with diligence, Beneficiary may declare all sums secured by this Deed of Trust
immediately due and payable by delivering to Trustee a written declaration of default and demand for
sale and a written notice of default and election to sell the Property. Trustee shall cause the notice of
default and election to sell to be recorded. Beneficiary also shall deposit with Trustee this Deed of
Trust, a copy of the Agreement, and all other documents evidencing obligations secured by this Deed
of Trust. After the required time period has lapsed following the recordation of the notice of default,
and after notice of sale has been given as required by law, Trustee, without demand on Trustor, shall
sell the Property at the time and place specified in the notice of sale, either as a whole or in separate
parcels, and in any order determined by Trustee, at public auction to the highest bidder for cash in
lawful money of the United States, payable at the time of sale. Trustee may postpone sale of all or
any portion of the Property by public announcement at the time and place of sale, and from time to
time thereafter may postpone the sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to the purchaser at the auction its deed conveying the Property
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sold, but without any covenant or warranty, express or implied. Absent manifest error, the recital in
the deed of any matter or fact shall be conclusive proof of the truthfulness of the recital. Any person,
including Trustor, Trustee, or Beneficiary, may purchase at the sale. After deducting all costs, fees,
and expenses of Trustee and Beneficiary under this paragraph, including costs of procuring evidence
of title incurred in connection with sale, Trustee shall apply the proceeds of sale to payment of: all
sums expended under the terms of this Deed of Trust, not then repaid, with accrued interest at the
amount allowed by law in effect at the date of this Deed of Trust; all other sums then secured by this
Deed of Trust; and the remainder, if any, to the person or persons legally entitled to the remaining
proceeds.
15. Further Encumbrances. Should the undersigned agree to or actually sell, convey, transfer, or
dispose of, or further encumber the Property, or any part of it, or any interest in it (each, a
"Transfer"), without first obtaining the written consent of the Beneficiary, then all obligations
secured by the Deed of Trust may be declared due and payable, at the option of the Beneficiary,
unless such Transfer is permitted under Section 603 of the DDA. Consent to one transaction of this
type will not constitute a waiver of the right to acquire consent to future or successive transactions.
16. General Provisions. This Deed of Trust applies to, inures to the benefit of, and binds all
parties to this Deed of Trust and their heirs, legatees, devisees, administrators, executors, successors,
and assigns. The term "Beneficiary" shall mean the Community Development Commission of the
City of National City, and the heirs, legatees, devisees, administrators, executors, and assigns of any
such person. In this Deed, whenever the context so requires, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
17. Acceptance by Trustee. Trustee accepts this Trust when this Deed, duly executed and ack-
nowledged, is made a public record as provided by law. Trustee is not obligated to notify any party
to this Deed of Trust of pending sale under any other deed of trust or of any action or proceeding in
which Trustor. Beneficiary, or Trustee shall be a party unless brought by Trustee.
18. Substitution of Trustees. Beneficiary, or any successor in ownership of any indebtedness
secured by this Deed of Trust, may from time to time, by written instrument, substitute a successor or
successors to any Trustee named in or acting under this Deed of Trust. The substitution instrument
shall contain the name of the original Trustor. "Trustee, and Beneficiary under this Deed of Trust, the
book and page where this Deed is recorded, and the name and address of the new Trustee. When
executed by Beneficiary and duly acknowledged and recorded in the office of the recorder of the
county or counties where the Property is situated, the substitution instrument shall be conclusive
proof of proper substitution of the successor Trustee or Trustees. Any successor Trustee or Trustees
shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers,
and duties.
19. Cumulative Powers and Remedies. The powers and remedies conferred in this Deed of Trust
are concurrent and cumulative to all other rights and remedies provided in this Deed of Trust or
given by law. These powers and remedies maybe exercised singly, successively, or together, and as
often as deemed necessary.
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20. Conclusiveness of Recitals. The recitals contained in any reconveyance, trustee's deed, or
any other instrument executed by the Trustee from time to time under the authority of this Deed of
Trust or in the exercise of its powers or the performance of its duties under this Deed of Trust, shall
be conclusive evidence of their truth, whether stated as specific and particular facts, or in general
statements or conclusions absent manifest error. Further, the recitals shall be binding and conclusive
upon the Trustor, its heirs, executors, administrators, successors, and assigns, and all other persons.
21. Attorneys' Fees. If any action is brought for the foreclosure of this Deed of Trust or for the
enforcement of any provision of this Deed of Trust (whether or not suit is filed), Trustor agrees to
pay all costs and expenses of Beneficiary and Trustee, including reasonable attorneys' fees; and these
sums shall be secured by this Deed of Trust.
22. Co -trustees. If two or more persons are designated as Trustees in this Deed of Trust, any, or
all, power granted in this Deed of Trust to Trustee may be exercised by any of those persons, if the
other person or persons are unable, for any reason, to act. Any recital of this inability in any
instrument executed by any of those persons shall be conclusive against Trustor and Trustor's heirs
and assigns.
23. Request for Notices of Default and Sale. In accordance with Section 2924b of the California
Civil Code. request is hereby made that a copy of any Notice of Default and a copy of any Notice of
Sale under that Deed of Trust executed by the Trustor concerning this Property be mailed to:
Community Development Commission of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
NOTICE: A copy of any notice of default and of any notice of sale will be sent only to the
address contained in this recorded request. If your address changes, a new request must be
recorded.
The undersigned Trustor requests that a copy of any notice of default and of any notice of sale under
this Deed of Trust be mailed to Trustor at the address of Trustor set forth above.
24. Inspections. Trustor shall permit Beneficiary and its agents or representatives, to inspect the
Property at any and all reasonable times, with at least 24 hours advance notice. Inspections shall be
conducted so as not to interfere with the tenants' use and enjoyment of the Property.
25. Hazardous Materials Defined. For purposes of this Deed of Trust, "Hazardous Materials"
mean and include any hazardous, toxic or dangerous waste, substance or material including, without
limitation, flammable explosives, radioactive materials, asbestos, hazardous wastes, toxic substances
and any materials or substances defined as hazardous materials, hazardous substances or toxic
substances in (or for purposes of) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"). as amended (42 U.S.C. §9601, et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. §1801, et seq.), the Resource Conservation and Recovery Act (42
U.S.C. §6901, et seq.), and those substances defined as hazardous wastes in §25117 of the California
6
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Health and Safety Code or as hazardous substances in §25316 of the California Health and Safety
Code or in any regulations promulgated under either such law, any so-called "Superfund" or
"Superlien" law, or any other federal, state or local statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect.
26. Trustor's Hazardous Materials Representations and Warranties and Indemnity. In addition to
the general and specific representations, covenants and warranties set forth in the Deed of Trust or
otherwise, Trustor represents, covenants and warrants, with respect to Hazardous Materials, as
follows:
(a) Neither Trustor nor, to the best knowledge of Trustor, any other person, has ever
caused or permitted any Hazardous Materials to be manufactured, placed, held, located or disposed
of on, under or at the Property or any part thereof, and neither the Property nor any part thereof, or
any property adjacent thereto, has ever been used (whether by the Trustor or, to the best knowledge
of the Trustor, by any other person) as a manufacturing site, dump site or storage site (whether
permanent or temporary) for any Hazardous Materials;
(b) Trustor hereby agrees to indemnify Beneficiary, its officers, employees, contractors
and agents, and hold Beneficiary, its officers, employees, contractors and agents harmless from and
against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every
kind whatsoever paid, incurred or suffered by, or asserted against Beneficiary, its officers,
employees, contractors or agents for, with respect to, or as a direct or indirect result of, the presence
or use. generation, storage, release, threatened release or disposal of Hazardous Materials on or under
the Property or the escape, seepage, leakage, spillage, discharge, emission or release of any
Hazardous Materials from the Property (including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under CERCLA, any so-called
"Superfund" or "Superlien" law, or any other federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct
concerning any Hazardous Materials) regardless of whether or not caused by or within the control of
Trustor. Notwithstanding the foregoing, Trustor's obligations under this section shall not apply to
any losses, liabilities, damages, injuries, costs, expenses, or claims which arise out of or relate to
Hazardous Materials which (1) were present, generated, released, or stored on the Property on or
before the date that Trustor acquired title to the Property or (2) are generated, released or stored on
the Property after the date that Beneficiary takes possession thereof.
(c) Trustor has not received any notice of (i) the happening of any event involving the
use, spillage, discharge, or cleanup of any Hazardous Materials ("Hazardous Discharge") affecting
Trustor or the Property or (ii) any complaint, order, citation or notice with regard to air emissions,
water discharges, noise emissions or any other environmental, health or safety matter affecting
Trustor or the Property ("Environmental Complaint") from any person or entity, including, without
limitation, the United States Environmental Protection Agency ("EPA"). If Trustor receives any
such notice after the date hereof, then Trustor will give, within seven (7) business days thereafter,
oral and written notice of same to Beneficiary.
7
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(d) Without limitation of Beneficiary's rights under this Deed of Trust, Beneficiary shall
have the right, but not the obligation, to enter onto the Property or to take such other actions as it
deems necessary or advisable to clean up, remove, resolve or minimize the impact of, or otherwise
deal with, any such Hazardous Materials or Environmental Complaint upon its receipt of any notice
from any person or entity, including without limitation, the EPA, asserting the existence of any
Hazardous Materials or an Environmental Complaint on or pertaining to the Property which, if true,
could result in an order, suit or other action against Trustor affecting any part of the Property by any
governmental agency or otherwise which, in the sole opinion of Beneficiary, could jeopardize its
security under this Deed of Trust. All reasonable costs and expenses incurred by Beneficiary in the
exercise of any such rights shall be secured by this Deed of Trust and shall be payable by Trustor
upon demand together with interest thereon at a rate equal to the highest rate payable under the note
secured hereby.
(e) The foregoing representation, covenants, indemnities and warranties shall be
continuing and shall be true and correct for the period from the date hereof to the release of this Deed
of Trust (whether by payment of the indebtedness secured hereby or foreclosure or action in lieu
thereof), and these representations, covenants, indemnities and warranties shall survive such release.
27. Choice of Law. This Deed of Trust shall be governed by and construed in accordance with
the laws of the State of California.
28. Authority to Sign. All individuals signing this Deed of Trust for a party which is a
corporation, limited liability company, partnership or other legal entity, or signing under a power of
attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the
Beneficiary that they have the necessary capacity and authority to act for, sign and bind the
respective entity or principal on whose behalf they are signing.
TRUSTOR:
San Diego Habitat for Humanity. Inc., a California nonprofit corporation
By:
Print Name: Nlt(,,NARA y .fl"
Its: � cca�{;,� 1 P6-11
By:
Print Name:
Its:
8
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ACKNOWLEDGMENT
State of California )
County of San Diego )
OnpeRl 2 t� , 200.1 before me,GP e_ot-9 t" .) AN lac.?L_ t-� k PIA. .'4` (-Tr -, LPL
personally appeared ht \ 1 ., r-1 if1G Gti.ly,-->;hi- V-IA Eu • t>k R - who proved to me on the
basis of satisfactory evidence to be the personswhose name(1s,),Lsj-subscribed to the within
instrument and acknowledged to me that 11e e/Akie.}L executed the same in lair -authorized
capacity (i1 , and that b ts, er-41wif-signatureson the instrument the person or the entity upon
behalf of which the person acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signatur� (Seal)
ACKNOWLEDGMENT
State of California
County of San Diego
On , 200 before me,
personally appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
CAROLYN JANE SOU.MAN
Commission • 1770907
• ' Notary Public - California
i certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
9
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EXHIBIT "A"
LEGAL DESCRIPTION
ORDER NO.: 126748
ESCROW NO.: 1441 Harding
The land referred to herein is situated in the State of California County of San Diego, and described as
follows:
Lots 8, 9 and 10 in Block 114 of National City, in the City of National
City, County of San Diego, State of California, according to Map thereof
No. 348, filed in the office of the county recorder of San Diego County,
October 2, 1882.
hilt Vlileber'. 12t.r4t1 F.bibil A Icbal Ocscriplioll TON
Page 1 of 1
RECORDING REQUESTED BY
STEWART TITLE OF CALIFORNIA
Recording Requested By:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
And When Recorded Mail To:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
IIII II IIII IIII IIIII IIII IIIII IIIII IIIII IIIII IIII I III
MAY 29, 2009 2:59 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
DAVID L. BUTLER, COUNTY RECORDER
FEES: 0.00
PAGES:
111111IIIII1111IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII11111 VII IIII
This document is exempt from the payment of a recording fee pursuant to Government Code Section
6103.
AGREEMENT AFFECTING REAL PROPERTY
(1441 Harding Avenue)
THIS AGREEMENT AFFECTING REAL PROPERTY is made this 28 day of April,
2009, between San Diego Habitat for Humanity, Inc., a California nonprofit corporation
("Developer"), and the Community Development Commission of the City ofNational City ("CDC").
A. Developer is the owner of that certain real property located in the City of National
City, County of San Diego, State of California, described in Exhibit "A" attached hereto and made a
part hereof (referred to herein as the "Property").
B. Developer has acquired the Property from the CDC pursuant to that certain
Development and Disposition Agreement dated April 21, 2009 ("DDA"), in furtherance of the
Redevelopment Plan for the National City Redevelopment Project ("Redevelopment Plan"), adopted
by Community Development Commission of the City of National City on July 18, 1995. One of the
components of the Redevelopment Plan for the National City Redevelopment Project, adopted by
Community Development Commission of the City of National City on July 18, 1995, is to provide
affordable housing opportunities for households earning one eighty percent (80%) or less of the area
medium income, adjusted for family size and revised annually by the U.S. Department of Housing
and Urban Development for the San Diego Metropolitan Statistical Area.
C. In order to further assist in the development of below market rate affordable housing,
the CDC and Owner have agreed to enter into this Agreement Affecting Real Property to be
covenants, conditions and restrictions and equitable servitudes running with the land with respect to
the Property.
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8
III
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, CDC and Developer hereby agree and declare as follows and each subsequent owner
of the Property and their successors are deemed to covenant and agree, that the Property shall be
held, sold and conveyed subject to the following covenants and conditions which shall run with the
land and be binding on all parties having any right, title or interest in the Property, their respective
heirs, legatees, devisees, administrators, executors, successors and assigns, and shall inure to the
benefit of the CDC, its successors and assigns:
1. Construction of Affordable Units. Under the terms of the DDA, Developer is obligated to
construct on the Property a total of three (3) for -sale, single family homes (the "Affordable Units"),
as set forth in more detail therein. No other dwelling units will be constructed on the Property.
2. Definitions. The following terms shall have the following meanings:
(a) Area Median Income. "Area Median Income" shall mean the area median income
defined by the Department of Housing and Urban Development (HUD) as the then current area
median income for the San Diego Standard Metropolitan Statistical Area, established periodically by
HUD and published in the Federal Register, as adjusted for family size. In the event HUD ceases to
publish an established area median income as aforesaid, CDC may, in its sole discretion, use any
other reasonably comparable method of computing area median income.
(b) Low Income Household. "Low Income Household" means persons and families
whose income does not exceed sixty percent (60%) of the then current Area Median Income,
provided that such persons or families meet the additional requirements set forth in Section 4 of this
Agreement Affecting Real Property.
(c) Maximum Sales Price. "Maximum Sales Price" shall mean the maximum amount of
consideration, of any kind whatsoever, that the Developer may receive for any Affordable Unit,
which amount shall not exceed the lesser of: (i) the sum of (A) the purchase price which would result
in a Monthly Housing Cost, as determined by the CDC, which does not exceed the product of one
twelfth (1/12) of thirty percent (30%) times sixty percent (60%) of the then Area Median Income as
adjusted for household size appropriate for the unit, plus (B) the amount of the Developer Note
assumed by the Low Income Household that purchases such Affordable Unit; or (ii) the Single
Family Mortgage Limit for the County of San Diego under Section 203(b) of the National Housing
Act (12 U.S.C. §1709(b)) or any other limitation then provided by Code of Federal Regulations
§92.254(a) or any successor law or regulation.
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3. Covenants Concerning Sales of Affordable Units and HUD HOME Program. Developer
represents and warrants to the CDC that Developer shall sell the three (3) Affordable Units (all of the
units at the Property) only to Low Income Households for an amount that does not exceed the
Maximum Sales Price and that future sales of the Affordable Units for a period of 45 years shall be
only to Low Income Households for an amount that does not exceed the Maximum Sales Price. The
Affordable Units will be restricted for twenty (20) years from initial occupancy under the HUD
HOME Program, Redevelopment Plan and the California Community Redevelopment Law. In the
event of conflict during such 20 year period between the statutes, provisions or regulations of the
HUD HOME Program, Redevelopment Plan or the California Community Redevelopment Law, the
HUD HOME Program shall apply. Thereafter, the Affordable Units will be restricted for the
remainder of the term under the Redevelopment Plan and the California Community Redevelopment
Law. Developer shall comply with all regulations, policies and procedures promulgated by HUD, or
the CDC in connection with the HOME Program, including without limitation all applicable
provisions of 24 CFR Part 92. Developer's failure to so comply shall constitute a material default
hereunder.
4. Additional Definition of Low Income Households.
(a) No Relationship With Developer. The term Low Income Household shall not include
any person employed by Developer, or any individuals who are members, principals, officers,
directors, partners, employees, agents or shareholders of Developer, or any entity having an
ownership interest in the Property or in any Affordable Unit.
(b) No Full -Time Students. The term Low Income Household shall not include any
person who is a full-time student, or a household comprised exclusively of persons who are full-time
students, unless such persons are married and eligible to file a joint federal income tax return. The
term "full-time student" shall be defined as any person who will be or has been a full-time student
during five calendar months of the calendar year in question at an educational institution (other than
a correspondence school) with regular faculty and students.
(c) No Student Dependents. Notwithstanding the provisions of subparagraph 4(b), the
term Low Income Household shall not include any student dependent as defined in the U.S. Internal
Revenue Code, unless the taxpayer (upon whom the student in question is dependent) will reside in
the same Affordable Unit.
(d) No Owners of Real Property. The term Low Income Household shall not include any
person or any household comprised of one or more persons who own real property.
(e) Liquid Asset Limitation. The term Low Income Household shall not include any
person or household holding, directly or indirectly, liquid assets whose aggregate value exceeds, at
the time of determination of eligibility, one hundred percent (100%) of the then -current annual Area
Median Income. As used herein, the term "liquid assets" refers to cash and assets which are readily
convertible to cash within a reasonable period, including but not limited to savings and checking
accounts, certificates of deposit of any term, marketable securities, money market and similar
accounts, mutual fund shares, and insurance policy cash values. The term "liquid assets" shall not
3
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include retirement funds which are not readily accessible or which cannot be accessed by the buyer
without the buyer incurring a penalty.
(f) Income of Co -Purchasers. The income of all co -purchasers and/or occupants shall be
taken into account in determining whether a household is a Low Income Household.
(g) Principal Place of Residence. A purchaser of an Affordable Unit shall not qualify as a
Low Income Household, unless that purchaser agrees to reside in the Affordable Unit as such
purchaser's principal place of residence during the entire period that the Affordable Unit is owned by
such purchaser.
5. Release and Termination. The CDC shall partially release and terminate this Agreement
Affecting Real Property, with respect to each Affordable Unit, upon the last to occur of: (i) the sale
of the Affordable Unit; (ii) the Low -Income Household's execution of the First -Time Homebuyer
Note, as defined in the DDA; (iii) the recordation against the individual Affordable Unit of the
Resale Restriction, as defined in the DDA; and (iv) the recordation against the individual Affordable
Unit of the deed of trust securing the First -Time Homebuyer Note and the Resale Restriction.
6. Foreclosure by Court Action. The CDC may in its sole and absolute discretion foreclose the
lien created hereby by foreclosing on the Deed of Trust securing this Agreement Affecting Real
Property or by court action in the manner provided by the laws then applicable to this Agreement
Affecting Real Property, in either case the Developer agrees to pay all costs and expenses thereof,
including reasonable attorneys' fees as the court may determine.
7. Notices. Any notice, demand, request or other communication which any party hereto may
be required or may desire to give hereunder shall be in writing and will be effectively served upon
personal delivery or, if mailed, no later than 48 hours after deposit in first class or certified United
States mail, postage prepaid, sent to:
To CDC:
To Developer:
Community Development Commission of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
San Diego Habitat for Humanity, Inc.
10222 San Diego Mission Road
San Diego, CA 92108
which addresses may be changed by written notice.
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8. Standing, Equitable Remedies; Cumulative Remedies. Developer expressly agrees and
declares that the CDC or its successors shall be the proper party and shall have standing to initiate
and pursue any and all actions or proceedings, at law or in equity, to enforce the provisions hereof
and/or to recover damages for any default hereunder, notwithstanding the fact that such damages or
the detriment arising from such a default may have actually been suffered by some other person or by
the public at large. Further, Developer expressly agrees that receivership, injunctive relief and
specific performance are proper pre-trial and/or post -trial remedies hereunder, and that, upon any
default, and to assure compliance with this Agreement Affecting Real Property. Nothing in this
paragraph, and no recovery to the CDC, shall restrict or limit the rights or remedies of persons or
entities other than the CDC, against Developer in connection with the same or related acts by
Developer, the Property or this Agreement Affecting Real Property.
9. General Provisions.
(a) Integration. The undersigned, and each of them, acknowledge and represent that no
promise or inducement not expressed in this Agreement Affecting Real Property has been made in
connection with this Agreement Affecting Real Property. This Agreement Affecting Real Property
contains the entire agreement and understanding between the parties as to its subject matter.
(b) Waiver and Amendment. No provision of this Agreement Affecting Real Property, or
breach of any provision, can be waived except in writing. Waiver of any provision or breach shall
not be deemed to be a waiver of any other provision, or of any subsequent breach of the same or
other provision. Except as otherwise provided herein, this Agreement Affecting Real Property may
be amended, modified or rescinded only in writing signed by Developer and the CDC.
(c) Time of Essence. Time is expressly declared to be of the essence in this Agreement
Affecting Real Property, and of every provision in which time is an element.
(d) Captions. Paragraph titles and captions contained in this Agreement Affecting Real
Property are inserted as a matter of convenience and for reference, and are not a substantive part of
this Agreement Affecting Real Property.
(e) Further Assurances. The parties each agree to sign any additional documents, which
are reasonably necessary to carry out this Agreement Affecting Real Property or to accomplish its
intent.
(f) Benefit and Burden. This Agreement Affecting Real Property shall be binding upon
and inure to the benefit of the parties and their respective heirs, representatives, successors and
assigns. This Agreement Affecting Real Property is not intended to benefit any person other than the
parties hereto.
(g) Governing Law. This Agreement Affecting Real Property has been entered into in the
State of California, and shall be interpreted and enforced under California law.
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(h) Attorneys' Fees. The prevailing party in any action, including, but not limited to,
arbitration, a petition for writ of mandate, and/or an action for declaratory relief, brought to enforce,
interpret or reform the provisions of this Agreement Affecting Real Property shall be entitled to
reasonable attorneys' fees and costs (including, but not limited to, experts' fees and costs and
trustee's fees, and including "costs" regardless of whether recoverable as such under statute) incurred
in such action.
(i) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement
Affecting Real Property are hereby incorporated in this Agreement Affecting Real Property by this
reference, regardless of whether or not the exhibits are actually attached to this Agreement Affecting
Real Property. The Recitals to this Agreement Affecting Real Property are hereby incorporated in
this Agreement Affecting Real Property by this reference.
(j) Signatures. This Agreement Affecting Real Property may be signed in counterparts.
All individuals signing this Agreement Affecting Real Property for a party which is a corporation,
limited liability company, partnership or other legal entity, or signing under a power of attorney, or
as a trustee, guardian, conservator, or in any other legal capacity, covenant to the CDC that they have
the necessary capacity and authority to act for, sign and bind the respective entity or principal on
whose behalf they are signing.
CDC:
Communi ' Development Commission of the City of National City
By:
Print Name: Ron Morrison
Its: Chairman
AP ROVED AS TO FORM:
w
Special C.
DEVELOPER:
San Diego Habitat for Humanity, Inc., a California nonprofit corporation
Print Name: h'I � CSra.1
Its: tv,zc,.1,v� ,rec,��
By:
Print Name:
Its:
6
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ACKNOWLEDGMENT
State of California )
)
County of San Diego )
ra PR v
On "- , 2O F before me, uL.p j A N E N
personally appeared tii 1KE ►,-kRxe-G R who proved to me on the
basis of satisfactory evidence to be the perso*,)_whose name is ubscribed to the within
instrument and acknowledged to me thalVe she{they executed the same ingpiterftfter authorized
capacity(fes), and that b i cr/tkeirsignatureson the instrument the person or the entity upon
behalf of which the person acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
State of California
County of San Diego
)
)
)
ACKNOWLEDGMENT
On I1`) e% , 200 9 before me, U- I'1`) v rC NleArb igV
personally appeared Rem i)h cry-- who proved to me on the
basis of satisfactory evidence to be the person( "whose named is/are- subscribed to the within
instrument and acknowledged to me that he/skreigley executed the same in his/heir authorized
capacity(ies), and that by his/berftheir-signature(s-on the instrument the person(*or the entity upon
behalf of which the person. acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature O. i� , (c•iefie
J _ J_
a a aV L �
V. M.
CommIsmon # 1631882
Hatay PubNc • California
Son Diego County
My Comm. Expires Dec 20.111,
700
(Seal)
L
7
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EXHIBIT "A"
LEGAL DESCRIPTION
ORDER NO.: 126748
ESCROW NO.: 1441 Harding
The land referred to herein is situated in the State of California County of San Diego, and described as
follows:
Lots 8, 9 and 10 in Block 114 of National City, in the City of National
City, County of San Diego, State of California, according to Map thereof
No. 348, filed in the office of the county recorder of San Diego County,
October 2, 1882.
Filc Number 126748 Exhibit A Legal Descnplion Title
Page I of 1
DOC # 2009-0288735
RECORDING REQUESTED BY
STEWART TITLE OF C�LIFORNIA
Recording Requested y:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
And When Recorded Mail To:
Community Development Commission
of the City of National City
1 243 National City Boulevard
National City, CA 91950-4397
II
I
II
1 IIIII IIIII II II II II IIIII IIII III IIIII it III
MAY 29, 2009 2:59 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
DAVID L. BUTLER, COUNTY RECORDER
FEES: 18.00
PAGES: 4
111101IIIII IIIII IIIII HII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII
This document is exempt from the payment of a recording fee pursuant to Government Code Section
6103.
NOTICE OF AFFORDABILITY RESTRICTIONS
ON TRANSFER OF PROPERTY
(HEALTH AND SAFETY CODE §33334.3(f)(3)(B))
(1441 Harding Avenue)
NOTICE IS HEREBY PROVIDED AS FOLLOWS:
1. Diego Habitat for Humanity, Inc., a California nonprofit corporation
("Habitat"), is the owner of that certain real property located in the City of National
City, California, more particularly described in the attached Exhibit "A" ("Property").
2. The Community Development Commission of the City of National City
("CDC") is providing partial financing for the Property with moneys from its Low and
Moderate Income Housing Fund.
3. Concurrently herewith Habitat and the CDC are causing the Property to
be encumbered by that certain AGREEMENT AFFECTING REAL PROPERTY
("Restrictions"), which generally restrict the sale and occupancy of three (3) single
family homes at the Property to persons at or below 60% of AMI, as set forth in more
detail therein.
4. The Restrictions expire forty-five (45) years from completion of
construction of the Affordable Units as set forth in the Restrictions.
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m
5. The Property is generally located at 1441 Harding Avenue, National City,
California.
6. The Property assessor's parcel number is 559-063-04.
7. In the event of any conflict between one or more provisions of this
document and one or more provisions of the Restrictions, the provisions of the
Restrictions shall apply.
HABITAT:
San Diego Habitat for Humanity, Inc., a California nonprofit corporation
By:
Print Name: Nl', c .elf rv\c.to
Its: re c
By:
Print Name:
Its:
CDC:
Community Development Commission of the City of National City
By:1--
Print ame: Ron Morrison
Its: Chairman
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ACKNOWLEDGMENT
State of California )
County of San Diego )
iSv1-A�"�
On P\ R" 2c" "‘, 2009, before meaozok.-�..)N 3 eNt-i 014 , personally appeared,
M IKC MF1L(�t�E 1i CS�HFF� D1R:
, proved to me on the basis of satisfactory evidence to be the
person whose nameafe-subscribed to the within instrument and acknowledged to me that
' s1 ey executed the same in is erfttreir authorized capacity(, and that by ii herf teir-
signaturs on the instrument the person(, or the entity on behalf of which the person acted,
executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
gn 4 � V 67"_ (Sea
fN
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ACKNOWLEDGMENT
CAROlYN JANE WLLMAN
Commission i 1776907
Notary Public - California
Ran Diego County
State of California )
County of San Diego )
On /Y .ci 19 , 2009, before me, V . Th . Or C u -E ` P6H�ersonally appeared,
g(fl o r-r- t, ;) proved to me on the basis o satis actory evidence to be the
person( whose name's)-is/ar-e subscribed to the within instrument and acknowledged to me that
he/may executed the same in his/her/XI it. authorized capacity(ie.8), and that by hisiller4heir
signature(s) on the instrument the person(A), or the entity on behalf of which the person(a'J acted,
executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature -V %V)_ (Seal)
3
C:\Documents and Settings\karcny.HFHSD\Local Settings \ Temporary Internet Files10LK19FWotice of Affordability Restrictions vl.doc
EXHIBIT "A"
LEGAL DESCRIPTION
ORDER NO.: 126748
ESCROW NO.: 1441 1 larding
The land referred to herein is situated in the State of California County of San Diego, and described as
follows:
Lots 8, 9 and 10 in Block 114 of National City, in the City of National
City, County of San Diego, State of California, according to Map thereof
No. 348, filed in the office of the county recorder of San Diego County,
October 2, 1882.
Filc Exliibil A Lc gal Descrlp11o0 Title
Page 1 of 1
RESOLUTION NO. 2009 — 88
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF NATIONAL CITY
AUTHORIZING THE CHAIRMAN TO EXECUTE
A DISPOSITION AND DEVELOPMENT AGREEMENT
WITH SAN DIEGO HABITAT FOR HUMANITY TO
DEVELOP AN AFFORDABLE HOUSING PROJECT
AT 1441 HARDING AVENUE
WHEREAS, the Community Development Commission of the City of National
City (CDC) is implementing the Redevelopment Plan for the National City Redevelopment
Project; and
WHEREAS, the CDC acquired the property located at 1441 Harding Avenue
using $400,000 in federal HOME funds to develop an affordable housing project; and
WHEREAS, San Diego Habitat for Humanity is a certified Community Housing
Development Organization qualified to develop an affordable housing project utilizing federal
HOME funds, and was selected on October 17, 2006, by the CDC to develop said property; and
WHEREAS, on December 19, 2006, the CDC entered into an Exclusive
Negotiations Agreement (ENA) with Habitat for Humanity to prepare plans for the development
of affordable housing on the site; and
WHEREAS, the CDC desires to partner with San Diego Habitat for Humanity by
transferring title to the property at the price of one dollar ($1.00); and
WHEREAS, the CDC further desires to assist San Diego Habitat for Humanity to
develop three for -sale single-family units affordable to families earning 60-percent of the Area
Median Income as defined by the U.S. Department of Housing and Urban Development by
clearing the property of existing structures, providing $272,119 in HOME program income funds;
and
WHEREAS, San Diego Habitat for Humanity has worked diligently to process
land use entitlements and permits for the project; and
WHEREAS, on December 1, 2008, the National City Planning Commission
recommended approval of the Project.
NOW, THEREFORE, BE IT RESOLVED that the Community Development
Commission of the City of National City hereby authorizes the Chairman to execute a Disposition
and Development Agreement with San Diego Habitat for Humanity to develop an affordable
housing project at 1441 Harding Avenue, National City, California. Said Agreement is on file in
the office of the City Clerk.
--- Signature Page to Follow ---
Resolution No. 2009 — 88
April 21, 2009
Page 2
PASSED and ADOPTED this 21st day of April, 2009.
on Morrison, Chairman
ATTEST:
Brad Rn, Secretary
APPROVED AS TO FORM:
George H. Eiser, Ill
City Attorney
Passed and adopted by the Community Development Commission of the City of
National City, California, on April 21, 2009, by the following vote, to -wit:
Ayes: Commissioners Morrison, Parra, Sotelo-Solis, Van Deventer, Zarate.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Chairman, Community Development Commission
unity Development Commission
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2009-88 of the Community Development Commission of the City of
National City, California, passed and adopted on April 21, 2009.
Secretary, Community Development Commission
By:
Deputy
C
City of National City, California
COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT
MEETING DATE April 21 2009 AGENDA ITEM NO. 35
/ITEM TITLE A resolution approving a Disposition and Development Agreement with San
Diego Habitat for Humanity Incorporated for an affordable housing project to be located at
1441 Harding Avenue.
PREPARED BY
Alfredo Ybarra (ext 4279)
Community Development Manager
DEPARTMENT
Community Develop
��,;
Housing and Grants
EXPLANATION The Community Development Commission ("CDC") acquired the 8,712
square feet parcel at 1441 Harding Avenue using $400,000 in HOME funds from the United
States Department of Housing and Urban Development ("HUD") for the purpose of developing
an affordable housing project on the site. HUD requires that a certified Community Housing
Development Organization ("CHDO") be selected as the developer. Since the 2003 CDC
acquisition, a competitive recruitment for such a qualified CHDO was conducted and San Diego
Habitat for Humanity was selected for the project. This Agreement would allow transfer of the
land to Habitat for Humanity for the price of $1 for the development of three (3) single family
units consisting of two- two (2) story units and one -one (1) story unit. Each unit will be sold as
affordable to buyers earning at or below 60-percent Average Median Income ("AMI") as defined
by HUD and to be restricted in price to remain affordable to those earning at or below 60-percent
ZAMI for a period of 45 years. An additional subsidy of $272,119 would also be provided to
hieve the desired affordability levels from HOME program income funds.
Environmental Review A Statement of Exemption pursuant to CEQA Section 15192 for
Affordable Housing was prepared. In accordance with NEPA, an Environmental Assessment and
Finding of No Significant Impact (FONSI) were prepared.
Financial Statement The property located at 1441 Harding Avenue was acquired by the CDC
for $400,000 using HUD HOME funds. The sale of the property to San Diego Habitat for
Humanity will be for $1. An additional $272,119 will be provided from HOME ;L•gr. m income)
funds approved by Council on December 2. 2008.
Account No. 506-445-470-650-9023
STAFF RECOMMENDATION Adopt the resolution.
BOARD / COMMISSION RECOMMENDATION The Planning Commission unanimously
approved the project at its meeting of December 1, 2008.
ATTACHMENTS
Proposed DDA
`' Resolution No.
City of National City
Office of the City Clerk
1243 National City Boulevard, National City, CA 91950-4397
Michael R. Dalla, CMC - City Clerk
(619) 336-4228 Fax: (619) 336-4229
May 12, 2009
Ms. Cheryl Keenan
San Diego Habitat for Humanity, Inc.
10222 San Diego Mission Road
San Diego, CA 92108
Dear Ms. Keenan,
On April 21 st, 2009, Resolution No. 2009-88 was passed and adopted by the City
Council of the City of National City, authorizing execution of a Disposition and
Development Agreement with San Diego Habitat for Humanity.
We are enclosing for your records a certified copy of the above Resolution and a
fully executed original agreement.
Sincerely,
Michael R. Dalla, CMC
City Clerk
Enclosures
cc: Housing & Grants Department
® Recycled Paper