HomeMy WebLinkAbout2018 CON CDC San Diego Habitat for Humanity - Disposition and Development - 405-419 W. 18th StreetDISPOSITION AND DEVELOPMENT AGREEMENT
By and Between the
COMMUNITY DEVELOPMENT COMMISSION -
HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY
and
SAN DIEGO HABITAT FOR HUMANITY
and
SAN DIEGO COMMUNITY LAND TRUST
(405-419 West 18th Street)
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DISPOSITION AND DEVELOPMENT AGREEMENT
(405-419 West 18th Street)
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is dated as
of the 2nd day of October, 2018 by and between the Community Development Commission -
Housing Authority of the City of National City ("CDC -HA"), and San Diego Habitat for
Humanity, a California non-profit public benefit corporation ("Habitat"), and San Diego
Community Land Trust, a 501(c)(3) non-profit corporation ("SDCLT").
RECITALS
A. The CDC -HA owns that certain real property commonly known as 405-419 West
18th Street in the City of National City, which is more particularly described on Exhibit A hereto
("Property").
B. CDC -HA, Habitat and SDCLT desire by this Agreement to establish conditions for:
(i) the CDC -HA to transfer fee title to the Property to Habitat; (ii) Habitat to construct the Project,
as defined below, on the Property; (iii) Habitat to transfer the Property to SDCLT after completion
of the Project; and (iv) SDCLT to ground lease each of the Affordable Units (and each of the
Accessory Dwelling Units if SDCLT elects to sell the Accessory Dwelling Units), as defined
below, to Eligible Persons for an affordable price.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, CDC -HA, Habitat and SDCLT hereby agree as follows:
100. Definitions.
"Accessory Dwelling Units" means collectively, the six (6) accessory dwelling units, as
defined in California Government Code Section 65852.2, to be constructed on the Property (one
attached to each of the Affordable Units) whose occupancy and sales prices or rental rates are
restricted to Eligible Persons.
"Affordable Lot" means each of the six (6) legal lots which comprise the Property. Habitat
shall construct one (1) Affordable Unit on each of the six (6) Affordable Lots. Notwithstanding
the foregoing, if Habitat or SDCLT elects to sell the Accessory Dwelling Units as individual for -
sale units, then "Affordable Lot" shall mean each of the twelve (12) legal lots which then comprise
the Property. In such event, Developer shall construct one (1) Affordable Unit or one (1)
Accessory Dwelling Unit, as applicable, on each of the twelve (12) Affordable Lots.
"Affordable Units" means collectively, the six (6) single-family residential dwelling units
to be constructed on the Property whose sale, price and occupancy are restricted to Eligible
Persons.
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"Agreement" means this Disposition and Development Agreement between CDC -HA,
Habitat and SDCLT.
"Area Median Income" means the area median income, as adjusted for family size, for the
San Diego -Carlsbad Metropolitan Statistical Area, established periodically by the U.S.
Department of Housing and Urban Development ("HUD") and published in the Federal Register.
In the event HUD ceases to publish an established Area Median Income as aforesaid, the CDC -
HA may, in its reasonable discretion, use any other reasonably comparable method of computing
Area Median Income and/or the Annual Housing Cost.
"CDC -HA" means the Community Development Commission -Housing Authority of the
City of National City.
"City" means the City of National City, a California municipal corporation.
"Closing" the close of Escrow for the conveyance of the Property from the CDC -HA to
Habitat.
"Closing Deadline" means June 30, 2019, unless extended by agreement of Habitat,
SDCLT and the Executive Director of the CDC -HA or his or her designee.
"Construction Deed of Trust" means a deed of trust recorded against the Property for
purposes of obtaining financing for construction of the Project.
"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 601 hereof.
"Eligible Persons" (or individually `Eligible Person") means: (i) with respect to the sale of
the Affordable Units or Accessory Dwelling Units, persons or families earning not more than
eighty percent (80%) of the then current Area Median Income, provided that such persons or
families also meet the requirements set forth in Section 406 of this Agreement; and (ii) with respect
to the rental of the Accessory Dwelling Units, persons or families earning not more than sixty
percent (60%) of the then current Area Median Income, provided that such persons or families
also meet the requirements set forth in Section 406 of this Agreement. Notwithstanding the
foregoing, beginning on the date that is twenty (20) years the date all relevant Project completion
data is entered into the Department of Housing and Urban Development's ("HUD") Integrated
Disbursement and Information System, then with respect to the sale of the Affordable Units or
Accessory Dwelling Units, "Eligible Persons" shall mean persons or families earning not more
than one hundred twenty percent (120%) of the then current Area Median Income, provided that
such persons or families also meet the requirements set forth in Section 406 of this Agreement.
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"Escrow" means the escrow depository and disbursement services to be performed by
Escrow Agent pursuant to the provisions of this Agreement.
"Escrow Agent" means Chicago Title Company or another title insurance company
mutually selected by the parties hereto.
"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 Property is located, and of any other political subdivision, agency
or instrumentality exercising jurisdiction over CDC -HA, Habitat, SDCLT or the Property.
"Ground Leases" (or individually "Ground Lease") means the six (6) 99-year ground leases
(one for each of the six (6) Affordable Units), in forms agreed to by Habitat, SDCLT and CDC -
HA, to be executed by SDCLT and the purchasers of each of the Affordable Units and recorded
against each of the Affordable Lots. Notwithstanding the foregoing, if Habitat or SDCLT elects
to sell the Accessory Dwelling Units as individual for -sale units, then "Ground Leases" shall mean
the twelve (12) 99-year ground leases (one for each of the six (6) Affordable Units and one for
each of the (6) Accessory Dwelling Units), in forms agreed to by Habitat, SDCLT and CDC -HA,
to be executed by SDCLT and the purchasers of each of the Affordable Units and each of the
Accessory Dwelling Units and recorded against each of the Affordable Lots.
"Habitat" means San Diego Habitat for Humanity, a California non-profit public benefit
corporation.
"Hazardous Materials" means any hazardous or toxic substance, material or waste which
is or becomes regulated by any local governmental authority, the State of California or the United
State Government. Provided, however, the term "Hazardous Materials" shall not include
substances typically used in the ordinary course of developing, operating and maintaining
apartment complexes in California or small amounts of chemicals, cleaning agents and the like
commonly employed in routine household uses in a manner typical of occupants in other similar
properties, provided that such substances are used in compliance with applicable laws.
"Individual Deeds of Trust" means the deeds of trust securing the CDC-HA's interest in
the Master Declaration, in forms approved by the CDC -HA in its sole discretion, to be executed
in favor of the CDC -HA by the Eligible Persons purchasing each of the Affordable Units or
Accessory Dwelling Units, if applicable, to be recorded as an encumbrance against the fee interest
in each of the Affordable Units.
"Master Declaration" means the declaration of covenants, conditions and restrictions, in
forms agreed to by Habitat, SDCLT and the CDC -HA, to be executed by Habitat and recorded
against the Property at the Closing. The authority to amend the Master Declaration on behalf of
the City and the CDC -HA shall be vested in the Executive Director of the CDC -HA or his or her
designee pursuant to the authority granted by Section 706 hereof.
"Master Deed of Trust" means the deed of trust, in a form agreed to by Habitat, SDCLT
and the CDC -HA, to be executed by Habitat and recorded against the Property at the Closing. The
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Master Deed of Trust shall secure this Agreement and the Master Declaration. Upon recordation
of each Individual Deed of Trust against an Affordable Lot, the Master Deed of Trust shall be
reconveyed with respect to such Affordable Lot. The Master Deed of Trust may be subordinated
to the Construction Deed of Trust. Any such subordination shall be in a form acceptable to the
CDC -HA in its sole discretion. The authority to amend the Master Deed of Trust on behalf of the
City and the CDC -HA shall be vested in the Executive Director of the CDC -HA or his or her
designee pursuant to the authority granted by Section 706 hereof.
"Maximum Rental Rate" shall be determined by the CDC -HA and shall not exceed 1/12th
of thirty percent (30%) of sixty percent (60%) of the Area Median Income, as adjusted for assumed
family size and utilities.
"Maximum Sales Price" shall be determined by the CDC -HA and shall equal the purchase
price which will result in a "Monthly Housing Cost" to the purchaser of an Affordable Unit or
Accessory Dwelling Unit, as applicable, which does not exceed 1/12th of thirty percent (30%) of
eighty percent (80%) of the Area Median Income, determined as of the date of the close of escrow,
assuming the purchaser will finance all of the purchase price of the Affordable Unit or Accessory
Dwelling Unit, as applicable, using a 30-year fixed -interest loan and will not make a down
payment. "Monthly Housing Cost" means all housing costs applicable to the Affordable Unit or
Accessory Dwelling Unit, as applicable, as determined by the CDC -HA, including, without
limitation, mortgage principal and interest, taxes, insurance, homeowners association fees and
assessments. Notwithstanding the foregoing, beginning on the date that is twenty (20) years the
date all relevant Project completion data is entered into the Department of Housing and Urban
Development's ("HUD") Integrated Disbursement and Information System, then with respect to
the sale of the Affordable Units or Accessory Dwelling Units, the "Maximum Sales Price" shall
mean shall be determined by the CDC -HA and shall equal the purchase price which will result in
a "Monthly Housing Cost" to the purchaser of an Affordable Unit or Accessory Dwelling Unit, as
applicable, which does not exceed 1/12th of thirty-five percent (35%) of one hundred ten percent
(110%) of the Area Median Income, determined as of the date of the close of escrow, assuming
the purchaser will finance all of the purchase price of the Affordable Unit or Accessory Dwelling
Unit, as applicable, using a 30-year fixed -interest loan.
"Project" means the six (6) Affordable Units, plus the six (6) Accessory Dwelling Units
and all other improvements to be constructed on the Property. Notwithstanding the foregoing, if
provision of the six (6) Accessory Dwelling Units is not reasonably feasible, as determined by the
Executive Director of the CDC -HA or his or her designee, then the definition of "Project," as set
forth herein shall be amended accordingly by the Executive Director of the CDC -HA or his or her
designee pursuant to the authority granted by Section 706 hereof.
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"Property" means that certain real property generally located at 405-419 West 18th Street
in the City of National City, which is more particularly described on Exhibit A attached hereto
"Scope of Construction" means a scope setting forth all construction work, including
without limitation, landscaping, flatwork and similar work, to be done with respect to development
of the Property and construction of the Project, which is approved by the CDC -HA in its sole
discretion.
"SDCLT" means San Diego Community Land Trust, a 501(c)(3) non-profit corporation.
200. Property.
201. Acquisition of the Property by Habitat.
201.1 Acquisition Closing and Purchase Price. Subject to all of the terms and
conditions of this Agreement, the CDC -HA shall sell the Property to Habitat, and Habitat shall
purchase the Property from the CDC -HA at the Closing. The purchase price shall be $1.00. At
the Closing, Habitat shall execute the Master Declaration and Master Deed of Trust in favor of the
CDC -HA, which shall secure Habitat's obligations under this Agreement, and cause the same to
be recorded against the Property senior to all monetary liens.
201.2 "As -Is," "Where -Is." The Property shall be conveyed to Habitat in an "as -
is" physical and environmental condition, with no warranty, express or implied, by the CDC -HA
as to the condition of any existing improvements, the soil, its geology, the presence of known or
unknown faults or Hazardous Materials or toxic substances, and it shall be the sole responsibility
of Habitat at its expense to investigate and determine the physical and environmental conditions.
Prior to the Closing, Habitat shall have the right to engage its own environmental consultant (the
"Environmental Consultant") and other consultants to make such investigations of the Property as
Habitat deems necessary, including any soils, geotechnical and other testing of the Property, and
the CDC -HA shall promptly be provided a copy of all reports and test results provided to Habitat
by the Environmental Consultant. It shall be the sole responsibility and obligation of Habitat to
take such action as may be necessary to place the physical and environmental conditions of the
Property in a condition entirely suitable for the purposes set forth in this Agreement.
201.3 Escrow. Promptly after the execution and delivery of this Agreement,
Habitat and the CDC -HA shall open an escrow ("Escrow") with Escrow Agent to facilitate the
Closing and conveyance of the Property from the CDC -HA to Habitat. Habitat shall pay all fees,
charges, and costs which arise from Escrow, including without limitation all title policy premiums
and documentary transfer taxes.
201.4 Closing Conditions for the Benefit of the CDC -HA. The CDC-HA's
obligation to transfer the Property to Habitat is conditioned upon satisfaction (or waiver) of each
and all of the conditions set forth in this Section 201.4 on or before the Closing Deadline. Any
such waiver shall be effective only if the same is (i) expressly waived in writing signed by the
CDC -HA or by email from the CDC -HA, and'(ii) delivered or emailed to Habitat and the Escrow
Agent. In the event that one or more of the conditions set forth in this Section 201.4 are not
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satisfied or expressly waived on or before the Closing Deadline, the CDC -HA (provided the CDC -
HA is not in default hereunder) may unilaterally terminate this Agreement by mailing or emailing
notice of conditional termination to Habitat and the Escrow Agent. After receipt of such notice of
conditional termination, Habitat shall have five (5) business days to cure any non -satisfaction of a
condition or other default specified in the notice of conditional termination. If such matter is
unsatisfied or cured prior to the expiration of such five (5) day period, then the Closing shall
proceed and the CDC -HA waives any right to damages or compensation with respect to the
unsatisfied condition. If such matter remains unsatisfied or the default remains uncured after the
expiration of such five (5) day period, then this Agreement shall terminate at the close of business
on such fifth (5th) day. Any such termination of this Agreement shall not release Habitat from
liability under this Agreement.
(a) No Default. Habitat is not in default in any of its obligations under
the terms of this Agreement and all representations and warranties of Habitat contained
herein shall be true and correct in all material respects.
(b) Attorneys' Fees. Habitat has paid prior to or will pay concurrently
with the Closing and all reasonable attorneys' fees incurred by the CDC -HA with respect
to the same.
(c) Master Declaration and Master Deed of Trust. Habitat has delivered
the fully -executed notarized Master Declaration and Master Deed of Trust to Escrow
Agent.
(d) Additional Documents. The deposit by Habitat into Escrow of all
other documents and instruments reasonably required by the Escrow Agent.
(e) Title Policy. Escrow Agent has confirmed and is prepare to issue a
title policy in favor of the CDC -HA in the amount of $100,000.00 insuring that the Master
Deed of Trust is senior to all monetary liens on the Property.
(f) Environmental Clearance. The Project has satisfactorily completed
any necessary the environmental reviews under 24 CFR Part 58 of the National
Environmental Policy Act (NEPA) and/or California Environmental Quality Act (CEQA).
The parties agree that the provision of any funds to the project is conditioned on the City
of National City's determination to proceed with, modify or cancel the project based on
the results of any necessary environmental review under NEPA and CEQA.
201.5 Closing Conditions for the Benefit of Habitat. Habitat's obligation to close
is conditioned upon satisfaction (or waiver) of each and all of the conditions set forth in this Section
201.5 on or before the Closing Deadline. Any such waiver shall be effective only if the same is
(i) expressly waived in writing signed by Habitat or by email from Habitat, and (ii) delivered or
emailed to the CDC -HA and Escrow Agent. In the event that one or more of the conditions set
forth in this Section 201.5 are not satisfied or expressly waived on or before the Closing Deadline,
Habitat (provided Habitat is not in default hereunder) may unilaterally terminate this Agreement
by mailing or emailing notice of conditional termination to the CDC -HA and Escrow Agent. After
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receipt of such notice of conditional termination, the CDC -HA shall have five (5) business days to
cure any non -satisfaction of a condition or other default specified in the notice of conditional
termination. If such matter is unsatisfied or cured prior to the expiration of such five (5) day
period, then the Closing shall proceed and Habitat waives any right to damages or compensation
with respect to the unsatisfied condition. If such matter remains unsatisfied or the default remains
uncured after the expiration of such five (5) day period, then this Agreement shall terminate at the
close of business on such fifth (5th) day. Any such termination of this Agreement shall not release
the CDC -HA from liability under this Agreement.
(a) No Default. The CDC -HA is not in default in any of its obligations
under the terms of this Agreement and all representations and warranties of the CDC -HA
contained herein shall be true and correct in all material respects.
(b) Grant Deed. The CDC -HA has deposited the duly executed and
acknowledged grant deed conveying the Property from the CDC -HA to Habitat into
Escrow.
(c) Additional Documents. The deposit by the CDC -HA into Escrow
of all other documents and instruments reasonably required by the Escrow Agent.
(d) FIRPTA. The deposit by the CDC -HA into Escrow of the CDC-
HA's affidavit that the CDC -HA is not a foreign person and is a "United States Person" as
such term is defined in Section 7761(a)(30) of the Internal Revenue Code of 1986, in the
form prescribed by federal regulations.
(e) FTB Form 590. The deposit by CDC -HA into Escrow of a duly
executed FTB Form 590 or other evidence that withholding is not required by the Revenue
and Taxation Code of California.
201.6 No Sale or Transfer of the Property. The qualifications and identity of
Habitat, and its principals, are of particular concern to the community and the CDC -HA. Habitat
acknowledges that it is because of such qualifications and identity that the CDC -HA is entering
into this Agreement with Habitat. Except as otherwise provided herein, Habitat shall not sell,
transfer or otherwise convey all or any portion of the Property without the prior written approval
of the CDC -HA, which approval may be withheld in the sole discretion of the CDC -HA. Any
sale, transfer or conveyance of all or any portion of the Property without the prior written approval
of the CDC -HA shall be void.
202. Subsequent Financing. Prior to completion of construction of the Project and the
sale of all of the Affordable Units (and each of the Accessory Dwelling Units if SDCLT elects to
sell the Accessory Dwelling Units), no secured loan, deed of trust, or encumbrance, except for the
Construction Deed of Trust shall be placed upon any portion of the Property, whether by
refinancing or otherwise, without first obtaining the express written consent of the CDC -HA.
203. Representations and Warranties.
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203.1 CDC -HA Representations and Warranties. CDC -HA represents and
warrants to Habitat that the CDC -HA 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 -HA
has full right, power and lawful authority to convey the Property as provided herein and the
execution, performance and delivery of this Agreement by CDC -HA has been fully authorized by
all requisite actions on the part of CDC -HA.
203.2 Habitat and SDCLT's Representations and Warranties. Habitat and SDCLT
each represents and warrants to the CDC -HA as follows:
(a) Authority. Each of Habitat and SDCLT is a California nonprofit
corporation. The persons executing this Agreement on behalf of Habitat and SDCLT have
all necessary authority to execute this Agreement on behalf of Habitat and SDCLT,
respectively, and this Agreement is a binding obligation of Habitat and SDCLT. Copies
of the Certificates of Good Standing for Habitat and SDCLT, will be delivered to the CDC -
HA within five (5) business days of final approval of the Agreement. Each of Habitat and
SDCLT will have full right, power and lawful authority to undertake all obligations as
provided in this Agreement.
(b) No Conflict. The execution, delivery and performance of Habitat's and
SDCLT's obligations under this Agreement will not constitute a default or a breach under
any contract, agreement or order to which either of them is a party or by which it is bound.
(c) No Bankruptcy. Neither Habitat nor SDCLT is the subject of a bankruptcy
proceeding.
204. Precautions After Closing. From and after the Closing, Habitat shall take all
necessary precautions to prevent the release in, on or under the Property of any Hazardous
Materials. Such precautions shall include compliance with all Governmental Requirements with
respect to Hazardous Materials. In addition, Habitat 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.
205. Required Disclosures After Closing. From and after the Closing, Habitat shall
notify CDC -HA, and provide the CDC -HA with a copy or copies, of all environmental permits,
disclosures, applications, entitlements or inquiries relating to the Property, 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 Requirements relating to Hazardous Materials and underground
tanks. Habitat shall report to the CDC -HA, as soon as possible after each incident, any unusual or
potentially important incidents with respect to the environmental condition of the Property. In the
event of a release of any Hazardous Materials into the environment, Habitat shall, as soon as
possible after the release, deliver to the CDC -HA a copy of any and all reports relating thereto and
copies of all correspondence with governmental agencies relating to the release. Upon request,
Habitat shall deliver to the CDC -HA a copy or copies of any and all other environmental
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entitlements or inquiries relating to or affecting the Property 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.
206. Indemnity. From and after the Closing, Habitat agrees to, and from and after
recordation of the Ground Lease, Habitat and SDCLT each agrees to, indemnify, defend and hold
CDC -HA 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 Property, 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
Hazardous Materials on, under, in or about, to or from, the Property. 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 -HA or its employees, agents, representatives,
successors or assigns.
300. Development of the Property by Habitat.
301. CDC -HA Review and Approval of the Scope of Construction. Habitat shall prepare
and submit a Scope of Construction for the Project to be constructed on the Property to the CDC -
HA for review and approval. Exactly one (1) Affordable Unit shall be constructed on each
Affordable Lot. Notwithstanding the foregoing, if Habitat or SDCLT elects to sell the Accessory
Dwelling Units as individual for -sale units, then "Affordable Lot" shall mean each of the twelve
(12) legal lots which then comprise the Property. In such event, Developer shall construct one (1)
Affordable Unit or one (1) Accessory Dwelling Unit, as applicable, on each of the twelve (12)
Affordable Lots. The CDC -HA shall have the right to review and approve or disapprove all aspects
of the Scope of Construction. Habitat acknowledges and agrees that the CDC -HA is entitled to
approve or disapprove the Scope of Construction in order to satisfy the CDC-HA's obligation to
promote the sound construction and redevelopment of the Property, 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, including
but not limited to the residents of the Property. Habitat and SDCLT shall not be entitled to any
monetary damages or compensation as a result of the CDC-HA's disapproval or failure to approve
or disapprove the Scope of Construction.
302. Standards for Disapproval. The CDC -HA shall have the right to disapprove in its
sole discretion any of the Scope of Construction, as set forth in Section 301, above, including
without limitation if the same do not conform to this Agreement or are otherwise incomplete. In
the event the Scope of Construction is not approved, the CDC -HA shall state in writing provided
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to Habitat the reasons for disapproval. Habitat, upon receipt of notice of disapproval from the
CDC -HA, shall revise such portions and resubmit the revised Scope of Construction to the CDC -
HA for approval. The CDC -HA and Habitat agree to work together in good faith to resolve any
disagreements and disputes regarding the Scope of Construction.
303. Revisions. If Habitat desires to propose any revisions to the CDC -HA -approved
Scope of Construction after approval, Habitat shall submit such proposed changes to the CDC -
HA. If Scope of Construction, as modified by the proposed changes, generally and substantially
conforms to the requirements of the Scope of Construction and this Agreement, the CDC -HA shall
review the proposed changes and notify Habitat in writing within thirty (30) days after submission
to the CDC -HA whether the proposed change is approved or disapproved. The CDC-HA's
Executive Director is authorized to approve changes to the Scope of Construction. Provided,
however, the CDC -HA shall have no obligation to approve any change from the basic use of the
Property for anything other than affordable housing.
304. Defects in Plans. The CDC -HA shall not be responsible or liable in any way, either
to Habitat or to any third parties, for any defects in the Scope of Construction, or for any structural
or other defects in any work done according to the approved Scope of Construction, or for any
delays caused by the review and approval processes established by this Section 300. Habitat and
SDCLT shall hold harmless and indemnify CDC -HA, 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 Property, including
without limitation any defects in the Scope of Construction, violation of any laws, and for defects
in any work done according to the approved Scope of Construction or for defects in work
performed by Habitat or any contractor or subcontractor of Habitat.
305. Land Use Approvals. Before commencement of the Scope of Construction work
or any works of improvement at the Property, Habitat shall, at Habitat'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 Scope of Construction work by the City or any other governmental agency
affected by such rehabilitation, construction or work. Neither CDC -HA, nor the City shall be
responsible in any way for, the processing of Habitat'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.
306. Deadline for Completion of the Scope of Construction. The Scope of Construction
shall be completed not later than twenty-four (24) months from the Closing. Failure to complete
all of the Scope of Construction shall, inter alia, be a default by Habitat, entitling the CDC -HA to
exercise all of its rights and remedies, including without limitation foreclosure of the Master Deed
of Trust.
307. Cost of Project. All costs whatsoever of the Project shall be borne by Habitat,
including without limitation the cost of planning, designing, developing and constructing the six
(6) Affordable Units in accordance with the Scope of Construction.
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308. Insurance Requirements. Habitat shall take out and maintain during the terms of
construction of the Project, and shall cause its contractor and subcontractors to take out and
maintain until completion of the Scope of Construction, a comprehensive general liability policy
in the amount of not less than $4,000,000 combined single limit policy and not less than $1,000,000
combined single limit policy for subcontractors; provided that the use of umbrella/excess liability
policies to achieve such limits will be acceptable, and a comprehensive automobile liability policy
in the amount of $1,000,000 combined single limit, or such other policy limits as the CDC -HA
may approve at its discretion, including contractual liability, as shall protect Habitat, the City and
CDC -HA from claims for such damages. Such policy or policies shall be written on an occurrence
form. Habitat shall also furnish or cause to be furnished to the CDC -HA evidence satisfactory to
the CDC -HA that Habitat, and any contractor with whom it has contracted for the performance of
work on the Property or otherwise pursuant to this Agreement, carries workers' compensation
insurance as required by law. Habitat shall furnish a certificate of insurance countersigned by an
authorized agent of the insurance carrier on a form approved by the CDC -HA setting forth the
general provisions of the insurance coverage. This countersigned certificate shall name the City
and CDC -HA 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 the City and CDC -HA 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 Habitat shall be primary insurance and not be contributing with any insurance
maintained by the City of CDC -HA, 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 -HA. The required certificates shall be furnished by Habitat prior to the Closing.
309. Rights of Access. Habitat and SDCLT each agrees to allow the CDC -HA and its
representatives to access the Property to review and inspect each of their activities under this
Agreement as the CDC -HA shall require. The CDC -HA shall monitor Habitat's and SDCLT's
activities without liability for said inspection and review.
310. Compliance With Laws. Habitat and SDCLT each represents and warrants that
during the term of this Agreement that it will comply with all Federal Davis Bacon and State
prevailing wage requirements to the extent the same are applicable to the work. Habitat shall carry
out the design and completion of the Scope of Construction in conformity with all applicable laws,
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. Habitat and SDCLT each hereby agrees to carry
out development, rehabilitation, construction and operation of the Property, including, without
limitation, any and all public works (as defined by applicable law), in conformity with all
applicable local, state and federal laws. Habitat and SDCLT each hereby expressly acknowledges
and agrees that neither the City nor the CDC -HA has ever previously affirmatively represented to
Habitat, SDCLT or any of its contractors in writing or otherwise, in a call for bids or otherwise,
12
that the work to be covered by the bid or contract is or is not a "public work," as defined in Section
1720 of the Labor Code. Habitat and SDCLT each hereby agrees that each of them 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. Habitat and
SDCLT each hereby agrees that each 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. Habitat
and SDCLT each hereby agrees that each of them shall have the obligation, at their 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.
Habitat and SDCLT shall each indemnify, protect, defend and hold harmless the City, the CDC -
HA and their respective officers, employees, contractors and agents, with counsel reasonably
acceptable to the City and the CDC -HA, from and against any and all loss, 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 completion
of the Scope of Construction, 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 Habitat or SDCLT 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 Habitat or SDCLT 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 Habitat or SDCLT 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 Habitat or SDCLT 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. It is agreed by the parties that, in connection with the development,
rehabilitation, construction and operation of the Project and the Property, including, without
limitation, any public work (as defined by applicable law), Habitat and SDCLT 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.
Notwithstanding the foregoing, it is expressly agreed and understood that SDCLT is not
responsible for any breach or failure to comply with the State or Federal laws referred to above
during any period prior to the transfer of the Project to SDCLT.
311. Nondiscrimination in Employment. Habitat and SDCLT each certifies and agrees
that all persons employed or applying for employment by it, its affiliates, subsidiaries, or holding
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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 11135, 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. Habitat and SDCLT shall each allow representatives of the CDC -HA access to its
employment records related to this Agreement during regular business hours to verify compliance
with these provisions when so requested by the CDC -HA.
312. Taxes and Assessments. Habitat shall pay prior to delinquency all ad valorem real
estate taxes and assessments on the Property. Habitat shall remove or have removed any levy or
attachment made after the Closing on the Property or any part thereof, or assure the satisfaction
thereof within a reasonable time.
313. Liens and Stop Notices. Habitat and SDCLT shall not allow to be placed on the
Property or any part thereof any lien or stop notice. If a claim of a lien or stop notice is given or
recorded affecting the Property, Habitat and SDCLT shall, within thirty (30) days of such
recording or service or within five (5) days of the CDC-HA's demand, whichever last occurs:
(a) pay and discharge the same;
(b) effect the release thereof by recording and delivering to the CDC -HA a
surety bond in sufficient form and amount as approved by the CDC -HA in its sole
discretion; or
(c) provide the CDC -HA with other assurance which the CDC -HA 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 the CDC -HA from the effect of such lien or bonded
stop notice.
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314. Financing of the Project.
314.1 No Encumbrances Except Mortgages or Deeds of Trust. Mortgages and
deeds of trust may be recorded against all or any part of the Property only with the CDC-HA's
prior written approval, and only for the purpose of securing loans of funds to be used for financing
the Scope of Construction work, and any other purposes deemed necessary and appropriate by the
CDC -HA in connection with the Project. Habitat shall notify the CDC -HA in advance of the
execution or recordation of any mortgage or deed of trust. Neither Habitat, nor SDCLT, shall enter
into any mortgage or deed of trust for financing the Project, Property or any Affordable Unit
without the prior written approval of the CDC -HA, which approval the CDC -HA agrees to give if
any such mortgage or deed of trust for financing is given to an institutional lender and the same is
necessary for completion of the Scope of Construction. The CDC -HA agrees that the Master Deed
of Trust shall be subordinated to the Construction Deed of Trust, such subordination shall be via
a subordination agreement in a form acceptable to the CDC -HA in its sole discretion.
314.2 Right of CDC -HA to Cure Mortgage or Deed of Trust Default. In the event
of a mortgage or deed of trust default or breach by Habitat or SDCLT, Habitat or SDCLT,
respectively, shall immediately deliver to the CDC -HA a copy of any mortgage holder's notice of
default. The CDC -HA shall have the right but not the obligation to cure the default. In such event,
the CDC -HA shall be entitled to reimbursement from Habitat or SDCLT, as applicable, of all costs
and expenses incurred by the CDC -HA in curing such default, including without limitation
attorneys' fees.
315. Occupancy Monitoring and Inspection Fees; Records and Reports. Each year
during the terms of each of the Individual Deeds of Trust, SDCLT shall pay to the CDC -HA an
affordable housing occupancy monitoring and inspection fee of $201 per unit per year, escalating
at 3.5% annually, such fee may be waived by the Executive Director of the CDC -HA or his or her
designee, provided SDCLT or Habitat fulfills all monitoring requirements with respect to the HUD
HOME program and California Redevelopment Law, including, without limitation submission of
all documentation and back-up materials required to the City, CDC -HA, HUD and the State of
California. SDCLT shall supply CDC -HA, annually, on May 31', of each year during the term of
this Agreement, for the immediately prior calendar year, with such records and reports as are
required and are requested by the CDC -HA to aid it in complying with its reporting and record
keeping requirements.
316. Flood Insurance. Habitat represents, warrants, and certifies, pursuant to 24 CFR
92.358, that no portion of the Property, is located within a Flood Plain or Flood Hazard Zone or
Area, as indicated on a FEMA Map; or that the Property is located within a community
participating in the National Flood Insurance Program and Habitat agrees to purchase and maintain
flood insurance for the duration of the term of this Agreement.
317. Accessibility Standards. Habitat 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.
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400. Post Construction.
401. Conveyance from Habitat to SDCLT After Completion of Construction. Upon
completion of construction of the Project, including without limitation completion of all of the
Scope of Construction and issuance of certificates of occupancy for all of the Project, Habitat shall
sell the Property to SDCLT, and SDCLT shall purchase the Property from Habitat. The purchase
price shall be $1.00.
402. Ground Lease and Financing of Affordable Units. SDCLT shall cause each of the
Eligible Persons acquiring an Affordable Unit (and each of the Eligible Persons acquiring an
Accessory Dwelling Unit if SDCLT or Habitat elects to sell the Accessory Dwelling Units) to: (i)
execute and notarize a 99-year Ground Lease and cause such Ground Lease to be recorded against
the Affordable Lot being acquired by such Eligible Persons; (ii) execute a promissory note; (iii)
execute and notarize a deed of trust in favor of the first position lender and cause the same to be
recorded against the ground lease interest in the Affordable Lot being acquired by such Eligible
Persons; and (iv) execute and notarize an Individual Deed of Trust in favor of the CDC -HA and
cause such Individual Deed of Trust to be recorded against the ground lease interest in the
Affordable Lot being acquired by such Eligible Persons.
403. No Conveyance in Excess of the Maximum Sales Price. During the period
commencing on the closing of the sale of each Affordable Unit (and the closing of the sale of each
Accessory Dwelling Unit if SDCLT or Habitat elects to sell the Accessory Dwelling Units) and
continuing for forty-five (45) years thereafter, no Affordable Lot, Affordable Unit or Accessory
Dwelling Unit shall be ground leased to a prospective purchaser or occupied by any person unless
and until the CDC -HA has verified the prospective purchaser is an Eligible Person, and the sales
price of the Affordable Lot and Affordable Unit or Accessory Dwelling Unit does not exceed the
Maximum Sales Price. No persons, including without limitation Habitat and SDCLT, may
cumulatively receive any amount of money and/or other consideration upon the transfer, ground
lease or conveyance of all of any portion of any Affordable Lot, Affordable Unit or Accessory
Dwelling Unit in excess of the Maximum Sales Price.
404. Fixed -Interest Loans. Each Affordable Unit (and each Accessory Dwelling Unit if
SDCLT or Habitat elects to sell the Accessory Dwelling Units) shall be financed only with a 30-
year fixed -interest loan to the Eligible Persons acquiring each Affordable Lot and Affordable Unit.
405. Rent and Occupancy Restriction of the Accessory Dwelling Units. If SDCLT and
Habitat elect not to sell the Accessory Dwelling Units, then during the period commencing on the
closing of the sale of each Affordable Unit and continuing for fifty-five (55) years thereafter, each
Accessory Dwelling Unit shall be rented to an Eligible Person at a monthly rental rate which does
not exceed the Maximum Rental Rate.
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406. Additional Restrictions on Eligible Persons.
406.1 No Full -Time Students. The term Eligible Person shall not include any
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.
406.2 No Student Dependents. Notwithstanding the provisions of subparagraph
406.1, the term Eligible Person 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)
resides in the same unit.
406.3 No Owners of Real Property. The term Eligible Person shall not include
any person or any household comprised of one or more persons who own any other real property
at the close of escrow of the Affordable Unit.
406.4 Liquid Asset Limitation. The term Eligible Person 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 include retirement funds which are not readily accessible or which cannot be accessed by
the buyer without the buyer incurring a penalty.
406.5 Income of Co -Purchasers. The income of all co -purchasers and/or
occupants shall be taken into account in determining whether a household is comprised of Eligible
Persons.
406.6 No Relationship With Habitat or SDCLT. The term Eligible Person shall
not include any person employed by Habitat, SDCLT or of any individuals who are members,
principals, executives, directors, partners or shareholders in Habitat, SDCLT or in any entity
having an ownership interest in Habitat or SDCLT or in the Property or any relative (by blood or
marriage) of any of the foregoing persons.
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500. Covenants and Restrictions.
501. Affordable Units. Habitat and SDCLT each covenants and agrees for itself, its
successors, assigns, and every successor in interest to the Property, or any part thereof, that Habitat
or SDCLT (during the period such entity owns the Property) shall comply with this Agreement
and the Master Declaration upon the Closing and for 55 years thereafter.
502. Maintenance Covenants. Habitat and SDCLT each represents and warrants that
after completion of Scope of Construction, the Property and all of the Affordable Units and
Accessory Dwelling Units shall continually be maintained in a decent, safe and sanitary condition,
and in good repair as described in 24 C.F.R. §5.703, and in a manner which satisfies the Uniform
Physical Conditions Standards promulgated by the Department of Housing and Urban
Development (24 C.F.R. §5.705), as such standards are interpreted and enforced by the CDC -HA
under its normal policies and procedures. Habitat and SDCLT each warrants that all construction
work shall meet or exceed the applicable local codes and construction standards, including zoning
and building codes of the City of National City as well as the provisions of the Model Energy Code
published by the Council of American Building Officials. Habitat and SDCLT each hereby
consents to periodic inspection by the CDC-HA's designated inspectors and/or designees during
regular business hours, including the Code Enforcement Agents of the City, to assure compliance
with all applicable zoning, building codes, regulations and property standards.
503. Obligation to Refrain from Discrimination.
503.1 State and Federal Requirements. Habitat and SDCLT shall each, at all times
during the term of this Agreement, comply with all of the affirmative marketing procedures
adopted by the CDC -HA. Habitat and SDCLT shall each maintain records to verify compliance
with the applicable affirmative marketing procedures and compliance. Such records are subject to
inspection by the CDC -HA during regular business hours upon five (5) days written notice.
503.2 Additional Requirements. Habitat and SDCLT each 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.
503.3 Fair Housing Laws. All activities carried out by Habitat, SDCLT and/or
agents of either of them shall be 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,
18
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 Housing 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 Habitat: Fair Employment and Housing Act, Unruh
Civil Rights Act of 1959, Ralph Civil Rights Act of 1976, and Civil Code Section 54.1.
504. Nondiscrimination Covenants. Habitat and SDCLT each 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 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
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall
Habitat, SDCLT or any person claiming under or through either of them 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 Property. The foregoing covenants shall run with the land. 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, 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."
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(c) Contracts. In contracts for the rental, lease or sale of the Property: "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."
505. Effect of Violation of the Terms and Provisions of this Agreement. The CDC -HA
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
the CDC -HA has been, remains or is an owner of any land or interest therein in the Property. The
CDC -HA 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.
600. Defaults and Remedies.
601. Default Generally. Failure by the CDC -HA, Habitat or SDCLT 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
alleged Default. 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: (i)
such alleged Default is cured thirty (30) days from receipt of such written notice: or (ii) if the
alleged Default is such that it is not capable of being cured within thirty (30) days, but corrective
action is initiated within thirty (30) days and the allegedly defaulting party diligently and in good
faith works to effect a cure as soon as possible.
602. 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, downtown branch, or in the District of the United States District Court in the County
of San Diego.
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603. Entry and Vesting of Title in CDC -HA Prior to Completion of Construction.
603.1 Right of Reentry. In addition to all other rights and remedies the CDC -HA
may have at law or in equity, the CDC -HA has the right, at its election, to enter and take possession
of the Property, and all improvements thereon (whether by foreclosure of the Master Deed of Trust
or otherwise), and terminate and revest the Property in the CDC -HA if after the Closing:
(a) Habitat fails to start the Scope of Construction work as required by this
Agreement within one (1) year of the Closing or for a period of thirty (30) days after written
notice thereof from CDC -HA; or
(b) Habitat abandons or substantially suspends the Scope of Construction work
required by this Agreement for a period of thirty (30) days after written notice thereof from
CDC -HA; or
(c) Habitat transfers or suffers any involuntary transfer of the Property or any
part thereof in violation of contrary to the provisions of this Agreement; or
(d) SDCLT fails to ground lease the six (6) Affordable Units (and six (6)
Accessory Dwelling Unit if SDCLT or Habitat elects to sell the Accessory Dwelling Units)
as set forth in Section 500 above, thirty (30) days after written notice thereof from CDC -
HA.
603.2 Limitations on Right of Entry. Such right to enter and vest shall be subject
to and be limited by and shall not defeat, render invalid or limit any mortgage or deed of trust
permitted by this Agreement that is senior to the Master Deed of Trust.
603.3 Termination of Right of Entry. The CDC-HA's right to enter and take
possession of the Property and all improvements thereon, and terminate and revest the Property in
the CDC -HA, shall terminate upon the timely completion of the Scope of Construction.
604. 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.
605. 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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700. General Provisions.
701. Notices, Demands and Communications Between the Parties. All notices under
this Agreement shall be in writing and sent (a) by certified or registered U.S. mail, return receipt
requested, (b) overnight by a nationally recognized overnight courier such as UPS Overnight or
FedEx, or (c) by personal delivery. All notices shall be effective upon receipt (or refusal to accept
delivery). All notices shall be delivered to the following addresses or such other addresses as
changed by any party from time to time by written notice to the other parties hereto.
To CDC -HA:
To Habitat:
To SDCLT:
Community Development Commission -
Housing Authority of the City of National City
1243 National City Boulevard
National City, CA 91950
Attention: Executive Director
San Diego Habitat for Humanity
8182 Mercury Court
San Diego, CA 92111
San Diego Community Land Trust
P.O. Box 263
Lemon Grove, CA 91946
702. 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 be in
Default, and all performance and other dates specified in this Agreement shall be extended, where
delays or Defaults are due to: war; insurrection; 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 -HA and Habitat.
703. Transfers of Interest in Property or Agreement. The qualifications and identity of
Habitat and SDCLT are of particular concern to the CDC -HA. It is because of those qualifications
and identity that the CDC -HA has entered into this Agreement with Habitat and SDCLT. Except
as otherwise provided in this Agreement, during the period commencing on the closing of the sale
of each Affordable Unit and continuing for fifty-five (55) years thereafter, no voluntary or
involuntary successor in interest to Habitat or SDCLT shall acquire any rights or powers under
this Agreement, nor shall Habitat or SDCLT make any total or partial sale, transfer, conveyance,
assignment, subdivision, refinancing or lease of the whole or any part of the Property or the
improvements thereon without prior written approval of the CDC -HA. Except as otherwise
22
provided in this Agreement, any proposed total or partial sale, transfer, conveyance, assignment,
subdivision, refinancing or lease of the whole or any part of the Property or the improvements
thereon, will entitle CDC -HA to its right of reentry and revesting as set forth in Section 603 hereof.
For the reasons cited above, Habitat and SDCLT each represents and agrees for itself, each partner
and any successor in interest to itself that without the prior written approval of the CDC -HA, there
shall be no significant change in the ownership of Habitat or SDCLT or in the relative proportions
thereof, or with respect to the identity of the parties in control of Habitat or SDCLT or the degree
thereof, by any method or means. Habitat or SDCLT, as applicable, shall promptly notify the
CDC -HA of any and all changes whatsoever in the identity of the parties in control of Habitat or
SDCLT or the degree thereof, of which it or any of its officers have been notified or otherwise
have knowledge or information. Any change (voluntary or involuntary) in the composition,
management or control of Habitat or SDCLT shall be a Default. All of the terms, covenants and
conditions of this Agreement shall be binding upon Habitat and SDCLT and their permitted
successors and assigns. Whenever the term "Habitat" or "SDCLT" is used in this Agreement, such
term shall include any other permitted successors and assigns as herein provided.
704. Non -Liability of Officials and Employees. No member, official or employee of the
City or CDC -HA shall be personally liable to Habitat or SDCLT, 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
Habitat or its successors, or on any obligations under the terms of this Agreement.
705. Relationship Between the Parties. It is hereby acknowledged that the relationship
between the CDC -HA, Habitat and SDCLT is that of independent contractors and not that of a
partnership or joint venture and that the CDC -HA, Habitat and SDCLT shall not be deemed or
construed for any purpose to be the agent of the other. Habitat and SDCLT agree to indemnify,
hold harmless and defend the CDC -HA from any claim made against the CDC -HA arising from a
claimed relationship of partnership or joint venture between the CDC -HA, Habitat and SDCLT.
706. CDC -HA Amendment of Agreement and Approvals and Actions. Whenever a
reference is made herein to an action or approval to be undertaken by the CDC -HA, the Executive
Director of the CDC -HA or his or her designee is authorized to act on behalf of the CDC -HA.
Furthermore, the Executive Director of the CDC -HA or his or her designee is authorized to amend
this Agreement, the Master Declaration and the Master Deed of Trust, and approve any and all
alterations, amendments or changes to the Project, without further authorization from the City
Council of the City of National City, provided that after such amendment, alteration or change the
Property continues to be restricted as affordable housing.
707. Counterparts. This Agreement may be signed in multiple counterparts which, when
signed by all parties, shall constitute a binding agreement.
23
708. 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 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.
709. No Real Estate Brokerage Commissions. The CDC -HA, Habitat and SDCLT each
represent and warrant to the other that no broker or finder is entitled to any commission or finder's
fee in connection with Habitat's or SDCLT's acquisition of the Property. 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.
710. 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.
711. 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.
712. 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.
713. No Waiver. A waiver by either party of a breach of any of the covenants, conditions
or agreements under this Agreement to be 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.
714. Modifications. Any amendment, 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 (any amendment, alteration, change or modification of this Agreement on
behalf of the CDC -HA, including without limitation changes to the economic terms of this
Agreement and its exhibits, shall be made on behalf of the CDC -HA by the Executive Director of
the CDC -HA in such Executive Director's sole discretion).
715. 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
24
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.
716. 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 be done by a particular time during a day, that
time shall be Pacific Time Zone time.
717. 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.
718. Time of Essence. Time is expressly made of the essence with respect to the
performance by the CDC -HA and Habitat of each and every obligation and condition of this
Agreement.
719. 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.
720. Conflicts of Interest. No member, official or employee of the City or the CDC -HA
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.
721. Exhibits and Recitals Incorporated. All exhibits 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.
25
722. Applicable Law. The laws of the State of California shall govern the interpretation
and enforcement of this Agreement.
723. 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 -HA 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 -HA:
Community Development Commission -Housing Authority of the City of National City
By:
Leslie Deese, Executive Director
APPROVED AS TO FORM:
Angil P Morris -Jones
CD . A General Counsel
By:
R ''• erto Contreras
Deputy CDC -HA General Counsel
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
26
HABITAT:
San Diego Habitat for Humanity, a California non-profit public benefit corporation
By: kAl°
Print NameQuA-- Plam^
Its: VW Cer,
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
SDCLT:
San Diego Community Land Trust, a 501(c)(3) non-profit corporation
By:
Prin JMAN h T I Az -
Its: CCUTIVE .'D1rz XL1Z)(L
DID v
28
EXHIBIT A
Property Legal Description
The land referred to herein is situated in the State of California, County of San Diego and described
as follows:
LOTS 13, 14 AND 15 IN BLOCK 146 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.
APN: 559-085-08
29
RESOLUTION NO. 2018 — 68
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION -HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY
AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE A
DISPOSITION AND DEVELOPMENT AGREEMENT WITH SAN DIEGO
HABITAT FOR HUMANITY AND SAN DIEGO COMMUNITY LAND TRUST
FOR THE DEVELOPMENT OF SIX AFFORDABLE HOMEOWNERSHIP
UNITS UNDER A COMMUNITY LAND TRUST WITH THE ELECTION
TO DEVELOP SIX ADDITIONAL AFFORDABLE ACCESSORY DWELLING
UNITS AT 405-419 WEST 18TH STREET IN NATIONAL CITY
WHEREAS, the Community Development Commission -Housing Authority
("CDC -HA") owns that certain real property commonly known as 405-419 West 18th Street in
the City of National City ("Property"); and
WHEREAS, San Diego Habitat for Humanity ("Habitat"), a 501(c)3 nonprofit
corporation, currently has a HOME CHDO (Community Housing Development Organization)
Agreement with the City of National City ("City") to rehabilitate or develop homeownership
opportunities for low-income households in the City; and
WHEREAS, Habitat has partnered with San Diego Community Land Trust
("SDCLT"), a 501(c)3 nonprofit corporation, to provide a unique development opportunity for the
Property using a Community Land Trust model that would create six (6) affordable units for sale
with the election to include an additional (6) affordable accessory dwelling units that could be
rented or sold; and
WHEREAS, the project consists of six (6) affordable single-family residential
dwelling units ("Affordable Units"), plus potentially six (6) accessory dwelling units, as defined in
California Government Code section 65852.2 ("Accessory Dwelling Units"), and all other
improvements to be constructed on the Property ("Project"); and
WHEREAS, CDC -HA, Habitat, and SDCLT desire to establish conditions for: (i)
the CDC -HA to transfer fee title to the Property to Habitat; (ii) Habitat to construct the Project on
the Property; (iii) Habitat to transfer the Property to SDCLT after completion of the Project; and
(iv) SDCLT to ground lease each of the Affordable Units (and each of the Accessory Dwelling
Units if SDCLT elects to sell the Accessory Dwelling Units) to eligible persons for an affordable
price.
NOW, THEREFORE, BE IT RESOLVED that the Community Development
Commission -Housing Authority of the City of National City hereby authorizes the Executive
Director to execute a Disposition and Development Agreement with San Diego Habitat for
Humanity and San Diego Community Land Trust for the development of six affordable
homeownership units under a Community Land Trust with the election to develop six additional
affordable accessory dwelling units at 405-419 West 18' Street in National City. Said
Disposition and Development Agreement is on file in the office of the City Clerk.
[Signature Page to Follow]
Resolution No. 2018 — 68
Page Two
PASSED and ADOPTED this 2nd day of October, 2018.
Morrison, Chairman
ATTEST:
ILc.
Leslie Deese, Secretary
APPROVED AS TO FO
An•."'orris=J. es
G =ral Counsel
Passed and adopted by the Community Development Commission -Housing Authority of
the City of National City, California, on October 2, 2018 by the following vote, to -wit:
Ayes: Commissioners Cano, Mendivil, Morrison, Rios, Sotelo-Solis.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Chairman, Housing Authority
LESLIE DEESE
Secretary, Housing Authority
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2018-68 of the Community Development Commission -Housing
Authority of the City of National City, California, passed and adopted on
October 2, 2018.
TOit- Secretary, Housing Authority
By:
Deputy
C 2-ois-sit/
CITY OF NATIONAL CITY, CALIFORNIA
COMMUNITY DEVELOPMENT COMMISSION -HOUSING AUTHORITY
COUNCIL AGENDA STATEMENT
ETING DATE: October 2, 2018
AGENDA ITEM NO. 10
ITEM TITLE:
Resolution of the Community Development Commission -Housing Authority of the City of National City
authorizing the Executive Director to execute a Disposition and Development Agreement with San
Diego Habitat for Humanity and San Diego Community Land Trust for the development of six
affordable homeownership units under a Community Land Trust with the election to develop six
additional affordable accessory dwelling units at 405-419 West 18th Street in National City.
PREPARED BY: Carlos Aguirre, Housing & Econ. Dev. Mgr. DEPARTMENT: H using 8f Econ. Dev.
PHONE: 619-336-4391
EXPLANATION:
Please see Attachment No. 1.
APPROVED Bk
FINANCIAL STATEMENT: APPROVED:
ACCOUNT NO. APPROVED:
Please see the financial statement under Attachment No. 1.
MIS
ENVIRONMENTAL REVIEW:
A CEQA and NEPA review will be completed as necessary before the property is transferred to the
Developer.
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Adopt the Resolution.
BOARD / COMMISSION RECOMMENDATION:
N/A
FTACHMENTS:
1. Staff Report
2. Development and Disposition Agreement
3. Master Declaration
tecaohci7;, hl7 -
Attachment No. 1
COMMUNITY DEVELOPMENT COMMISSION -HOUSING AUTHORITY
OF THE CITY OF NATIONAL CITY
STAFF REPORT
Resolution of the Community Development Commission -Housing Authority of the City of
National City authorizing the Executive Director to execute a Disposition and Development
Agreement with San Diego Habitat for Humanity and San Diego Community Land Trust for
the development of six affordable homeownership units under a Community Land Trust
with the election to develop six additional affordable accessory dwelling units at 405-419
West 18th Street in National City.
Background
The Community Development Commission of the City of National City ("CDC") purchased
a 8,771 square foot lot ("Property") located at 405-419 West 18th Street in National City for
$360,000 using Low and Moderate Housing Funds. The Property is currently an asset of
the Community Development Commission -Housing Authority of the City of National City.
Since the Property was purchased with the Low and Moderate Housing Fund, the property
must be used to develop affordable housing for low and moderate income households.
San Diego Habitat for Humanity ("Habitat") and San Diego Community Land Trust
("SDCLT") propose to develop the property with six affordable homeownership units that
will initially target households at or below 80% of Area Median Income ("AMI"). After the
initial 20 year HOME affordability period, the SDCLT would target families at or below 80%
AMI at resale of the units but could sell the units to a household at or below 120% AMI, if
necessary. Habitat will also consider incorporating accessory dwelling units that can be
rented to households at or below 60% AMI, or if sold, would sell to households at or below
80% AMI during the 20 year HOME affordability period. The property is also subject to a
45 year Low and Moderate Income Program affordability period which requires that units
be resold at or below 120% AMI but Habitat and SDCLT will continue to target households
at or below 80% AMI, if feasible.
San Diego Habitat for Humanity and San Diego Community Land Trust
The City of National City ("City") has periodically funded Habitat to acquire and rehabilitate
single family houses in disrepair. The rehabilitated houses are sold to First Time Home
Buyers at or below 80%AMI. Habitat for Humanity has completed rehabilitation on four units
since 2013 but two units remain to be rehabilitated or developed under the current HOME
CHDO (Community Housing Development Organization) Agreement with the City.
As home prices have risen, it has become less feasible to consider acquiring existing single
family units to rehabilitate or develop without providing additional subsidies per unit. Because
1
Attachment No. 1
HOME funds must be used in a timely manner, the City and Habitat met to consider
innovative ways to use the remaining HOME CHDO funding in National City. San Diego
Community Land Trust ("SDCLT") was consulted to discuss how a Community Land Trust
could help in continuing to provide affordable homeownership opportunities in National City.
SDCLT is a 501(c)3 non-profit whose mission is to create and steward permanently
affordable homeownership opportunities for low and moderate -income households that can't
otherwise afford to own a home and build equity in San Diego's extremely expensive housing
market using the Community Land Trust ("CLT") model.
The adopted 2013-2020 Housing Element for the City of National City considers the
Community Land Trust as a Program Goal (No. 22) that can be used to provide affordable
housing opportunities in National City. The pillars of the Community Land Trust Model
include:
• Community ownership of the land: SDCLT will retain ownership of the land which
removes the cost of the land from the speculative market.
o SDCLT homes are sold to low and moderate -income households subject to
a 99-year renewable & inheritable ground lease.
o Potential homebuyers must complete a homebuyer education course
reviewing the benefits and responsibilities of home ownership.
• Stewardship: SDCLT administers the ground leases ensuring that the homes are
properly maintained, owner -occupied, and SDCLT administers the resale process
to ensure that subsequent sales are made to income -qualified households.
o The ground lease includes resale restrictions ensuring that the home will
retain its affordability in perpetuity, while providing opportunities for wealth
accumulation, by limiting resale prices to changes in the Area Median
Income.
• Community participation and leadership: SDCLT by-laws call for 1/3 of its board
members to come from its home owners and another 1/3 from residents and
businesses in SDCLT project neighborhoods.
o New home owner and community board members will receive on -boarding
leadership training reviewing the rights and responsibilities as a non-profit
board member.
Financial Explanation and Staff Recommendation
In order to make the project financially feasible, Habitat will purchase the Property from
the CDC -HA for $1.00. Habitat will use HOME CHDO funds that have already been
awarded by the City in the amount of $245,116.45 and $162,336.41 in CHDO Proceeds
from previous HOME projects that is held in trust by Habitat. No additional subsidy will be
needed from the CDC -HA to complete the project. City staff recommends that the CDC -
HA authorize the Executive Director to execute the proposed Disposition and
Development Agreement with Habitat and SDCLT.
2
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between the
COMMUNITY DEVELOPMENT COMMISSION -
HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY
and
SAN DIEGO HABITAT FOR HUMANITY
and
SAN DIEGO COMMUNITY LAND TRUST
(405-419 West 18th Street)
1
DISPOSITION AND DEVELOPMENT AGREEMENT
(405-419 West 18th Street)
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is dated as
of the 18th day of September, 2018 by and between the Community Development Commission -
Housing Authority of the City of National City ("CDC -HA"), and San Diego Habitat for
Humanity, a California non-profit public benefit corporation ("Habitat"), and San Diego
Community Land Trust, a 501(c)(3) non-profit corporation ("SDCLT").
RECITALS
A. The CDC -HA owns that certain real property commonly known as 405-419 West
18th Street in the City of National City, which is more particularly described on Exhibit A hereto
("Property").
B. CDC -HA, Habitat and SDCLT desire by this Agreement to establish conditions for:
(i) the CDC -HA to transfer fee title to the Property to Habitat; (ii) Habitat to construct the Project,
as defined below, on the Property; (iii) Habitat to transfer the Property to SDCLT after completion
of the Project; and (iv) SDCLT to ground lease each of the Affordable Units (and each of the
Accessory Dwelling Units if SDCLT elects to sell the Accessory Dwelling Units), as defined
below, to Eligible Persons for an affordable price.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, CDC -HA, Habitat and SDCLT hereby agree as follows:
100. Definitions.
"Accessory Dwelling Units" means collectively, the six (6) accessory dwelling units, as
defined in California Government Code Section 65852.2, to be constructed on the Property (one
attached to each of the Affordable Units) whose occupancy and sales prices or rental rates are
restricted to Eligible Persons.
"Affordable Lot" means each of the six (6) legal lots which comprise the Property. Habitat
shall construct one (1) Affordable Unit on each of the six (6) Affordable Lots. Notwithstanding
the foregoing, if Habitat or SDCLT elects to sell the Accessory Dwelling Units as individual for -
sale units, then "Affordable Lot" shall mean each of the twelve (12) legal lots which then comprise
the Property. In such event, Developer shall construct one (1) Affordable Unit or one (1)
Accessory Dwelling Unit, as applicable, on each of the twelve (12) Affordable Lots.
"Affordable Units" means collectively, the six (6) single-family residential dwelling units
to be constructed on the Property whose sale, price and occupancy are restricted to Eligible
Persons.
2
"Agreement" means this Disposition and Development Agreement between CDC -HA,
Habitat and SDCLT.
"Area Median Income" means the area median income, as adjusted for family size, for the
San Diego -Carlsbad Metropolitan Statistical Area, established periodically by the U.S.
Department of Housing and Urban Development ("HUD") and published in the Federal Register.
In the event HUD ceases to publish an established Area Median Income as aforesaid, the CDC -
HA may, in its reasonable discretion, use any other reasonably comparable method of computing
Area Median Income and/or the Annual Housing Cost.
"CDC -HA" means the Community Development Commission -Housing Authority of the
City of National City.
"City" means the City of National City, a California municipal corporation.
"Closing" the close of Escrow for the conveyance of the Property from the CDC -HA to
Habitat.
"Closing Deadline" means June 30, 2019, unless extended by agreement of Habitat,
SDCLT and the Executive Director of the CDC -HA or his or her designee.
"Construction Deed of Trust" means a deed of trust recorded against the Property for
purposes of obtaining financing for construction of the Project.
"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 601 hereof.
"Eligible Persons" (or individually "Eligible Person") means: (i) with respect to the sale of
the Affordable Units or Accessory Dwelling Units, persons or families earning not more than
eighty percent (80%) of the then current Area Median Income, provided that such persons or
families also meet the requirements set forth in Section 406 of this Agreement; and (ii) with respect
to the rental of the Accessory Dwelling Units, persons or families earning not more than sixty
percent (60%) of the then current Area Median Income, provided that such persons or families
also meet the requirements set forth in Section 406 of this Agreement. Notwithstanding the
foregoing, beginning on the date that is twenty (20) years the date all relevant Project completion
data is entered into the Department of Housing and Urban Development's ("HUD") Integrated
Disbursement and Information System, then with respect to the sale of the Affordable Units or
Accessory Dwelling Units, "Eligible Persons" shall mean persons or families earning not more
than one hundred twenty percent (120%) of the then current Area Median Income, provided that
such persons or families also meet the requirements set forth in Section 406 of this Agreement.
3
"Escrow" means the escrow depository and disbursement services to be performed by
Escrow Agent pursuant to the provisions of this Agreement.
"Escrow Agent" means Chicago Title Company or another title insurance company
mutually selected by the parties hereto.
"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 Property is located, and of any other political subdivision, agency
or instrumentality exercising jurisdiction over CDC -HA, Habitat, SDCLT or the Property.
"Ground Leases" (or individually "Ground Lease") means the six (6) 99-year ground leases
(one for each of the six (6) Affordable Units), in forms agreed to by Habitat, SDCLT and CDC -
HA, to be executed by SDCLT and the purchasers of each of the Affordable Units and recorded
against each of the Affordable Lots. Notwithstanding the foregoing, if Habitat or SDCLT elects
to sell the Accessory Dwelling Units as individual for -sale units, then "Ground Leases" shall mean
the twelve (12) 99-year ground leases (one for each of the six (6) Affordable Units and one for
each of the (6) Accessory Dwelling Units), in forms agreed to by Habitat, SDCLT and CDC -HA,
to be executed by SDCLT and the purchasers of each of the Affordable Units and each of the
Accessory Dwelling Units and recorded against each of the Affordable Lots.
"Habitat" means San Diego Habitat for Humanity, a California non-profit public benefit
corporation.
"Hazardous Materials" means any hazardous or toxic substance, material or waste which
is or becomes regulated by any local governmental authority, the State of California or the United
State Government. Provided, however, the term "Hazardous Materials" shall not include
substances typically used in the ordinary course of developing, operating and maintaining
apartment complexes in California or small amounts of chemicals, cleaning agents and the like
commonly employed in routine household uses in a manner typical of occupants in other similar
properties, provided that such substances are used in compliance with applicable laws.
"Individual Deeds of Trust" means the deeds of trust securing the CDC-HA's interest in
the Master Declaration, in forms approved by the CDC -HA in its sole discretion, to be executed
in favor of the CDC -HA by the Eligible Persons purchasing each of the Affordable Units or
Accessory Dwelling Units, if applicable, to be recorded as an encumbrance against the fee interest
in each of the Affordable Units.
"Master Declaration" means the declaration of covenants, conditions and restrictions, in
forms agreed to by Habitat, SDCLT and the CDC -HA, to be executed by Habitat and recorded
against the Property at the Closing. The authority to amend the Master Declaration on behalf of
the City and the CDC -HA shall be vested in the Executive Director of the CDC -HA or his or her
designee pursuant to the authority granted by Section 706 hereof.
"Master Deed of Trust" means the deed of trust, in a form agreed to by Habitat, SDCLT
and the CDC -HA, to be executed by Habitat and recorded against the Property at the Closing. The
4
Master Deed of Trust shall secure this Agreement and the Master Declaration. Upon recordation
of each Individual Deed of Trust against an Affordable Lot, the Master Deed of Trust shall be
reconveyed with respect to such Affordable Lot. The Master Deed of Trust may be subordinated
to the Construction Deed of Trust. Any such subordination shall be in a form acceptable to the
CDC -HA in its sole discretion. The authority to amend the Master Deed of Trust on behalf of the
City and the CDC -HA shall be vested in the Executive Director of the CDC -HA or his or her
designee pursuant to the authority granted by Section 706 hereof.
"Maximum Rental Rate" shall be determined by the CDC -HA and shall not exceed 1/12th
of thirty percent (30%) of sixty percent (60%) of the Area Median Income, as adjusted for assumed
family size and utilities.
"Maximum Sales Price" shall be determined by the CDC -HA and shall equal the purchase
price which will result in a "Monthly Housing Cost" to the purchaser of an Affordable Unit or
Accessory Dwelling Unit, as applicable, which does not exceed 1/12th of thirty percent (30%) of
eighty percent (80%) of the Area Median Income, determined as of the date of the close of escrow,
assuming the purchaser will finance all of the purchase price of the Affordable Unit or Accessory
Dwelling Unit, as applicable, using a 30-year fixed -interest loan and will not make a down
payment. "Monthly Housing Cost" means all housing costs applicable to the Affordable Unit or
Accessory Dwelling Unit, as applicable, as determined by the CDC -HA, including, without
limitation, mortgage principal and interest, taxes, insurance, homeowners association fees and
assessments. Notwithstanding the foregoing, beginning on the date that is twenty (20) years the
date all relevant Project completion data is entered into the Department of Housing and Urban
Development's ("HUD") Integrated Disbursement and Information System, then with respect to
the sale of the Affordable Units or Accessory Dwelling Units, the "Maximum Sales Price" shall
mean shall be determined by the CDC -HA and shall equal the purchase price which will result in
a "Monthly Housing Cost" to the purchaser of an Affordable Unit or Accessory Dwelling Unit, as
applicable, which does not exceed 1/12th of thirty-five percent (35%) of one hundred ten percent
(110%) of the Area Median Income, determined as of the date of the close of escrow, assuming
the purchaser will finance all of the purchase price of the Affordable Unit or Accessory Dwelling
Unit, as applicable, using a 30-year fixed -interest loan.
"Project" means the six (6) Affordable Units, plus the six (6) Accessory Dwelling Units
and all other improvements to be constructed on the Property. Notwithstanding the foregoing, if
provision of the six (6) Accessory Dwelling Units is not reasonably feasible, as determined by the
Executive Director of the CDC -HA or his or her designee, then the definition of "Project," as set
forth herein shall be amended accordingly by the Executive Director of the CDC -HA or his or her
designee pursuant to the authority granted by Section 706 hereof.
5
"Property" means that certain real property generally located at 405-419 West 18th Street
in the City of National City, which is more particularly described on Exhibit A attached hereto
"Scope of Construction" means a scope setting forth all construction work, including
without limitation, landscaping, flatwork and similar work, to be done with respect to development
of the Property and construction of the Project, which is approved by the CDC -HA in its sole
discretion.
"SDCLT" means San Diego Community Land Trust, a 501(c)(3) non-profit corporation.
200. Property.
201. Acquisition of the Property by Habitat.
201.1 Acquisition Closing and Purchase Price. Subject to all of the terms and
conditions of this Agreement, the CDC -HA shall sell the Property to Habitat, and Habitat shall
purchase the Property from the CDC -HA at the Closing. The purchase price shall be $1.00. At
the Closing, Habitat shall execute the Master Declaration and Master Deed of Trust in favor of the
CDC -HA, which shall secure Habitat's obligations under this Agreement, and cause the same to
be recorded against the Property senior to all monetary liens.
201.2 "As -Is," "Where -Is." The Property shall be conveyed to Habitat in an "as -
is" physical and environmental condition, with no warranty, express or implied, by the CDC -HA
as to the condition of any existing improvements, the soil, its geology, the presence of known or
unknown faults or Hazardous Materials or toxic substances, and it shall be the sole responsibility
of Habitat at its expense to investigate and determine the physical and environmental conditions.
Prior to the Closing, Habitat shall have the right to engage its own environmental consultant (the
"Environmental Consultant") and other consultants to make such investigations of the Property as
Habitat deems necessary, including any soils, geotechnical and other testing of the Property, and
the CDC -HA shall promptly be provided a copy of all reports and test results provided to Habitat
by the Environmental Consultant. It shall be the sole responsibility and obligation of Habitat to
take such action as may be necessary to place the physical and environmental conditions of the
Property in a condition entirely suitable for the purposes set forth in this Agreement.
201.3 Escrow. Promptly after the execution and delivery of this Agreement,
Habitat and the CDC -HA shall open an escrow ("Escrow") with Escrow Agent to facilitate the
Closing and conveyance of the Property from the CDC -HA to Habitat. Habitat shall pay all fees,
charges, and costs which arise from Escrow, including without limitation all title policy premiums
and documentary transfer taxes.
201.4 Closing Conditions for the Benefit of the CDC -HA. The CDC-HA's
obligation to transfer the Property to Habitat is conditioned upon satisfaction (or waiver) of each
and all of the conditions set forth in this Section 201.4 on or before the Closing Deadline. Any
such waiver shall be effective only if the same is (i) expressly waived in writing signed by the
CDC -HA or by email from the CDC -HA, and (ii) delivered or emailed to Habitat and the Escrow
Agent. In the event that one or more of the conditions set forth in this Section 201.4 are not
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satisfied or expressly waived on or before the Closing Deadline, the CDC -HA (provided the CDC -
HA is not in default hereunder) may unilaterally terminate this Agreement by mailing or emailing
notice of conditional termination to Habitat and the Escrow Agent. After receipt of such notice of
conditional termination, Habitat shall have five (5) business days to cure any non -satisfaction of a
condition or other default specified in the notice of conditional termination. If such matter is
unsatisfied or cured prior to the expiration of such five (5) day period, then the Closing shall
proceed and the CDC -HA waives any right to damages or compensation with respect to the
unsatisfied condition. If such matter remains unsatisfied or the default remains uncured after the
expiration of such five (5) day period, then this Agreement shall terminate at the close of business
on such fifth (5th) day. Any such termination of this Agreement shall not release Habitat from
liability under this Agreement.
(a) No Default. Habitat is not in default in any of its obligations under
the terms of this Agreement and all representations and warranties of Habitat contained
herein shall be true and correct in all material respects.
(b) Attorneys' Fees. Habitat has paid prior to or will pay concurrently
with the Closing and all reasonable attorneys' fees incurred by the CDC -HA with respect
to the same.
(c) Master Declaration and Master Deed of Trust. Habitat has delivered
the fully -executed notarized Master Declaration and Master Deed of Trust to Escrow
Agent.
(d) Additional Documents. The deposit by Habitat into Escrow of all
other documents and instruments reasonably required by the Escrow Agent.
(e) Title Policy. Escrow Agent has confirmed and is prepare to issue a
title policy in favor of the CDC -HA in the amount of $100,000.00 insuring that the Master
Deed of Trust is senior to all monetary liens on the Property.
(f) Environmental Clearance. The Project has satisfactorily completed
any necessary the environmental reviews under 24 CFR Part 58 of the National
Environmental Policy Act (NEPA) and/or California Environmental Quality Act (CEQA).
The parties agree that the provision of any funds to the project is conditioned on the City
of National City's determination to proceed with, modify or cancel the project based on
the results of any necessary environmental review under NEPA and CEQA.
201.5 Closing Conditions for the Benefit of Habitat. Habitat's obligation to close
is conditioned upon satisfaction (or waiver) of each and all of the conditions set forth in this Section
201.5 on or before the Closing Deadline. Any such waiver shall be effective only if the same is
(i) expressly waived in writing signed by Habitat or by email from Habitat, and (ii) delivered or
emailed to the CDC -HA and Escrow Agent. In the event that one or more of the conditions set
forth in this Section 201.5 are not satisfied or expressly waived on or before the Closing Deadline,
Habitat (provided Habitat is not in default hereunder) may unilaterally terminate this Agreement
by mailing or emailing notice of conditional termination to the CDC -HA and Escrow Agent. After
7
receipt of such notice of conditional termination, the CDC -HA shall have five (5) business days to
cure any non -satisfaction of a condition or other default specified in the notice of conditional
termination. If such matter is unsatisfied or cured prior to the expiration of such five (5) day
period, then the Closing shall proceed and Habitat waives any right to damages or compensation
with respect to the unsatisfied condition. If such matter remains unsatisfied or the default remains
uncured after the expiration of such five (5) day period, then this Agreement shall terminate at the
close of business on such fifth (5t1) day. Any such termination of this Agreement shall not release
the CDC -HA from liability under this Agreement.
(a) No Default. The CDC -HA is not in default in any of its obligations
under the terms of this Agreement and all representations and warranties of the CDC -HA
contained herein shall be true and correct in all material respects.
(b) Grant Deed. The CDC -HA has deposited the duly executed and
acknowledged grant deed conveying the Property from the CDC -HA to Habitat into
Escrow.
(c) Additional Documents. The deposit by the CDC -HA into Escrow
of all other documents and instruments reasonably required by the Escrow Agent.
(d) FIRPTA. The deposit by the CDC -HA into Escrow of the CDC-
HA's affidavit that the CDC -HA is not a foreign person and is a "United States Person" as
such term is defined in Section 7761(a)(30) of the Internal Revenue Code of 1986, in the
form prescribed by federal regulations.
(e) FTB Form 590. The deposit by CDC -HA into Escrow of a duly
executed FTB Form 590 or other evidence that withholding is not required by the Revenue
and Taxation Code of California.
201.6 No Sale or Transfer of the Property. The qualifications and identity of
Habitat, and its principals, are of particular concern to the community and the CDC -HA. Habitat
acknowledges that it is because of such qualifications and identity that the CDC -HA is entering
into this Agreement with Habitat. Except as otherwise provided herein, Habitat shall not sell,
transfer or otherwise convey all or any portion of the Property without the prior written approval
of the CDC -HA, which approval may be withheld in the sole discretion of the CDC -HA. Any
sale, transfer or conveyance of all or any portion of the Property without the prior written approval
of the CDC -HA shall be void.
202. Subsequent Financing. Prior to completion of construction of the Project and the
sale of all of the Affordable Units (and each of the Accessory Dwelling Units if SDCLT elects to
sell the Accessory Dwelling Units), no secured loan, deed of trust, or encumbrance, except for the
Construction Deed of Trust shall be placed upon any portion of the Property, whether by
refinancing or otherwise, without first obtaining the express written consent of the CDC -HA.
203. Representations and Warranties.
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203.1 CDC -HA Representations and Warranties. CDC -HA represents and
warrants to Habitat that the CDC -HA 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 -HA
has full right, power and lawful authority to convey the Property as provided herein and the
execution, performance and delivery of this Agreement by CDC -HA has been fully authorized by
all requisite actions on the part of CDC -HA.
203.2 Habitat and SDCLT's Representations and Warranties. Habitat and SDCLT
each represents and warrants to the CDC -HA as follows:
(a) Authority. Each of Habitat and SDCLT is a California nonprofit
corporation. The persons executing this Agreement on behalf of Habitat and SDCLT have
all necessary authority to execute this Agreement on behalf of Habitat and SDCLT,
respectively, and this Agreement is a binding obligation of Habitat and SDCLT. Copies
of the Certificates of Good Standing for Habitat and SDCLT, will be delivered to the CDC -
HA within five (5) business days of final approval of the Agreement. Each of Habitat and
SDCLT will have full right, power and lawful authority to undertake all obligations as
provided in this Agreement.
(b) No Conflict. The execution, delivery and performance of Habitat's and
SDCLT's obligations under this Agreement will not constitute a default or a breach under
any contract, agreement or order to which either of them is a party or by which it is bound.
(c) No Bankruptcy. Neither Habitat nor SDCLT is the subject of a bankruptcy
proceeding.
204. Precautions After Closing. From and after the Closing, Habitat shall take all
necessary precautions to prevent the release in, on or under the Property of any Hazardous
Materials. Such precautions shall include compliance with all Governmental Requirements with
respect to Hazardous Materials. In addition, Habitat 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.
205. Required Disclosures After Closing. From and after the Closing, Habitat shall
notify CDC -HA, and provide the CDC -HA with a copy or copies, of all environmental permits,
disclosures, applications, entitlements or inquiries relating to the Property, 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 Requirements relating to Hazardous Materials and underground
tanks. Habitat shall report to the CDC -HA, as soon as possible after each incident, any unusual or
potentially important incidents with respect to the environmental condition of the Property. In the
event of a release of any Hazardous Materials into the environment, Habitat shall, as soon as
possible after the release, deliver to the CDC -HA a copy of any and all reports relating thereto and
copies of all correspondence with governmental agencies relating to the release. Upon request,
Habitat shall deliver to the CDC -HA a copy or copies of any and all other environmental
9
entitlements or inquiries relating to or affecting the Property 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.
206. Indemnity. From and after the Closing, Habitat agrees to, and from and after
recordation of the Ground Lease, Habitat and SDCLT each agrees to, indemnify, defend and hold
CDC -HA 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 Property, 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
Hazardous Materials on, under, in or about, to or from, the Property. 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 -HA or its employees, agents, representatives,
successors or assigns.
300. Development of the Property by Habitat.
301. CDC -HA Review and Approval of the Scope of Construction. Habitat shall prepare
and submit a Scope of Construction for the Project to be constructed on the Property to the CDC -
HA for review and approval. Exactly one (1) Affordable Unit shall be constructed on each
Affordable Lot. Notwithstanding the foregoing, if Habitat or SDCLT elects to sell the Accessory
Dwelling Units as individual for -sale units, then "Affordable Lot" shall mean each of the twelve
(12) legal lots which then comprise the Property. In such event, Developer shall construct one (1)
Affordable Unit or one (1) Accessory Dwelling Unit, as applicable, on each of the twelve (12)
Affordable Lots. The CDC -HA shall have the right to review and approve or disapprove all aspects
of the Scope of Construction. Habitat acknowledges and agrees that the CDC -HA is entitled to
approve or disapprove the Scope of Construction in order to satisfy the CDC-HA's obligation to
promote the sound construction and redevelopment of the Property, 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, including
but not limited to the residents of the Property. Habitat and SDCLT shall not be entitled to any
monetary damages or compensation as a result of the CDC-HA's disapproval or failure to approve
or disapprove the Scope of Construction.
302. Standards for Disapproval. The CDC -HA shall have the right to disapprove in its
sole discretion any of the Scope of Construction, as set forth in Section 301, above, including
without limitation if the same do not conform to this Agreement or are otherwise incomplete. In
the event the Scope of Construction is not approved, the CDC -HA shall state in writing provided
10
to Habitat the reasons for disapproval. Habitat, upon receipt of notice of disapproval from the
CDC -HA, shall revise such portions and resubmit the revised Scope of Construction to the CDC -
HA for approval. The CDC -HA and Habitat agree to work together in good faith to resolve any
disagreements and disputes regarding the Scope of Construction.
303. Revisions. If Habitat desires to propose any revisions to the CDC -HA -approved
Scope of Construction after approval, Habitat shall submit such proposed changes to the CDC -
HA. If Scope of Construction, as modified by the proposed changes, generally and substantially
conforms to the requirements of the Scope of Construction and this Agreement, the CDC -HA shall
review the proposed changes and notify Habitat in writing within thirty (30) days after submission
to the CDC -HA whether the proposed change is approved or disapproved. The CDC-HA's
Executive Director is authorized to approve changes to the Scope of Construction. Provided,
however, the CDC -HA shall have no obligation to approve any change from the basic use of the
Property for anything other than affordable housing.
304. Defects in Plans. The CDC -HA shall not be responsible or liable in any way, either
to Habitat or to any third parties, for any defects in the Scope of Construction, or for any structural
or other defects in any work done according to the approved Scope of Construction, or for any
delays caused by the review and approval processes established by this Section 300. Habitat and
SDCLT shall hold harmless and indemnify CDC -HA, 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 Property, including
without limitation any defects in the Scope of Construction, violation of any laws, and for defects
in any work done according to the approved Scope of Construction or for defects in work
performed by Habitat or any contractor or subcontractor of Habitat.
305. Land Use Approvals. Before commencement of the Scope of Construction work
or any works of improvement at the Property, Habitat shall, at Habitat'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 Scope of Construction work by the City or any other governmental agency
affected by such rehabilitation, construction or work. Neither CDC -HA, nor the City shall be
responsible in any way for, the processing of Habitat'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.
306. Deadline for Completion of the Scope of Construction. The Scope of Construction
shall be completed not later than twenty-four (24) months from the Closing. Failure to complete
all of the Scope of Construction shall, inter alia, be a default by Habitat, entitling the CDC -HA to
exercise all of its rights and remedies, including without limitation foreclosure of the Master Deed
of Trust.
307. Cost of Project. All costs whatsoever of the Project shall be borne by Habitat,
including without limitation the cost of planning, designing, developing and constructing the six
(6) Affordable Units in accordance with the Scope of Construction.
11
308. Insurance Requirements. Habitat shall take out and maintain during the terms of
construction of the Project, and shall cause its contractor and subcontractors to take out and
maintain until completion of the Scope of Construction, a comprehensive general liability policy
in the amount of not less than $4,000,000 combined single limit policy and not less than $1,000,000
combined single limit policy for subcontractors; provided that the use of umbrella/excess liability
policies to achieve such limits will be acceptable, and a comprehensive automobile liability policy
in the amount of $1,000,000 combined single limit, or such other policy limits as the CDC -HA
may approve at its discretion, including contractual liability, as shall protect Habitat, the City and
CDC -HA from claims for such damages. Such policy or policies shall be written on an occurrence
form. Habitat shall also furnish or cause to be furnished to the CDC -HA evidence satisfactory to
the CDC -HA that Habitat, and any contractor with whom it has contracted for the performance of
work on the Property or otherwise pursuant to this Agreement, carries workers' compensation
insurance as required by law. Habitat shall furnish a certificate of insurance countersigned by an
authorized agent of the insurance carrier on a form approved by the CDC -HA setting forth the
general provisions of the insurance coverage. This countersigned certificate shall name the City
and CDC -HA 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 the City and CDC -HA 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 Habitat shall be primary insurance and not be contributing with any insurance
maintained by the City of CDC -HA, 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 -HA. The required certificates shall be furnished by Habitat prior to the Closing.
309. Rights of Access. Habitat and SDCLT each agrees to allow the CDC -HA and its
representatives to access the Property to review and inspect each of their activities under this
Agreement as the CDC -HA shall require. The CDC -HA shall monitor Habitat's and SDCLT's
activities without liability for said inspection and review.
310. Compliance With Laws. Habitat and SDCLT each represents and warrants that
during the term of this Agreement that it will comply with all Federal Davis Bacon and State
prevailing wage requirements to the extent the same are applicable to the work. Habitat shall carry
out the design and completion of the Scope of Construction in conformity with all applicable laws,
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. Habitat and SDCLT each hereby agrees to carry
out development, rehabilitation, construction and operation of the Property, including, without
limitation, any and all public works (as defined by applicable law), in conformity with all
applicable local, state and federal laws. Habitat and SDCLT each hereby expressly acknowledges
and agrees that neither the City nor the CDC -HA has ever previously affirmatively represented to
Habitat, SDCLT or any of its contractors in writing or otherwise, in a call for bids or otherwise,
12
that the work to be covered by the bid or contract is or is not a "public work," as defined in Section
1720 of the Labor Code. Habitat and SDCLT each hereby agrees that each of them 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. Habitat and
SDCLT each hereby agrees that each 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. Habitat
and SDCLT each hereby agrees that each of them shall have the obligation, at their 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.
Habitat and SDCLT shall each indemnify, protect, defend and hold harmless the City, the CDC -
HA and their respective officers, employees, contractors and agents, with counsel reasonably
acceptable to the City and the CDC -HA, from and against any and all loss, 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 completion
of the Scope of Construction, 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 Habitat or SDCLT 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 Habitat or SDCLT 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 Habitat or SDCLT 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 Habitat or SDCLT 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. It is agreed by the parties that, in connection with the development,
rehabilitation, construction and operation of the Project and the Property, including, without
limitation, any public work (as defined by applicable law), Habitat and SDCLT 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.
Notwithstanding the foregoing, it is expressly agreed and understood that SDCLT is not
responsible for any breach or failure to comply with the State or Federal laws referred to above
during any period prior to the transfer of the Project to SDCLT.
311. Nondiscrimination in Employment. Habitat and SDCLT each certifies and agrees
that all persons employed or applying for employment by it, its affiliates, subsidiaries, or holding
13
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 11135, 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. Habitat and SDCLT shall each allow representatives of the CDC -HA access to its
employment records related to this Agreement during regular business hours to verify compliance
with these provisions when so requested by the CDC -HA.
312. Taxes and Assessments. Habitat shall pay prior to delinquency all ad valorem real
estate taxes and assessments on the Property. Habitat shall remove or have removed any levy or
attachment made after the Closing on the Property or any part thereof, or assure the satisfaction
thereof within a reasonable time.
313. Liens and Stop Notices. Habitat and SDCLT shall not allow to be placed on the
Property or any part thereof any lien or stop notice. If a claim of a lien or stop notice is given or
recorded affecting the Property, Habitat and SDCLT shall, within thirty (30) days of such
recording or service or within five (5) days of the CDC -HA' s demand, whichever last occurs:
(a) pay and discharge the same;
(b) effect the release thereof by recording and delivering to the CDC -HA a
surety bond in sufficient form and amount as approved by the CDC -HA in its sole
discretion; or
(c) provide the CDC -HA with other assurance which the CDC -HA 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 the CDC -HA from the effect of such lien or bonded
stop notice.
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314. Financing of the Project.
314.1 No Encumbrances Except Mortgages or Deeds of Trust. Mortgages and
deeds of trust may be recorded against all or any part of the Property only with the CDC-HA's
prior written approval, and only for the purpose of securing loans of funds to be used for fmancing
the Scope of Construction work, and any other purposes deemed necessary and appropriate by the
CDC -HA in connection with the Project. Habitat shall notify the CDC -HA in advance of the
execution or recordation of any mortgage or deed of trust. Neither Habitat, nor SDCLT, shall enter
into any mortgage or deed of trust for financing the Project, Property or any Affordable Unit
without the prior written approval of the CDC -HA, which approval the CDC -HA agrees to give if
any such mortgage or deed of trust for fmancing is given to an institutional lender and the same is
necessary for completion of the Scope of Construction. The CDC -HA agrees that the Master Deed
of Trust shall be subordinated to the Construction Deed of Trust, such subordination shall be via
a subordination agreement in a form acceptable to the CDC -HA in its sole discretion.
314.2 Right of CDC -HA to Cure Mortgage or Deed of Trust Default. In the event
of a mortgage or deed of trust default or breach by Habitat or SDCLT, Habitat or SDCLT,
respectively, shall immediately deliver to the CDC -HA a copy of any mortgage holder's notice of
default. The CDC -HA shall have the right but not the obligation to cure the default. In such event,
the CDC -HA shall be entitled to reimbursement from Habitat or SDCLT, as applicable, of all costs
and expenses incurred by the CDC -HA in curing such default, including without limitation
attorneys' fees.
315. Occupancy Monitoring and Inspection Fees; Records and Reports. Each year
during the terms of each of the Individual Deeds of Trust, SDCLT shall pay to the CDC -HA an
affordable housing occupancy monitoring and inspection fee of $201 per unit per year, escalating
at 3.5% annually, such fee may be waived by the Executive Director of the CDC -HA or his or her
designee, provided SDCLT or Habitat fulfills all monitoring requirements with respect to the HUD
HOME program and California Redevelopment Law, including, without limitation submission of
all documentation and back-up materials required to the City, CDC -HA, HUD and the State of
California. SDCLT shall supply CDC -HA, annually, on May 31 t, of each year during the term of
this Agreement, for the immediately prior calendar year, with such records and reports as are
required and are requested by the CDC -HA to aid it in complying with its reporting and record
keeping requirements.
316. Flood Insurance. Habitat represents, warrants, and certifies, pursuant to 24 CFR
92.358, that no portion of the Property, is located within a Flood Plain or Flood Hazard Zone or
Area, as indicated on a FEMA Map; or that the Property is located within a community
participating in the National Flood Insurance Program and Habitat agrees to purchase and maintain
flood insurance for the duration of the term of this Agreement.
317. Accessibility Standards. Habitat 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.
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400. Post Construction.
401. Conveyance from Habitat to SDCLT After Completion of Construction. Upon
completion of construction of the Project, including without limitation completion of all of the
Scope of Construction and issuance of certificates of occupancy for all of the Project, Habitat shall
sell the Property to SDCLT, and SDCLT shall purchase the Property from Habitat. The purchase
price shall be $1.00.
402. Ground Lease and Financing of Affordable Units. SDCLT shall cause each of the
Eligible Persons acquiring an Affordable Unit (and each of the Eligible Persons acquiring an
Accessory Dwelling Unit if SDCLT or Habitat elects to sell the Accessory Dwelling Units) to: (i)
execute and notarize a 99-year Ground Lease and cause such Ground Lease to be recorded against
the Affordable Lot being acquired by such Eligible Persons; (ii) execute a promissory note; (iii)
execute and notarize a deed of trust in favor of the first position lender and cause the same to be
recorded against the ground lease interest in the Affordable Lot being acquired by such Eligible
Persons; and (iv) execute and notarize an Individual Deed of Trust in favor of the CDC -HA and
cause such Individual Deed of Trust to be recorded against the ground lease interest in the
Affordable Lot being acquired by such Eligible Persons.
403. No Conveyance in Excess of the Maximum Sales Price. During the period
commencing on the closing of the sale of each Affordable Unit (and the closing of the sale of each
Accessory Dwelling Unit if SDCLT or Habitat elects to sell the Accessory Dwelling Units) and
continuing for forty-five (45) years thereafter, no Affordable Lot, Affordable Unit or Accessory
Dwelling Unit shall be ground leased to a prospective purchaser or occupied by any person unless
and until the CDC -HA has verified the prospective purchaser is an Eligible Person, and the sales
price of the Affordable Lot and Affordable Unit or Accessory Dwelling Unit does not exceed the
Maximum Sales Price. No persons, including without limitation Habitat and SDCLT, may
cumulatively receive any amount of money and/or other consideration upon the transfer, ground
lease or conveyance of all of any portion of any Affordable Lot, Affordable Unit or Accessory
Dwelling Unit in excess of the Maximum Sales Price.
404. Fixed -Interest Loans. Each Affordable Unit (and each Accessory Dwelling Unit if
SDCLT or Habitat elects to sell the Accessory Dwelling Units) shall be financed only with a 30-
year fixed -interest loan to the Eligible Persons acquiring each Affordable Lot and Affordable Unit.
405. Rent and Occupancy Restriction of the Accessory Dwelling Units. If SDCLT and
Habitat elect not to sell the Accessory Dwelling Units, then during the period commencing on the
closing of the sale of each Affordable Unit and continuing for fifty-five (55) years thereafter, each
Accessory Dwelling Unit shall be rented to an Eligible Person at a monthly rental rate which does
not exceed the Maximum Rental Rate.
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406. Additional Restrictions on Eligible Persons.
406.1 No Full -Time Students. The term Eligible Person shall not include any
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.
406.2 No Student Dependents. Notwithstanding the provisions of subparagraph
406.1, the term Eligible Person 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)
resides in the same unit.
406.3 No Owners of Real Property. The term Eligible Person shall not include
any person or any household comprised of one or more persons who own any other real property
at the close of escrow of the Affordable Unit.
406.4 Liquid Asset Limitation. The term Eligible Person 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 include retirement funds which are not readily accessible or which cannot be accessed by
the buyer without the buyer incurring a penalty.
406.5 Income of Co -Purchasers. The income of all co -purchasers and/or
occupants shall be taken into account in determining whether a household is comprised of Eligible
Persons.
406.6 No Relationship With Habitat or SDCLT. The term Eligible Person shall
not include any person employed by Habitat, SDCLT or of any individuals who are members,
principals, executives, directors, partners or shareholders in Habitat, SDCLT or in any entity
having an ownership interest in Habitat or SDCLT or in the Property or any relative (by blood or
marriage) of any of the foregoing persons.
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500. Covenants and Restrictions.
501. Affordable Units. Habitat and SDCLT each covenants and agrees for itself, its
successors, assigns, and every successor in interest to the Property, or any part thereof, that Habitat
or SDCLT (during the period such entity owns the Property) shall comply with this Agreement
and the Master Declaration upon the Closing and for 55 years thereafter.
502. Maintenance Covenants. Habitat and SDCLT each represents and warrants that
after completion of Scope of Construction, the Property and all of the Affordable Units and
Accessory Dwelling Units shall continually be maintained in a decent, safe and sanitary condition,
and in good repair as described in 24 C.F.R. §5.703, and in a manner which satisfies the Uniform
Physical Conditions Standards promulgated by the Department of Housing and Urban
Development (24 C.F.R. §5.705), as such standards are interpreted and enforced by the CDC -HA
under its normal policies and procedures. Habitat and SDCLT each warrants that all construction
work shall meet or exceed the applicable local codes and construction standards, including zoning
and building codes of the City of National City as well as the provisions of the Model Energy Code
published by the Council of American Building Officials. Habitat and SDCLT each hereby
consents to periodic inspection by the CDC-HA's designated inspectors and/or designees during
regular business hours, including the Code Enforcement Agents of the City, to assure compliance
with all applicable zoning, building codes, regulations and property standards.
503. Obligation to Refrain from Discrimination.
503.1 State and Federal Requirements. Habitat and SDCLT shall each, at all times
during the term of this Agreement, comply with all of the affirmative marketing procedures
adopted by the CDC -HA. Habitat and SDCLT shall each maintain records to verify compliance
with the applicable affirmative marketing procedures and compliance. Such records are subject to
inspection by the CDC -HA during regular business hours upon five (5) days written notice.
503.2 Additional Requirements. Habitat and SDCLT each 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.
503.3 Fair Housing Laws. All activities carried out by Habitat, SDCLT and/or
agents of either of them shall be 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,
18
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 Housing 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 Habitat: Fair Employment and Housing Act, Unruh
Civil Rights Act of 1959, Ralph Civil Rights Act of 1976, and Civil Code Section 54.1.
504. Nondiscrimination Covenants. Habitat and SDCLT each 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 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
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall
Habitat, SDCLT or any person claiming under or through either of them 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 Property. The foregoing covenants shall run with the land. 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, 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."
19
(c) Contracts. In contracts for the rental, lease or sale of the Property: "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."
505. Effect of Violation of the Terms and Provisions of this Agreement. The CDC -HA
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
the CDC -HA has been, remains or is an owner of any land or interest therein in the Property. The
CDC -HA 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.
600. Defaults and Remedies.
601. Default Generally. Failure by the CDC -HA, Habitat or SDCLT 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
alleged Default. 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: (i)
such alleged Default is cured thirty (30) days from receipt of such written notice: or (ii) if the
alleged Default is such that it is not capable of being cured within thirty (30) days, but corrective
action is initiated within thirty (30) days and the allegedly defaulting party diligently and in good
faith works to effect a cure as soon as possible.
602. 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, downtown branch, or in the District of the United States District Court in the County
of San Diego.
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603. Entry and Vesting of Title in CDC -HA Prior to Completion of Construction.
603.1 Right of Reentry. In addition to all other rights and remedies the CDC -HA
may have at law or in equity, the CDC -HA has the right, at its election, to enter and take possession
of the Property, and all improvements thereon (whether by foreclosure of the Master Deed of Trust
or otherwise), and terminate and revest the Property in the CDC -HA if after the Closing:
(a) Habitat fails to start the Scope of Construction work as required by this
Agreement within one (1) year of the Closing or for a period of thirty (30) days after written
notice thereof from CDC -HA; or
(b) Habitat abandons or substantially suspends the Scope of Construction work
required by this Agreement for a period of thirty (30) days after written notice thereof from
CDC -HA; or
(c) Habitat transfers or suffers any involuntary transfer of the Property or any
part thereof in violation of contrary to the provisions of this Agreement; or
(d) SDCLT fails to ground lease the six (6) Affordable Units (and six (6)
Accessory Dwelling Unit if SDCLT or Habitat elects to sell the Accessory Dwelling Units)
as set forth in Section 500 above, thirty (30) days after written notice thereof from CDC -
HA.
603.2 Limitations on Right of Entry. Such right to enter and vest shall be subject
to and be limited by and shall not defeat, render invalid or limit any mortgage or deed of trust
permitted by this Agreement that is senior to the Master Deed of Trust.
603.3 Termination of Right of Entry. The CDC-HA's right to enter and take
possession of the Property and all improvements thereon, and terminate and revest the Property in
the CDC -HA, shall terminate upon the timely completion of the Scope of Construction.
604. 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.
605. 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.
21
700. General Provisions.
701. Notices, Demands and Communications Between the Parties. All notices under
this Agreement shall be in writing and sent (a) by certified or registered U.S. mail, return receipt
requested, (b) overnight by a nationally recognized overnight courier such as UPS Overnight or
FedEx, or (c) by personal delivery. All notices shall be effective upon receipt (or refusal to accept
delivery). All notices shall be delivered to the following addresses or such other addresses as
changed by any party from time to time by written notice to the other parties hereto.
To CDC -HA:
To Habitat:
To SDCLT:
Community Development Commission -
Housing Authority of the City of National City
1243 National City Boulevard
National City, CA 91950
Attention: Executive Director
San Diego Habitat for Humanity
8182 Mercury Court
San Diego, CA 92111
San Diego Community Land Trust
P.O. Box 263
Lemon Grove, CA 91946
702. 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 be in
Default, and all performance and other dates specified in this Agreement shall be extended, where
delays or Defaults are due to: war; insurrection; 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 -HA and Habitat.
703. Transfers of Interest in Property or Agreement. The qualifications and identity of
Habitat and SDCLT are of particular concern to the CDC -HA. It is because of those qualifications
and identity that the CDC -HA has entered into this Agreement with Habitat and SDCLT. Except
as otherwise provided in this Agreement, during the period commencing on the closing of the sale
of each Affordable Unit and continuing for fifty-five (55) years thereafter, no voluntary or
involuntary successor in interest to Habitat or SDCLT shall acquire any rights or powers under
this Agreement, nor shall Habitat or SDCLT make any total or partial sale, transfer, conveyance,
assignment, subdivision, refinancing or lease of the whole or any part of the Property or the
improvements thereon without prior written approval of the CDC -HA. Except as otherwise
22
provided in this Agreement, any proposed total or partial sale, transfer, conveyance, assignment,
subdivision, refinancing or lease of the whole or any part of the Property or the improvements
thereon, will entitle CDC -HA to its right of reentry and revesting as set forth in Section 603 hereof.
For the reasons cited above, Habitat and SDCLT each represents and agrees for itself, each partner
and any successor in interest to itself that without the prior written approval of the CDC -HA, there
shall be no significant change in the ownership of Habitat or SDCLT or in the relative proportions
thereof, or with respect to the identity of the parties in control of Habitat or SDCLT or the degree
thereof, by any method or means. Habitat or SDCLT, as applicable, shall promptly notify the
CDC -HA of any and all changes whatsoever in the identity of the parties in control of Habitat or
SDCLT or the degree thereof, of which it or any of its officers have been notified or otherwise
have knowledge or information. Any change (voluntary or involuntary) in the composition,
management or control of Habitat or SDCLT shall be a Default. All of the terms, covenants and
conditions of this Agreement shall be binding upon Habitat and SDCLT and their permitted
successors and assigns. Whenever the term "Habitat" or "SDCLT" is used in this Agreement, such
term shall include any other permitted successors and assigns as herein provided.
704. Non -Liability of Officials and Employees. No member, official or employee of the
City or CDC -HA shall be personally liable to Habitat or SDCLT, 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
Habitat or its successors, or on any obligations under the terms of this Agreement.
705. Relationship Between the Parties. It is hereby acknowledged that the relationship
between the CDC -HA, Habitat and SDCLT is that of independent contractors and not that of a
partnership or joint venture and that the CDC -HA, Habitat and SDCLT shall not be deemed or
construed for any purpose to be the agent of the other. Habitat and SDCLT agree to indemnify,
hold harmless and defend the CDC -HA from any claim made against the CDC -HA arising from a
claimed relationship of partnership or joint venture between the CDC -HA, Habitat and SDCLT.
706. CDC -HA Amendment of Agreement and Approvals and Actions. Whenever a
reference is made herein to an action or approval to be undertaken by the CDC -HA, the Executive
Director of the CDC -HA or his or her designee is authorized to act on behalf of the CDC -HA.
Furthermore, the Executive Director of the CDC -HA or his or her designee is authorized to amend
this Agreement, the Master Declaration and the Master Deed of Trust, and approve any and all
alterations, amendments or changes to the Project, without further authorization from the City
Council of the City of National City, provided that after such amendment, alteration or change the
Property continues to be restricted as affordable housing.
707. Counterparts. This Agreement may be signed in multiple counterparts which, when
signed by all parties, shall constitute a binding agreement.
23
708. 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 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.
709. No Real Estate Brokerage Commissions. The CDC -HA, Habitat and SDCLT each
represent and warrant to the other that no broker or finder is entitled to any commission or finder's
fee in connection with Habitat's or SDCLT's acquisition of the Property. 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.
710. 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.
711. 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.
712. 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.
713. No Waiver. A waiver by either party of a breach of any of the covenants, conditions
or agreements under this Agreement to be 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.
714. Modifications. Any amendment, 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 (any amendment, alteration, change or modification of this Agreement on
behalf of the CDC -HA, including without limitation changes to the economic terms of this
Agreement and its exhibits, shall be made on behalf of the CDC -HA by the Executive Director of
the CDC -HA in such Executive Director's sole discretion).
715. 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
24
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.
716. 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 be done by a particular time during a day, that
time shall be Pacific Time Zone time.
717. 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.
718. Time of Essence. Time is expressly made of the essence with respect to the
performance by the CDC -HA and Habitat of each and every obligation and condition of this
Agreement.
719. 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.
720. Conflicts of Interest. No member, official or employee of the City or the CDC -HA
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.
721. Exhibits and Recitals Incorporated. All exhibits 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.
25
722. Applicable Law. The laws of the State of California shall govern the interpretation
and enforcement of this Agreement.
723. 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 -HA 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 -HA:
Community Development Commission -Housing Authority of the City of National City
By:
Leslie Deese, Executive Director
APPROVED AS TO FORM:
Angil P Morris -Jones
CDC -HA General Counsel
By:
Roberto Contreras
Deputy CDC -HA General Counsel
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
26
HABITAT:
San Diego Habitat for Humanity, a California non-profit public benefit corporation
By:
Print Naryte: Lo @ Li;- 'ILO"
Its:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
SDCLT:
San Diego Community Land Trust, a 501(c)(3) non-profit corporation
By:
PriIts:
n
JEAN rfi; TD i (�7
ECuT1b' ii 1)1iZ C L1V(L
28
EXHIBIT A
Property Legal Description
The land referred to herein is situated in the State of California, County of San Diego and described
as follows:
LOTS 13, 14 AND 15 IN BLOCK 146 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.
APN: 559-085-08
29
Attachment No. 3
NO CHARGE ON THIS DOCUMENT
PER CALIFORNIA GOVERNMENT
CODE SECTION 6103
Recording Requested By:
When Recorded Mail To:
Christensen & Spath LLP
550 West C Street, Suite 1660
San Diego, CA 92101
MASTER DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
(405-419 West 18th Street)
THIS MASTER DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS ("Master Declaration") is dated as of the _ day of , 201_, is made by
San Diego Habitat for Humanity, a California non-profit public benefit corporation
("Developer"), San Diego Community Land Trust, a 501(c)(3) non-profit corporation
("SDCLT"), the City of National City ("City") and the Community Development Commission -
Housing Authority of the City of National City ("CDC -HA").
RECITALS
A. Developer, CDC -HA and SDCLT, are all of the parties to that certain Disposition
and Development Agreement dated as of September 18, 2018 ("DDA"). Pursuant to the terms of
the DDA, the CDC -HA is conveying to the Developer, concurrently herewith, that certain real
property commonly known as 405-419 West 18th Street in the City of National City, which is
more particularly described on Exhibit A hereto ("Property"). In addition, the City and
Developer are all of the parties to that certain HOME-CHDO Funding Agreement dated as of
October 30, 2012 (as amended by that certain First Amendment to the HOME-CHDO Funding
Agreement dated as of November 18, 2014, the "HOME-CHDO Agreement"). Pursuant to the
terms of the HOME-CHO Agreement, the City is providing funding ("HOME-CHDO Funds") to
the Developer, to assist with construction of the Project, as defined below.
B. Conveyance of the Property from the CDC -HA to the Developer is conditioned
by the CDC -HA in part upon the recordation of this Master Declaration setting forth certain
restrictions upon the use and sale of the Property. Developer shall construct the Project, as
defined below, on the Property. This Master Declaration is intended to and does restrict the
Affordable Units and the Accessory Dwelling Units in accordance with the requirements of the
DDA and the HOME-CHDO Agreement. The Developer shall ground lease for 99 years and sell
the six (6) Affordable Units in accordance with the sale and occupancy restrictions set forth in
this Master Declaration. The Developer may elect to either sell the six (6) Accessory Dwelling
Units in accordance with the sale and occupancy restrictions set forth in this Master Declaration
Attachment No. 3
or cause those six (6) Accessory Dwelling Units to be rented in accordance with the rent and
occupancy restrictions set forth in this Master Declaration.
C. This Master Declaration shall be recorded as an encumbrance against the Property
and shall restrict the sale and occupancy of the Affordable Units and the Accessory Dwelling
Units. This Master Declaration serves to memorialize Developer's agreement to provide the
Affordable Units and the Accessory Dwelling Units and imposes covenants, conditions and
restrictions on the Property to satisfy the terms of the DDA and the HOME-CHDO Agreement.
The HOME-CHDO Funds are being funded by the City using United States Department of
Housing and Urban Development HOME-CHDO funds. This Master Declaration is intended to
and does restrict five (5) of the Affordable Units in accordance with all requirements of the
foregoing funding program. To the extent any Federal, State or local law, ordinance, statute,
regulation or rule applicable to the Property as a result of the HOME-CHDO Funds is not
explicitly set forth in this Master Declaration, the Developer shall nonetheless comply with such
requirements.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the CDC -HA, City and Developer hereby agree as follows:
1. Definitions. The following terms shall have the meanings ascribed to them in this
Section.
"Accessory Dwelling Units" means collectively, the six (6) accessory dwelling units, as
defined in California Government Code Section 65852.2, to be constructed on the Property (one
attached to each of the Affordable Units) whose occupancy and sales prices or rental rates are
restricted to Eligible Persons.
"Affordable Lot" means each of the six (6) legal lots which comprise the Property.
Developer shall construct one (1) Affordable Unit on each of the six (6) Affordable Lots.
Notwithstanding the foregoing, if the Developer elects to sell the Accessory Dwelling Units as
individual for -sale units, then "Affordable Lot" shall mean each of the twelve (12) legal lots
which then comprise the Property. In such event, Developer shall construct one (1) Affordable
Unit or one (1) Accessory Dwelling Unit, as applicable, on each of the twelve (12) Affordable
Lots. Each Affordable Lot shall be ground leased for 99 years to an Eligible Purchaser.
"Affordable Units" means collectively, the six (6) single-family residential dwelling units
to be constructed on the Property whose sale, price and occupancy are restricted to Eligible
Persons. Five (5) of the Affordable Units shall be HOME-CHDO Affordable Units subject to the
applicable HOME Program regulations (24 CFR Part 92).
"Area Median Income" means the area median income, as adjusted for family size, for the
San Diego -Carlsbad Metropolitan Statistical Area, established periodically by the U.S.
Department of Housing and Urban Development ("HUD") and published in the Federal Register.
In the event HUD ceases to publish an established Area Median Income as aforesaid, the CDC-
Attachment No. 3
HA may, in its reasonable discretion, use any other reasonably comparable method of computing
Area Median Income and/or the Monthly Housing Cost.
"CDC -HA" means the Community Development Commission -Housing Authority of the
City of National City.
"City" means the City of National City, a California municipal corporation.
"Developer" means San Diego Habitat for Humanity, a California non-profit public
benefit corporation.
"Eligible Persons" (or individually "Eligible Person") means: (i) with respect to the sale
of the Affordable Units or Accessory Dwelling Units, persons or families earning not more than
eighty percent (80%) of the then current Area Median Income, provided that such persons or
families also meet the requirements set forth in Section 6 of this Master Declaration; and (ii) with
respect to the rental of the Accessory Dwelling Units, persons or families earning not more than
sixty percent (60%) of the then current Area Median Income, provided that such persons or
families also meet the requirements set forth in Section 6 of this Master Declaration.
Notwithstanding the foregoing, beginning on the date that is twenty (20) years the date all
relevant Project completion data is entered into the Department of Housing and Urban
Development's ("HUD") Integrated Disbursement and Information System, then with respect to
the sale of the Affordable Units or Accessory Dwelling Units, "Eligible Persons" shall mean
persons or families earning not more than one hundred twenty percent (120%) of the then current
Area Median Income, provided that such persons or families also meet the requirements set forth
in Section 6 of this Master Declaration.
"FMV at Acquisition" means the unrestricted fair market value of the applicable
Affordable Unit or Accessory Dwelling Unit, as determined by the CDC -HA, at the time of its
acquisition by the Eligible Person.
"Individual Deed of Trust" means the deed of trust, to be recorded against the Eligible
Person's 99 year ground -leasehold interest in the Affordable Lot, in a form acceptable to the
CDC -HA in its sole discretion.
"Master Declaration" means this Declaration of Covenants, Conditions and Restrictions.
The authority to amend this Master Declaration on behalf of the City and the CDC -HA shall be
vested in the City Manager and the Executive Director of the CDC -HA or his or her designee.
"Master Deed of Trust" means the deed of trust securing Developer's obligations under
this Master Declaration, which shall be recorded as an encumbrance against the Property
concurrently herewith. The authority to amend the Master Deed of Trust on behalf of the City
and the CDC -HA shall be vested in the City Manager and the Executive Director of the CDC -HA
or his or her designee.
Attachment No. 3
"Maximum Rental Rate" shall be determined by the City and the CDC -HA and shall not
exceed 1/121 of thirty percent (30%) of sixty percent (60%) of the Area Median Income, as
adjusted for assumed family size and utilities.
"Maximum Sales Price" shall be determined by the CDC -HA and shall equal the
purchase price which will result in a "Monthly Housing Cost" to the purchaser of an Affordable
Unit or Accessory Dwelling Unit, as applicable, which does not exceed 1/12th of thirty percent
(30%) of eighty percent (80%) of the Area Median Income, determined as of the date of the close
of escrow, assuming the purchaser will finance all of the purchase price of the Affordable Unit or
Accessory Dwelling Unit, as applicable, using a 30-year fixed -interest loan and will not make a
down payment. "Monthly Housing Cost" means all housing costs applicable to the Affordable
Unit or Accessory Dwelling Unit, as applicable, as determined by the CDC -HA, including,
without limitation, mortgage principal and interest, taxes, insurance, homeowners association
fees and assessments. Notwithstanding the foregoing, beginning on the date that is twenty (20)
years the date all relevant Project completion data is entered into the Department of Housing and
Urban Development's ("HUD") Integrated Disbursement and Information System, then with
respect to the sale of the Affordable Units or Accessory Dwelling Units, the "Maximum Sales
Price" shall mean shall be determined by the CDC -HA and shall equal the purchase price which
will result in a "Monthly Housing Cost" to the purchaser of an Affordable Unit or Accessory
Dwelling Unit, as applicable, which does not exceed 1/121 of thirty-five percent (35%) of one
hundred ten percent (110%) of the Area Median Income, determined as of the date of the close of
escrow, assuming the purchaser will finance all of the purchase price of the Affordable Unit or
Accessory Dwelling Unit, as applicable, using a 30-year fixed -interest loan.
"Project" means the six (6) Affordable Units, plus the six (6) Accessory Dwelling Units
and all other improvements to be constructed on the Property. Notwithstanding the foregoing, if
provision of the six (6) Accessory Dwelling Units is not reasonably feasible, as determined by
the Executive Director of the CDC -HA or his or her designee, then the definition of "Project," as
set forth herein shall be amended accordingly by the Executive Director of the CDC -HA or his or
her designee pursuant to the authority granted by Section 706 of the DDA.
"Property" means that certain real property owned by Developer and located in the City
of National City, State of California, more particularly described on Exhibit A, attached hereto.
Other terms referenced in this Master Declaration in "quotations" have the meanings
ascribed to them in this Master Declaration.
2. Developer Covenants Concerning the Affordable Units. Developer agrees and covenants
on behalf of itself and its successors and assigns, and each successor in interest to the Property,
that during the period commencing on the closing of the 99 year ground leases in each
Affordable Lot and the sale of each Affordable Unit or Accessory Dwelling Unit, as applicable,
and continuing for forty-five (45) years thereafter, the six (6) single-family residential dwelling
units on the Property (and the six (6) Accessory Dwelling Units if the Developer elects to sell the
Accessory Dwelling Units) shall be set aside, reserved and sold as Affordable Units. Developer,
its successors and assigns and all purchasers of the Affordable Units during the term of this
Attachment No. 3
Master Declaration, shall not sell the Affordable Units (or the six (6) Accessory Dwelling Units
if the Developer elects to sell the Accessory Dwelling Units) to any person other than an Eligible
Person. In addition, the five (5) HOME-CHDO Affordable Units will be restricted for twenty
(20) years under the HOME Program commencing on the date all relevant Project completion
data is entered into the Department of Housing and Urban Development's ("HUD") Integrated
Disbursement and Information System ("IDIS"). During such twenty (20) year period all
applicable regulations, policies and procedures promulgated by HUD in connection with the
HOME-CHDO Program shall be complied with. Failure to so comply shall constitute a material
default hereunder, entitling the City to all of the remedies set forth in this Master Declaration,
including without limitation foreclosure under the Master Deed of Trust or any Individual Deeds
of Trust, as applicable. In the event any of the five (5) HOME-CHDO Affordable Units is sold in
violation of the terms of this Master Declaration, then the City shall be entitled to recapture the
"net sales proceeds" in accordance with 24 C.F.R. Section 92.254(a)(5)(ii)(A)(3). Beginning
twenty (20) years after all relevant Project completion data is entered into IDIS, and for the
remainder of the term of this Master Declaration, the Affordable Units that were previously
restricted as HOME-CHDO Affordable Units will be subject to all other applicable restrictions
set forth in this Master Declaration.
3. Sale of Affordable Units and Accessory Dwelling Units. The Developer shall not sell the
fee interest in all or any portion of the Property or any Affordable Lot. Each Affordable Lot shall
be subject to a 99 year ground lease only. Except for the Construction Deed of Trust, no deed of
trust or mortgage shall encumber any fee interest in the Property or any Affordable Lot.
(a) No Sale by Developer in Excess of the Maximum Sales Price. No Affordable
Unit (or Accessory Dwelling Unit, if the Developer elects to sell the Accessory Dwelling Units)
shall be sold to a prospective purchaser or occupied by any person unless and until the CDC -HA
has verified the prospective purchaser is an Eligible Person, and the sales price of the Affordable
Unit does not exceed the Maximum Sales Price. Developer may take back a 30-year zero percent
interest loan, but neither the Developer nor any other person, shall receive any amount of money
and/or other consideration upon the transfer or sale of any Affordable Unit (or Accessory
Dwelling Unit, if the Developer elects to sell the Accessory Dwelling Units).
(b) Calculation of Maximum Sales Price. The Maximum Sales Price shall be
determined by the Developer, subject to the CDC-HA's written approval.
(c) Individual Deed of Trust. The requirements of this Master Declaration which are
applicable to each Affordable Unit (and to the six (6) Accessory Dwelling Units if the Developer
elects to sell the Accessory Dwelling Units) shall be secured by the Individual Deed of Trust. An
Individual Deed of Trust shall be recorded against the ground lease interest in each of the
Affordable Lots concurrently with the closing of the sale of such Affordable Unit (and each
Accessory Dwelling Unit, if the Developer elects to sell the Accessory Dwelling Units) to the
initial purchaser.
4. Release of Master Deed of Trust. Upon the initial sale of each Affordable Unit (and each
Accessory Dwelling Unit, if the Developer elects to sell the Accessory Dwelling Units) to an
Attachment No. 3
Eligible Person and recordation of the Individual Deed of Trust, the Master Deed of Trust shall
be partially reconvey as to such Affordable Unit or Accessory Dwelling Unit.
5. Restriction of the Accessory Dwelling Units. Provided the Developer does not sell the
Accessory Dwelling Units in accordance with Section 3 of this Master Declaration, then during
the period commencing on the closing of the sale of each Affordable Unit and continuing for
fifty-five (55) years thereafter, each Accessory Dwelling Unit shall be rented to an Eligible
Person at a monthly rental rate which does not exceed the Maximum Rental Rate. The eligibility
of each prospective tenant of an Accessory Dwelling Unit shall be certified by SDCLT which
shall submit such certification and all supporting documentation on forms acceptable to the City
for a determination of tenant eligibility, prior to tenant occupancy. No Accessory Dwelling Unit
may be rented to a prospective tenant or occupied by any person unless and until the City has
determined that the prospective tenant or occupant is an Eligible Person.
6. Additional Restrictions on Eligible Persons.
(a) No Full -Time Students. The term Eligible Person shall not include 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.
(b) No Student Dependents. Notwithstanding the provisions of Section 6(a), the
terms Eligible Person 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) resides in
the same unit.
(c) No Owners of Real Property. The term Eligible Person shall not include any
person or any household comprised of one or more persons who own any other real property at
the close of escrow of the Affordable Unit.
(d) Liquid Asset Limitation. The term Eligible Person 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 include retirement funds which are not readily accessible or which cannot be accessed
by the buyer without the buyer incurring a penalty.
(e) Income of Co -Purchasers. The income of all co -purchasers and/or occupants shall
be taken into account in determining whether a household is comprised of Eligible Persons.
Attachment No. 3
(f) No Relationship With Developer. The term Eligible Person shall not include any
person employed by Habitat, SDCLT or of any individuals who are members, principals,
executives, directors, partners or shareholders in Habitat, SDCLT or in any entity having an
ownership interest in Habitat or SDCLT or in the Property or any relative (by blood or marriage)
of any of the foregoing persons.
7. Recordation. This Master Declaration shall be recorded against the Property in the Office
of the County Recorder for the County of San Diego senior to all monetary liens.
8. Master Deed of Trust. Upon the execution of this Master Declaration, Developer shall
execute, acknowledge and deliver the Master Deed of Trust to the CDC -HA, and will cause the
Master Deed of Trust to be recorded in second lien priority, in favor of the CDC -HA against the
Property, to secure the performance of the terms and conditions of this Master Declaration.
9. Indemnity. Developer agrees to indemnify, defend and hold harmless the City, the CDC -
HA, and any and all of their respective members, officers, agents, servants, or employees (the
"Indemnitees") from and against all claims, liens, claims of lien, losses, damages, costs, and
expenses, whether direct or indirect, arising in any way from the construction, sale, rental or
operation of the Property and/or the Affordable Unit, or from the default by Developer in the
performance of its obligations under this Master Declaration; provided, however, that Developer
shall not be required to indemnify, defend or hold harmless any of the Indemnitees from claims,
losses, damages, costs and expenses related to the negligence or willful misconduct of the
Indemnitees.
10. Nondiscrimination Covenants. Habitat each 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 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 in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall
Habitat or any person claiming under or through either of them 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 Property. The foregoing covenants shall run with the land. 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
Attachment No. 3
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 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 for the rental, lease or sale of the Property: "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."
11. Covenants to Run With the Land. Developer agrees that all of its obligations hereunder
shall constitute covenants, which shall run with the land and shall be binding upon the Property
and upon every person having any interest therein at any time and from time to time during the
term of this Master Declaration. Further, Developer agrees that, if a court of competent
jurisdiction determines that the obligations set forth herein do not qualify as covenants running
with the land, they shall be enforced as equitable servitudes.
12. Successors and Assigns. This Master Declaration shall inure to the benefit of, and be
binding upon, the parties hereto, and their respective heirs, successors and assigns. Developer
shall not sell, transfer or otherwise dispose of the Property, any portion thereof, or any interest
therein unless: (i) the proposed transferee is an Eligible Person; or (ii) the proposed transferee
shall have executed and delivered to the CDC -HA an express written assumption of all of
Developer's obligations under this Master Declaration, on a form reasonably acceptable to the
CDC -HA. Upon assignment and assumption by a successor entity, as approved by the CDC -HA,
Developer shall be released from all further responsibility under the terms of this Master
Declaration.
13. Occupancy Monitoring and Inspection Fees; Records and Reports. Each year during the
terms of each of the Individual Deeds of Trust, SDCLT shall pay to the CDC -HA an affordable
housing occupancy monitoring and inspection fee of $201 per unit per year, escalating at 3.5%
Attachment No. 3
annually, such fee may be waived by the Executive Director of the CDC -HA or his or her
designee, provided SDCLT or Habitat fulfills all monitoring requirements with respect to the
HUD HOME program and California Redevelopment Law, including, without limitation
submission of all documentation and back-up materials required to the City, CDC -HA, HUD and
the State of California. SDCLT shall supply CDC -HA, annually, on May 31 st, of each year
during the term of this Master Declaration, for the immediately prior calendar year, with such
records and reports as are required and are requested by the CDC -HA to aid it in complying with
its reporting and record keeping requirements.
14. Standing, Equitable Remedies; Cumulative Remedies. Developer expressly agrees and
declares that the CDC -HA and/or the City of National City and/or their successors shall be the
proper parties 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 Master Declaration. Nothing in this subparagraph, and no recovery to the
CDC -HA and/or the City of National City, shall restrict or limit the rights or remedies of persons
or entities other than the CDC -HA and/or the City of National City, against Developer in
connection with the same or related acts by Developer.
15. Physical Condition of Affordable Units. After completion of construction of the Project,
the Affordable Units and the Accessory Dwelling Units shall be maintained in a decent, safe and
sanitary condition, and in good repair as described in 24 CFR §5.703, and in a manner which
satisfies the Uniform Physical Conditions Standards promulgated by the Department of Housing
and Urban Development (24 CFR §5.705), as such standards are interpreted and enforced by City
and the CDC -HA under their normal policies and procedures. The City and the CDC -HA shall
have the right to inspect the Affordable Units and the Accessory Dwelling Units from time to
time upon reasonable advance, in order to verify compliance with the foregoing maintenance
covenant. Each Eligible Person hereby consents to periodic inspection by the City's and the
CDC-HA's designated inspectors and/or designees during regular business hours, to ensure
compliance with all applicable zoning, building codes, regulations, and property standards. Any
deficiencies in the physical condition of an Affordable Unit shall be corrected by each Eligible
person at such Eligible Person's expense within ten (10) days of the identification of such
deficiency by the City or the CDC -HA and delivery of written notice of the same to such Eligible
Person, provided if the deficiency is of a nature that it cannot be cured within such ten (10) day
period, such Eligible Person shall have such additional time to cure as is reasonably determined
by the City or the CDC -HA, as applicable.
16. General Provisions.
(a) Integration. The undersigned, and each of them, acknowledge and represent that
no promise or inducement not expressed in this Master Declaration has been made in connection
Attachment No. 3
with this Master Declaration. This Master Declaration contains the entire agreement and
understanding between the parties as to its subject matter.
(b) Waiver and Amendment. No provision of this Master Declaration, 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 Master Declaration may be amended,
modified or rescinded only in writing signed by Developer (or its successor in interest to the
Property), the City Manager and the Executive Director of the CDC -HA or his or her designee on
behalf of the City and the Executive Director of the CDC -HA or his or her designee on behalf of
the CDC -HA. The City Manager or his or her designee and the Executive Director of the CDC -
HA or his or her designee, are authorized to amend this Master Declaration and approve any and
all alterations, amendments or changes to the Project, without further authorization from the City
Council of the City of National City, provided that after such amendment, alteration or change
the Property continues to be restricted as affordable housing.
(c) Time of Essence. Time is expressly declared to be of the essence in this Master
Declaration, and of every provision in which time is an element.
(d) Captions. Paragraph titles and captions contained in this Master Declaration are
inserted as a matter of convenience and for reference, and are not a substantive part of this
Master Declaration.
(e) Further Assurances. The parties each agree to sign any additional documents,
which are reasonably necessary to carry out this Master Declaration or to accomplish its intent.
(f) Benefit and Burden. This Master Declaration shall be binding upon and inure to
the benefit of the parties and their respective heirs, representatives, successors and assigns. This
Master Declaration is not intended to benefit any person other than the parties hereto.
(g) Governing Law. This Master Declaration has been entered into in the State of
California, and shall be interpreted and enforced under California law.
(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 Master Declaration shall be entitled to
reasonable attorneys' fees and costs (including, but not limited to, experts' fees and costs and
trustees' fees, and including "costs" regardless of whether recoverable as such under any statute)
incurred in such action.
(i) Signatures. This Master Declaration may be executed in any number of
counterparts and, as so executed, the counterparts shall constitute one and the same agreement.
All individuals signing this Master Declaration for a party which is a corporation, a 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 -HA that they have the necessary capacity and
Attachment No. 3
authority to act for, sign and bind the respective entity or principal on whose behalf they are
signing.
(j) Exhibits and Recitals Incorporated. All exhibits referred to in this Master
Declaration are hereby incorporated in this Master Declaration by this reference, regardless of
whether or not the exhibits are actually attached to this Master Declaration. The Recitals to this
Master Declaration are hereby incorporated in this Master Declaration by this reference.
(k) Notices. All notices given pursuant to this Master Declaration shall be in writing
and sent to the party at its address appearing below (a) by certified or registered U.S. mail, return
receipt requested, (b) overnight by a nationally recognized overnight courier such as UPS
Overnight or FedEx, or (c) by personal delivery. All notices shall be effective upon receipt (or
refusal to accept delivery). These addresses may be changed by any party by written notice to all
other parties.
CDC -HA:
Community Development Commission -
Housing Authority of the City of National City
1243 National City Boulevard
National City, CA 91950
Attention: Executive Director
Developer: San Diego Habitat for Humanity
(1) Escrow. Developer shall open an escrow to insure proper and timely recordation
of this Master Declaration and the Master Deed of Trust.
(m) Developer's Notice to CDC -HA. Developer shall provide CDC -HA with written
notification of obtaining the building permit(s) for the Property, concurrently with the
accomplishment of the same.
(n) Severable Provisions. If any provision of this Master Declaration shall be invalid
or unenforceable to any extent, then the other provisions of this Master Declaration, shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
IN WITNESS WHEREOF, the Developer has caused this Master Declaration to be
executed as of the date first written above.
Attachment No. 3
DEVELOPER:
San Diego Habitat for Humanity, a California non-profit public benefit corporation
By:
Print Name:
Its:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Attachment No. 3
SDCLT:
San Diego Community Land Trust, a 501(c)(3) non-profit corporation
By:
Print Name:
Its:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Attachment No. 3
CDC -HA:
Community Development Commission -Housing Authority of the City of National City
By:
Leslie Deese, Executive Director
APPROVED AS TO FORM:
Angil P Morris -Jones
CDC -HA General Counsel
By:
Roberto Contreras
Deputy CDC -HA General Counsel
CITY:
City of National City
By:
Leslie Deese, City Manager
APPROVED AS TO FORM:
Angil P Morris -Jones
City Attorney
By:
Roberto Contreras
Deputy City Attorney
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of San Diego
)
)
)
Attachment No. 3
On , 201_, before me, , notary
public, 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
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of San Diego
)
)
)
Attachment No. 3
On , 201_, before me, , notary
public, 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)
Attachment No. 3
EXHIBIT A
Legal Description of the Property
Real property in the City of National City, County of San Diego, State of California, described as
follows:
RESOLUTION NO. 2018 —
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION -HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY
AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE A
DISPOSITION AND DEVELOPMENT AGREEMENT WITH SAN DIEGO
HABITAT FOR HUMANITY AND SAN DIEGO COMMUNITY LAND TRUST
FOR THE DEVELOPMENT OF SIX AFFORDABLE HOMEOWNERSHIP
UNITS UNDER A COMMUNITY LAND TRUST WITH THE ELECTION
TO DEVELOP SIX ADDITIONAL AFFORDABLE ACCESSORY DWELLING
UNITS AT 405-419 WEST 18TH STREET IN NATIONAL CITY
WHEREAS, the Community Development Commission -Housing Authority
("CDC -HA") owns that certain real property commonly known as 405-419 West 18th Street in
the City of National City ("Property"); and
WHEREAS, San Diego Habitat for Humanity ("Habitat"), a 501(c)3 nonprofit
corporation, currently has a HOME CHDO (Community Housing Development Organization)
Agreement with the City of National City ("City") to rehabilitate or develop homeownership
opportunities for low-income households in the City; and
WHEREAS, Habitat has partnered with San Diego Community Land Trust
("SDCLT"), a 501(c)3 nonprofit corporation, to provide a unique development opportunity for the
Property using a Community Land Trust model that would create six (6) affordable units for sale
with the election to include an additional (6) affordable accessory dwelling units that could be
rented or sold; and
WHEREAS, the project consists of six (6) affordable single-family residential
dwelling units ("Affordable Units"), plus potentially six (6) accessory dwelling units, as defined in
California Government Code section 65852.2 ("Accessory Dwelling Units"), and all other
improvements to be constructed on the Property ("Project"); and
WHEREAS, CDC -HA, Habitat, and SDCLT desire to establish conditions for: (i)
the CDC -HA to transfer fee title to the Property to Habitat; (ii) Habitat to construct the Project on
the Property; (iii) Habitat to transfer the Property to SDCLT after completion of the Project; and
(iv) SDCLT to ground lease each of the Affordable Units (and each of the Accessory Dwelling
Units if SDCLT elects to sell the Accessory Dwelling Units) to eligible persons for an affordable
price.
NOW, THEREFORE, BE IT RESOLVED that the Community Development
Commission -Housing Authority of the City of National City hereby authorizes the Executive
Director to execute a Disposition and Development Agreement with San Diego Habitat for
Humanity and San Diego Community Land Trust for the development of six affordable
homeownership units under a Community Land Trust with the election to develop six additional
affordable accessory dwelling units at 405-419 West 18th Street in National City. Said
Disposition and Development Agreement is on file in the office of the City Clerk.
[Signature Page to Follow]
Resolution No. 2018 —
Page Two
PASSED and ADOPTED this 2nd day of October, 2018.
Ron Morrison, Chairman
ATTEST:
Leslie Deese, Secretary
APPROVED AS TO FORM:
Angil P. Morris -Jones
General Counsel
CITY OF NATIONAL CITY
Office of the City Clerk
1243 National City Blvd., National City, California 91950-4397
619-336-4228
Michael R. Dalla, CMC - City Clerk
SAN DIEGO HABITAT FOR HUMANITY
Disposition and Development Agreement
405-419 West 18th Street
Gregory Rose (Housing & Economic Development) forwarded a duplicate original
Agreement to San Diego Habitat for Humanity.