HomeMy WebLinkAboutHFH - APNs 627-092-050 and 627-092-054REQUEST:
PALM DESERT HOUSING AUTHORITY
STAFF REPORT
CONSIDERATION FOR APPROVAL OF ACTIONS RELATED TO THE
CONVEYANCE OF TWO SINGLE-FAMILY LOTS TO HABITAT FOR
HUMANITY OF THE COACHELLA VALLEY, INC. (PURSUANT TO HEALTH
AND SAFETY CODE 33433 (c)) KNOWN AS APN NOS. 627-092-050 AND 627-
092-054
SUBMITTED BY: Janet Moore, Director of Housing
DATE: November 13, 2014
CONTENTS: Authority Resolution No. HA- 69
Draft Disposition and Development Agreement
Habitat for Humanity of the Coachella Valley, Inc. Letter
Site Map
Recommendation
By Minute Motion, that the Authority Board:
1. Open the public hearing and accept testimony on the conveyance of two single-family lots
located at San Benito Circle known as APN 627-092-050 and APN 627-092-054 (the
"Property") to Habitat for Humanity of the Coachella Valley, Inc. ("Habitat") for the purpose of
constructing two single-family dwellings to be made available to qualified households of lower
income at least one of which shall be designed for a disabled veteran; and
2. Following public testimony, waive further reading and adopt Authority Resolution No. HA-
69 pursuant to California Health and Safety Code Section 33433 (c) approving the
conveyance of the Property to Habitat pursuant to a Disposition and Development Agreement
between the Authority and Habitat attached hereto (substantially as to form) (the
"Agreement"); and
3. Approve two deferred payment Trust Deeds in favor of the Authority in amounts
corresponding to a recent appraisal, based on lot square footage, for the donation values;
and
Authorize the Executive Director and/or Chairman to take any action deemed necessary for
the purpose of effectuating the lot donation and/or transfer of property as prescribed in the
Agreement.
Executive Summary
In August of 2012, the State Department of Finance (DOF) approved the transfer of certain assets to the
Authority from Lhe former redevelopment agency for the purpose of affordable housing. This approved
transfer included two vacant parcels on San Benito Circle that were acquired as part of the Alessandro
Alley project. In October 2010, the former Agency Board approved the transfer of the two parcels to
Habitat, however, the agreement was not finalized when the State took the action to eliminate
redevelopment agencies and we were not able to enter into an agreement to donate the lots to Habitat.
Upon approval by the DOF of the transfer staff has worked with Habitat to modify the Agreement to build
at least one of the homes for a disabled veteran The lots will be donated to Habitat and deferred
payment trust deeds will be recorded in favor of the Authority for the lot's donation value (approximately
$34,200 and $25,200 respectively).
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Staff Report
Approval of Conveyance of Vacant Parcels to Habitat
Page 2 of 2
November 13, 2014
Strategic Plan Objective
The proposed action will further the goals identified in the Envision Palm Desert strategic plan for Land
Use, Housing and Open Space Priority No. 2 by adding to the availability of affordable housing.
Discussion
The above -referenced lots are now owned by the Authority. On January 8, 2009, the former Agency
Board authorized reimbursement for acquisition costs of the lots using Housing Set -Aside funds in the
event the property was designated for a lower income household. They were acquired as part of the
Alessandro Alley widening project with the specific intent to construct a single-family dwelling on each lot
to be made available to lower income households.
Health and Safety Code Section 33433(a) and (b) generally provide that before any property of the former
Agency acquired, in whole or in part, directly or indirectly, with tax increment moneys is sold for
development pursuant to the redevelopment plan, the sale must first be approved by the City Council by
resolution after a public hearing and the resolution must contain certain findings. However, Health and
Safety Code Section 33433(c) provides that the requirements of subdivisions (a) and (b) will not apply to
the sale of a "small housing project" if the City Council adopts a resolution that authorizes the Agency to
sell small housing projects pursuant to Section 33433(c). Pursuant to its Resolution No. 2013-11 adopted
on February 14, 2013, the City Council authorized the Authority, as housing successor, to sell small
housing projects. The Property constitutes a small housing project.
Health and Safety Code 33433 (c) provides that the sale of a small housing project must be approved by
the Authority following a public hearing. The purpose of the public hearing is to receive public testimony
as prescribed by law. Notice of the time and place of the public hearing was published in a newspaper of
general circulation in the community for at least two (2) weeks prior to the hearing.
Attached for your review and approval is the proposed Agreement and related documents which provide
for the conveyance of the Property from the Authority to Habitat. The Agreement and related documents
provide for the recording of deferred payment Trust Deeds in the donation values, the construction of two
single-family homes, a covenant restricting the homes as affordable, resale price controls and Agency
option to purchase and the subsequent sale of each home by Habitat to a lower income household as
prescribed in the Agreement.
Fiscal Analysis
The fiscal impact to the Authority in connection with the proposed Agreement includes the auxiliary costs
to the Agency related to the conveyance of the land such as escrow fees.
Submitted by:
C
oore, Director of Housing
Dena tThent Head:
S. Gibson, Director of Finance
Y HOUSG AUTH
ll-1.--A6'
�w�cY �arr:saw
VERIFIED BY:
hn M. Wohlmuth, Executive Director Original on file witth Gig' C k's O icE
NCS' ? Jf10fl, i K, eqe/, r
RESOLUTION NO. HA- 69
A RESOLUTION OF THE PALM DESERT HOUSING AUTHORITY
APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT
BETWEEN THE AUTHORITY AND HABITAT FOR HUMANITY OF THE
COACHELLA VALLEY, INC., PURSUANT TO HEALTH AND SAFETY
CODE SECTION 33433(c)
RECITALS:
A. By its Resolution No. 03-04, the City Council of the City of Palm Desert
authorized the former Palm Desert Redevelopment Agency (the "Agency") to sell small
housing projects, as that term is defined in Health and Safety Code Section 33013,
pursuant to Health and Safety Code Section 33433(c).
B. Pursuant to Health and Safety Code Section 34175(b) and the California
Supreme Court's decision in California Redevelopment Association, et al. v. Ana
Matosantos, et al. (53 Cal. 4th 231(2011), on February 1, 2012, all assets, properties,
contracts, leases, books and records, buildings, and equipment of the Agency transferred to
the control of the Successor Agency to the Palm Desert Redevelopment Agency (the
"Successor Agency").
C. By its Resolution No. 2012-07 the City Council of the City of Palm Desert
elected that all assets, rights, powers, liabilities, duties, and obligations associated with
housing activities of the former Agency be transferred from the Successor Agency to the
Palm Desert Housing Authority (the "Authority").
D. By its Resolution No. HA-47, the Housing Authority accepted the housing
functions and assets of the former Agency.
E. By its Resolution 2013-11, the City Council of the City of Palm Desert confirmed
the authorization for the sale of small housing projects by the Authority.
THE PALM DESERT HOUSING AUTHORITY HEREBY FINDS, DETERMINES,
RESOLVES AND ORDERS AS FOLLOWS:
Section 1. The Palm Desert Housing Authority (the "Authority") owns two
lots located at San Benito Circle in the City of Palm Desert, California described as APN No.
627-092-050 and APN No. 627-092-054 (collectively, the "Property"). The Authority
proposes to sell the Property to Habitat for Humanity of the Coachella Valley, Inc.
("Habitat") for the purpose of Habitat constructing a single family dwelling on each lot for
sale to and occupancy by qualified low income households pursuant to the Disposition and
Development Agreement (the "Agreement") attached hereto.
Section 2. Following notice duly given, the Authority has held a full and
fair public hearing on the sale by the Authority of the Property to Habitat pursuant to Health
and Safety Code Section 33431. The Authority has made available to the public through the
offices of the Authority Secretary and City Clerk a copy of the Agreement prior to the public
hearing.
Section 3. Health and Safety Code Section 33433(a) and (b) generally
provide that before any property of the former Agency, acquired in whole or in part, directly
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San Benito Lots 98 & 99
Resolution No. HA- 69
or indirectly, with tax increment moneys is sold for development pursuant to the
redevelopment plan, the sale must first be approved by the City Council by resolution after a
public hearing and the resolution must contain certain findings. Health and Safety Code
Section 33433(c) provides that the requirements of subdivisions (a) and (b) will not apply to
the sale of a "small housing project". Pursuant to its Resolution No. 2013-11, the City
Council authorized the Authority, as housing successor to the former redevelopment
agency, to sell small housing projects pursuant to Health and Safety Code Section
33433(c).
Section 4. The Authority hereby finds and determines that the Property
qualifies as a "small housing project" as that term is defined in Health and Safety
Code 33013.
Section 5. The Authority hereby approves the Agreement and the
Executive Director is hereby authorized and directed, for and in the name and on behalf of
the Authority, to execute and deliver any and all necessary documents and instruments and
to do all things which he deems necessary or proper in order to effectuate the purposes of
this Resolution and the transactions contemplated hereby; including the Agreement on file
with the Authority Secretary and the City Clerk, with such additions thereto or changes or
insertions therein as may be approved by the Executive Director (such approval to be
conclusively evidenced by such execution and delivery).
Section 6. The officers of the Authority are hereby authorized and
directed, jointly and severally, to execute and deliver any and all necessary documents and
instruments and to do all things which they may deem necessary or proper in order to
effectuate the purposes of this Resolution and the transactions contemplated hereby; and
any such actions previously taken by such officers are hereby ratified, confirmed and
approved.
Section 7. Authority staff is hereby directed, within 30 days after the end
of the Authority's fiscal year in which the sale of the Property to Habitat occurs, to file a
report with the City Council which discloses the name of the buyer, the legal description or
street address of the Property, the date of the sale, the consideration for which the Property
was sold by the Authority to the buyer, and the date on which the Authority held its public
hearing for the sale.
PASSED, APPROVED and ADOPTED this 13th day of November, 2014.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Rachelle D. Klassen, Secretary
Van G. Tanner, Chairman
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Resolution no. HA-69
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DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN THE
PALM DESERT HOUSING AUTHORITY
"Authority"
AND
HABITAT FOR HUMANITY OF THE COACHELLA VALLEY, INC.
"Developer"
NOVEMBER 13, 2014
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DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement"),
dated as of November 13, 2014 (the "Effective Date") is entered into by and between
the PALM DESERT HOUSING AUTHORITY, a public body, corporate and politic (the
"Authority"), and HABITAT FOR HUMANITY OF THE COACHELLA VALLEY, INC., a
California non-profit public benefit corporation (the "Developer"). The Authority and the
Developer are hereinafter sometimes individually referred to as a "party" and collectively
referred to as the "parties".
RECITALS
This Agreement is entered into with reference to the following facts:
A. The purpose of this Agreement is to effectuate the Redevelopment Plan
for Project Area No. 1 (the "Redevelopment Plan") of the Authority, in the City of Palm
Desert, California, by facilitating construction of low income single-family residences on
real property within the boundaries of Project Area No. 1 (the "Project Area").
B. The Redevelopment Plan has been approved and adopted by Ordinance
No. 80 of the City of Palm Desert adopted on July 16, 1975.
C. The Authority is a public body, corporate and politic, exercising
governmental functions and powers, and organized and existing under the State of
California Health and Safety Code beginning with Section 34200.
D. The Authority owns the fee interest in two (2) parcels of real property in
the Project Area located in the City of Palm Desert, County of Riverside, State of
California, as more particularly described in Exhibit A attached hereto and incorporated
herein by this reference as Parcel A and Parcel B (Parcel A and Parcel B are referred to
herein collectively as the "Property"). The Developer wishes to acquire fee title to the
Property from the Authority to enable the Developer to construct the Improvements (as
such term is defined in Section 1.1.26) on the Property (the "Project").
E. Development of the Project will assist in the elimination of blight in the
Project Area, provide additional jobs, and substantially improve the economic and
physical conditions in the Project Area, and provide single-family residences to qualified
households of low income, all in accordance with the purposes and goals of the
Redevelopment Plan.
F. The Authority has determined that the land uses specified in this
Agreement and the provisions relating to development of the Project specified in this
Agreement are consistent with the provisions of the Redevelopment Plan and each of
its applicable elements.
G. The Authority has determined that the development of the Project
pursuant to this Agreement is in the best interests of the Authority, and the health,
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safety and welfare of the residents and taxpayers of the Project Area, and is in accord
with the public purposes and provisions of applicable state and local laws.
H. A material inducement to the Authority to enter into this Agreement is the
agreement by the Developer to develop the Project within a limited period of time, and
the Authority would be unwilling to enter into this Agreement in the absence of an
enforceable commitment by the Developer to develop the Project within such period of
time.
NOW, THEREFORE, in reliance upon the foregoing Recitals, in consideration of
the mutual covenants in this Agreement and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The following terms as used in this Agreement shall have the
meanings given unless expressly provided to the contrary:
1.1.1 AHRLA means the Affordable Housing Restriction and Lien
Agreement in the form attached hereto as Exhibit F and incorporated herein by this
reference.
1.1.2 Authority means the Palm Desert Housing Authority, a public body,
corporate and politic, exercising with full power and authority to execute this Agreement.
The principal office of the Authority is located at 73-510 Fred Waring Drive, Palm
Desert, CA 92260-2578.
1.1.3 Agreement means this Disposition and Development Agreement.
1.1.4 Buyers is defined in Section 5.3.2.
1.1.5 Certificate of Completion means a certificate described in
Section 3.15, to be provided by the Authority to the Developer upon satisfactory
completion of construction of the Improvements.
1.1.6 Certificate of Occupancy means a final certificate of occupancy
issued by the City for all of the Improvements.
1.1.7 City means the City of Palm Desert, a municipal corporation,
exercising governmental functions and powers, and organized and existing under the
laws of the State of California. The principal office of the City is located at 73-510 Fred
Waring Drive, Palm Desert, CA 92260-2578.
1.1.8 Close of Escrow and Closing are defined in Section 2.3.2.
1.1.9 Commencement Date is defined in Section 3.1.1.
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1.1.10 Completion Date is defined in Section 3.1.1.
1.1.11 Deed of Trust means the Deed of Trust, Assignment of Rents and
Security Agreement in the form attached hereto as Exhibit G and incorporated herein by
this reference.
1.1.12 Deemed Disapproved Exceptions is defined in Section 2.5.2.
1.1.13 Default is defined in Section 6.1.
1.1.14 Developer means Habitat for Humanity of the Coachella Valley,
Inc., a California non-profit public benefit corporation. The principal office of the
Developer for purposes of this Agreement is 34500 Gateway Drive, Suite 100, Palm
Desert, California 92211, Attention: Marty Hartley, Executive Director.
1.1.15 Disapproved Exceptions is defined in Section 2.5.2.
1.1.16 Disapproval Notice is defined in Section 2.5.2.
1.1.17 Due Diligence Period is defined in Section 2.7.1.
1.1.18 Escrow is defined in Section 2.3.1.
1.1.19 Escrow Holder means Foresite Escrow, Inc. The principal office of
the Escrow Holder for purposes of this Agreement is 41-995 Boardwalk, Suite G-2,
Palm Desert, California 92211, Telephone: (760) 773-5333; Fax: (760) 773-9289;
Attention: Esther Lopez.
1.1.20 Force Maieure Delay is defined in Section 6.7.
1.1.21 Grant Deed is defined in Section 2.5.2.
1.1.22 Hazardous Materials means any chemical, material or substance
now or hereafter defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous waste," "restricted
hazardous waste," "toxic substances," "pollutant or contaminant," "imminently
hazardous chemical substance or mixture," "hazardous air pollutant," "toxic pollutant," or
words of similar import under any local, state or federal law or under the regulations
adopted or publications promulgated pursuant thereto applicable to the Property,
including, without limitation: the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. § 9601, et seq. ("CERCLA"); the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. § 1801, et seq.; the
Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251, et seq.; and the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq. The term
"Hazardous Materials" shall also include any of the following: any and all toxic or
hazardous substances, materials or wastes listed in the United States Department of
Transportation Table (49 CFR 172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302) and in any and all amendments thereto in
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effect as of the date of the close of any escrow; oil, petroleum, petroleum products
(including, without limitation, crude oil or any fraction thereof), natural gas, natural gas
liquids, liquefied natural gas or synthetic gas usable for fuel, not otherwise designated
as a hazardous substance under CERCLA; any substance which is toxic, explosive,
corrosive, reactive, flammable, infectious or radioactive (including any source, special
nuclear or by-product material as defined at 42 U.S.C. § 2011, et seq.), carcinogenic,
mutagenic, or otherwise hazardous and is or becomes regulated by any governmental
authority; asbestos in any form; urea formaldehyde foam insulation; transformers or
other equipment which contain dielectric fluid containing levels of polychlorinated
biphenyl's; radon gas; or any other chemical, material or substance (i) which poses a
hazard to the Property, to adjacent properties, or to persons on or about the Property,
(ii) which causes the Property to be in violation of any of the aforementioned laws or
regulations, or (iii) the presence of which on or in the Property requires investigation,
reporting or remediation under any such laws or regulations.
1.1.23 Holder is defined in Section 4.1.1.
1.1.24 Improvements means the improvements described in Section 3.1.1.
1.1.25 Outside Date is defined in Section 2.3.2.
1.1.26 Parcel A and Parcel B are described in Exhibit A.
1.1.27 Plans and Specifications is defined in Section 3.2.
1.1.28 Proiect is defined in Recital D.
1.1.29 Proiect Area is defined in Recital A.
1.1.30 Promissory Note means a Promissory Note Secured by Deed of
Trust in the form attached hereto as Exhibit H and incorporated herein by this reference.
1.1.31 Property is defined in Recital D.
1.1.32 Property Documents is defined in Section 2.7.2.
1.1.33 Released Parties is defined in Section 2.8.
1.1.34 Review Period is defined in Section 2.5.2.
1.1.35 Right of Entry Agreement is defined in Section 2.7.1.
1.1.36 Schedule of Performance means the schedule attached hereto as
Exhibit B and incorporated herein by this reference.
1.1.37 Scope of Development means the description the Improvements
contained in Exhibit D attached hereto and incorporated herein by this reference.
1.1.38 Survey is defined in Section 2.5.1.
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1.1.39 Title Company is defined in Section 2.5.3.
1.1.40 Title Policy is defined in Section 2.5.3.
1.1.41 Title Report is defined in Section 2.5.1.
1.1.42 Transaction Costs means all attorney's fees, staff time, appraisal
costs, and costs of financial advisors and other consultants.
1.1.43 Transfer is defined in Section 4.1.1.
ARTICLE 2
CONVEYANCE OF THE PROPERTY
2.1 Conveyance. Subject to and in accordance with the terms and conditions
herein set forth, the Authority agrees to convey the Property to the Developer, and the
Developer agrees to acquire the Property from the Authority.
2.2 Consideration. The Authority shall convey the Property to the Developer in
consideration for the Developer's agreement to construct the Improvements, the
covenants of the Developer and use restrictions set forth in the AHRLA, and the
Developer's execution and delivery of Promissory Notes for Parcel A in the amount of
Thirty Four Thousand Two Hundred Dollars ($34,200) and for Parcel B in the amount of
Twenty Five Thousand Two Hundred Dollars ($25,200) and Deeds of Trust with
respect to each of Parcel A and Parcel B, respectively.
2.3 Escrow.
2.3.1 Opening of Escrow. Within thirty (30) days after the parties' full
execution of this Agreement, the Developer and the Authority shall open an escrow (the
"Escrow") with the Escrow Holder for the transfer of the Property to the Developer. The
parties shall deposit with the Escrow Holder a fully executed duplicate original of this
Agreement, which shall serve as the escrow instructions (which may be supplemented
in writing by mutual agreement of the parties) for the Escrow. The Escrow Holder is
authorized to act under this Agreement, and to carry out its duties as the Escrow Holder
hereunder.
2.3.2 Close of Escrow. "Close of Escrow" or "Closing" means the date
Escrow Holder causes the Grant Deed (as hereinafter defined) to be recorded in the
Official Records of the County of Riverside. Possession of the Property shall be
delivered to the Developer on the Close of Escrow. Close of Escrow shall occur within
sixty (60) days or sooner following the opening of Escrow (the "Outside Date"). If for
any reason other than a default by the Authority or Developer the Closing does not
occur on or before the Outside Date, this Agreement shall automatically terminate, all
monies and documents deposited into the Escrow shall be promptly retumed to the
appropriate party, and each party shall pay its one-half (1/2) of any Escrow charges and
fees in connection with such termination.
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2.3.3 Delivery of Closing Documents.
(a) The Authority and Developer agree to deliver to Escrow
Holder, at least two (2) days prior to the Close of Escrow, the following instruments and
documents, the delivery of each of which shall be a condition precedent to the Close of
Escrow:
(b) The Grant Deed, duly executed and acknowledged by the
Authority, conveying a fee simple interest in the Property to Developer, subject only to
such exceptions to title as Developer may have approved or have been deemed to
approve pursuant to Section 2.5.2;
(c) Two (2) copies of the AHRLA (one pertaining to Parcel A
and the other to Parcel B), each duly executed and acknowledged by the Developer;
(d) Two (2) copies of the Promissory Note (one pertaining to
Parcel A and the other to Parcel B), Parcel A in the stated principal amount of Thirty
Four Thousand Two Hundred Dollars ($34,200) and Parcel B in the stated principal
amount of Twenty Five Thousand Two Hundred Dollars ($25,200) and duly executed by
the Developer;
(e) Two (2) copies of the Deed of trust (one pertaining to Parcel
A and the other to Parcel B), each duly executed and acknowledged by the Developer;
(f) Two (2) copies of the Notice of Affordability Restriction on
Transfer of Property in the form attached hereto as Exhibit I and incorporated herein by
this reference (one pertaining to Parcel A and the other to Parcel B) each duly executed
and acknowledged by Authority and Developer;
(g) The Authority's affidavit as contemplated by California
Revenue and Taxation Code Section 18662;
(h) A Certification of Non -Foreign Status signed by Authority in
accordance with Internal Revenue Code Section 1445; and
(I) Such proof of the Authority's and Developer's authority and
authorization to enter into this transaction as the Title Company may reasonably require
in order to issue the Title Policy.
The Authority and the Developer further agree to execute such reasonable
and customary additional documents, and such additional escrow instructions, as may
be reasonably required to close the transaction which is the subject of this Agreement
pursuant to the terms hereof.
2.4 Conditions to Close of Escrow. The obligations of the Authority and
Developer to close the transaction which is the subject of this Agreement shall be
subject to the satisfaction, or waiver in writing by the party benefited thereby, of each of
the following conditions:
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2.4.1 For the benefit of the Authority, the Developer shall have deposited
such funds as are necessary to pay for costs and expenses payable by Developer
hereunder.
2.4.2 For the benefit of the Authority, all actions and deliveries to be
undertaken or made by Developer on or prior to the Close of Escrow shall have
occurred, as reasonably determined by the Authority.
2.4.3 For the benefit of the Developer, all actions and deliveries to be
undertaken or made by the Authority on or prior to the Close of Escrow shall have
occurred, as reasonably determined by the Developer.
2.4.4 For the benefit of the Authority, all Authority approvals required to
be obtained prior to the Close of Escrow shall have been so obtained.
2.4.5 For the benefit of the Authority, the Developer shall have executed
and delivered to Escrow Holder all documents and funds required to be delivered to
Escrow Holder under the terms of this Agreement and the Developer shall otherwise
have satisfactorily complied with its obligations hereunder.
2.4.6 For the benefit of the Developer, the Authority shall have executed
and delivered to Escrow Holder all documents and funds required to be delivered to
Escrow Holder under the terms of this Agreement and the Authority shall otherwise
have satisfactorily complied with its obligations hereunder.
2.4.7 For the benefit of the Authority, the representations and warranties
of the Developer contained in this Agreement shall be true and correct in all material
respects as of the Close of Escrow.
2.4.8 For the benefit of the Developer, Title Company shall be irrevocably
committed to issuing in favor of the Developer the Title Policy, in form and substance,
and with endorsements reasonably acceptable to the Developer, as provided in Section
2.5.3.
2.5 Condition of Title: Survey: Title Insurance.
2.5.1 Within five (5) business days after the parties' full execution of this
Agreement, the Authority shall deliver to the Developer for the Developer's review and
approval, (i) a current preliminary title report covering the Property (the "Title Report")
and legible copies of any instruments noted as exceptions thereon, and (ii) any survey
of the Property in the Authority's possession. The Developer at its sole expense may
obtain a current or updated ALTA survey of the Property in connection with the issuance
of the Title Policy and the Authority shall cooperate with the same. Any current or
updated survey of the Property undertaken by the Developer shall be prepared by a
registered surveyor and shall be completed within thirty (30) days following the
Developer's receipt of the Title Report. Any survey provided by the Authority or
obtained by the Developer are each a "Survey" hereunder.
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2.5.2 The Developer shall have fifteen (15) days after the date of the
Developer's receipt of the Title Report and the Survey (if the Authority provides a
Survey or the Developer obtains a Survey as described in Section 2.5.1) (the "Review
Period") to disapprove any exceptions to title shown on the Title Report or reflected on
the Survey (collectively, "Disapproved Exceptions") and to provide Authority with notice
thereof describing the defect with reasonable particularity (the "Disapproval Notice").
Any exceptions to title not disapproved within the Review Period shall be deemed
approved. Within ten (10) days after the Authority's receipt of the Disapproval Notice,
the Authority shall notify the Developer whether or not the Authority intends to remove
the Disapproved Exceptions. The Authority shall be under no obligation to remove any
Disapproved Exception, but the Authority agrees to cooperate in good faith with the
Developer in the Developer's efforts to eliminate any Disapproved Exception, provided
the Authority is not obligated to pay any sum or assume any liability in connection with
the elimination of any such Disapproved Exception. If the Authority notifies the
Developer that the Authority intends to eliminate any Disapproved Exception, the
Authority shall do so at least five (5) days prior to the Close of Escrow. If the Authority
notifies the Developer that the Authority does not intend to eliminate any Disapproved
Exception(s), the Developer, by notifying the Authority within five (5) days after its
receipt of such notice, may elect to terminate this Agreement or take the Property
subject to the Disapproved Exception(s). Notwithstanding the foregoing, the Authority
covenants to pay in full all loans secured by deeds of trust, any mechanics' and
materialmen's liens, and any other monetary liens (other than liens for charges,
assessments, taxes, and impositions subject to proration as provided in Section 2.6.2)
(collectively, the "Deemed Disapproved Exceptions") prior to, or concurrently with, the
Close of Escrow. The Title Policy shall include such endorsements as the Developer
shall reasonably request. Any endorsements to the Title Policy are to be paid for by the
Developer. Notwithstanding the foregoing, the Developer may notify the Authority of its
disapproval of an exception to title (including exceptions reflected on the Survey) first
raised by Title Company or the surveyor after the Review Period, or otherwise first
disclosed to the Developer after the Review Period, by the earlier of (a) within ten (10)
days after the same was first raised or disclosed to the Developer in writing, and
(b) fifteen (15) days prior to the Close of Escrow. With respect to any exceptions
disapproved by the Developer in such notice, the Authority shall have the same option
to eliminate such exceptions that applies to Disapproved Exceptions, and the Developer
shall have the same option to accept title subject to such exceptions or to terminate this
Agreement. At the Close of Escrow, the Developer shall receive title to the Property by
grant deed substantially in the form attached hereto as Exhibit E and incorporated
herein by this reference (the "Grant Deed").
2.5.3 At Closing, the Developer shall receive a CLTA Owner's Standard
Coverage Policy of Title Insurance (the "Title Policy'), together with all endorsements
requested by the Developer, issued by First American Title Insurance Company ("Title
Company") in an amount to be designated by the Developer, insuring that title to the
Property is free and clear of all Disapproved Exceptions, all Deemed Disapproved
Exceptions and all liens, easements, covenants, conditions, restrictions, and other
encumbrances of record except (a) current taxes and assessments of record, but not
any overdue or delinquent taxes or assessments, (b) the matters set forth or referenced
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in the Grant Deed, the AHRLA, and the Deed of Trust, and (c) such other
encumbrances as the Developer approves in writing including those reflected in the Title
Report for the Property approved by Developer, or as are deemed approved by
Developer as provided in Section 2.5.2. The Developer may obtain an extended
coverage policy of title insurance at its own cost.
2.6 Escrow and Title Charges: Prorations.
2.6.1 The Developer shall be solely responsible for and shall pay all
documentary transfer taxes, and the costs of (i) any Survey obtained by the Developer,
(ii) all title insurance premiums for the Title Policy, (iii) any endorsements to the Title
Policy, and (iv) all other usual and customary costs, expense and charges relating to the
escrow and conveyance of title to the Property, including without limitation, recording
fees, document preparation charges and escrow fees. Each party shall be responsible
for its own Transaction Costs.
2.6.2 All non -delinquent and current installments of real estate and
personal property taxes, other governmental charges, regular assessments, and
impositions against the Property on the basis of the current fiscal year or calendar year,
if any, shall be pro -rated as of the Close of Escrow based on the actual current
statements or tax bills, if any. If the Close of Escrow shall occur before the tax rate is
fixed, the apportionment of taxes on the Close of Escrow shall be based on the tax rate
for the next preceding year applied to the latest assessed valuation after the tax rate is
fixed, which assessed valuation shall be based on the Property's assessed value prior
to the Close of Escrow and the Authority and Developer shall, when the tax rate is fixed,
make any necessary adjustment. All prorations shall be determined on the basis of a
365 day year. The provisions of this Section 2.6.2 shall survive the Close of Escrow
and the recordation of the Grant Deed and shall not be deemed merged into the Grant
Deed upon its recordation.
2.7 Due Diligence Period: Access.
2.7.1 During the period (the "Due Diligence Period") commencing on the
date of the parties' full execution of this Agreement and ending at 5:00 p.m. on the date
which is fifteen (15) days thereafter, the Developer may inspect the Property as
necessary to (i) approve all zoning and land use matters relating to the Property, and
(ii) approve the physical condition of the Property. Subject to the terms of the Right of
Entry and Access Agreement in the form of which is attached hereto as Exhibit C (the
"Right of Entry Agreement"), the Developer and its agents shall have the right to enter
upon the Property during the Due Diligence Period to make inspections and other
examinations of the Property and the improvements thereon, including without
limitation, the right to perform surveys, soil and geological tests of the Property and the
right to perform environmental site assessments and studies of the Property. Prior to
the Developer's entry upon the Property, the parties shall execute the Right of Entry
Agreement. The Authority shall reasonably cooperate with the Developer in its conduct
of the due diligence review during the Due Diligence Period. In the event the Developer
does not approve of the condition of the Property by written notice to the Authority prior
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to the expiration of the Due Diligence Period, this Agreement shall terminate, and,
except as otherwise expressly stated in this Agreement, neither party shall have any
further rights or obligations to the other party.
2.7.2 The Authority has delivered to the Developer copies of those
certain documents related to the Property which are listed in Exhibit J attached hereto
(collectively, the "Property Documents"). In addition, prior to the end of the Due
Diligence Period, the Developer may, upon five (5) business days' notice to the
Authority, review any additional documents relating to the Property at the Authority's
offices. The Authority does not expressly or impliedly represent or warrant that the
contents of the Property Documents are complete or accurate.
2.8 Condition of the Property. The Property shall be conveyed from the
Authority to the Developer on an "AS IS" condition and basis with all faults and the
Developer agrees that the Authority has no obligation to make modifications,
replacements or improvements thereto. Except as expressly and specifically provided
in this Agreement, the Developer and anyone claiming by, through or under the
Developer hereby waives its right to recover from and fully and irrevocably releases the
Authority and the City, and their respective council members, board members, officers,
directors, employees, representatives, agents, advisors, servants, independent
contractors, attorneys, successors and assigns, and all persons, firms, corporations and
organizations acting on the Authority's or City's behalf (collectively, the "Released
Parties") from any and all claims, responsibility and/or liability that the Developer may
now have or hereafter acquire against any of the Released Parties for any costs, loss,
liability, damage, expenses, demand, action or cause of action arising from or related to
the matters pertaining to the Property described in this Section 2.8. This release
includes claims of which the Developer is presently unaware or which the Developer
does not presently suspect to exist which, if known by the Developer, would materially
affect the Developer's release of the Released Parties. If the Property is not in a
condition suitable for the intended use or uses, then it is the sole responsibility and
obligation of the Developer to take such action as may be necessary to place the
Property in a condition suitable for development of the Project thereon. Except as
specifically provided in this Agreement and without limiting the generality of the
foregoing, THE AUTHORITY MAKES NO REPRESENTATION OR WARRANTY AS TO
(i) THE VALUE OF THE PROPERTY; (ii) THE INCOME TO BE DERIVED FROM THE
PROPERTY; (iii) THE HABITABILITY, MARKETABILITY, PROFITABILITY,
MERCHANTABILITY OR FITNESS FOR PARTICULAR USE OF THE PROPERTY;
(iv) THE MANNER, QUALITY, STATE OF REPAIR OR CONDITION OF THE
PROPERTY; (v) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS
OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (vi) COMPLIANCE WITH
ANY ENVIRONMENTAL PROTECTION OR POLLUTION LAWS, RULES,
REGULATIONS, ORDERS OR REQUIREMENTS; (vii) THE PRESENCE OR
ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER OR ADJACENT TO THE
PROPERTY; (viii) THE FACT THAT ALL OR A PORTION OF THE PROPERTY MAY
BE LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE; OR (ix) WITH
RESPECT TO ANY OTHER MATTER, THE DEVELOPER FURTHER
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ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY
TO INSPECT THE PROPERTY AND REVIEW INFORMATION AND
DOCUMENTATION AFFECTING THE PROPERTY, THE DEVELOPER IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND REVIEW OF
SUCH INFORMATION AND DOCUMENTATION AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY THE AUTHORITY.
THE DEVELOPER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542,
WHICH IS SET FORTH BELOW:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR."
BY INITIALING BELOW, DEVELOPER HEREBY WAIVES THE PROVISIONS
OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE
THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES.
Developer's Initials
The waivers and releases by the Developer herein contained shall survive the
Close of Escrow and the recordation of the Grant Deed and shall not be deemed
merged into the Grant Deed upon its recordation.
2.9 Escrow Holder.
2.9.1 Escrow Holder is authorized and instructed to:
(a) Pay and charge the Developer for any charges payable by
the Developer under this Article. Before such payments are made, the Escrow Holder
shall notify the Authority and the Developer of the fees, charges, and costs necessary to
close the Escrow;
(b) Pay and charge the Authority for any charges payable by the
Authority under this Article. Before such payments are made, the Escrow Holder shall
notify the Authority and the Developer of the fees, charges, and costs necessary to
close the Escrow;
(c) Disburse funds and deliver the Grant Deed and other
documents to the parties entitled thereto when the conditions of the Escrow and this
Agreement have been fulfilled by the Authority and the Developer; and
(d) Record the Grant Deed, the AHRLAs, Deeds of Trust, and
any other instruments delivered through the Escrow, if necessary or proper, to vest title
in the Developer in accordance with the terms and provisions of this Agreement.
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2.9.2 Any amendment of these escrow instructions shall be in writing and
signed by both the Authority and the Developer.
2.9.3 All communications from the Escrow Holder to the Authority or the
Developer shall be directed to the addresses and in the manner established in
Section 8.1 of this Agreement for notices, demands and communications between the
Authority and the Developer.
2.9.4 The responsibility of the Escrow Holder under this Agreement is
limited to performance of the obligations imposed upon it under this Article, and any
amendments hereto.
ARTICLE 3
DEVELOPMENT OF THE PROPERTY
3.1 Scope of Development.
3.1.1 The "Improvements" to be completed by Developer shall be those
described in the Scope of Development Exhibit D. The Developer shall, subject to
extension for force majeure delays as provided in Section 6.7 below, commence
construction of the Project no later than the date one hundred eighty (180) days after
the Closing ("Commencement Date"). Subject to force majeure delays as provided in
Section 6.7 below, the Project shall be completed no later than three hundred sixty-five
(365) days after the Commencement Date ("Completion Date"). The Developer shall
not unreasonably postpone the construction or completion of the Project. The
Improvements shall be designed for single-family residential use, as further described in
Exhibit D, and shall comply with all zoning and general plan requirements applicable to
the Property, and the Property and Improvements shall be sold to Qualified Households
(as defined in the AHRLA) by no later than five hundred forty (540) days after the
issuance of the Certificate of Occupancy. To the extent of any inconsistency between
the Schedule of Performance and this Section 3.1.1, this Section 3.1.1 shall control.
3.1.2 The Developer, at its sole cost and expense, shall construct the
Improvements, and all associated public infrastructure improvements required by the
City pursuant to its conditions of approval, if any, in accordance with the Schedule of
Performance, within the limitations established therefor in this Agreement, and as
required by the City. The Developer shall also comply with any and all applicable
federal, state and local laws, rules and regulations, and any applicable mitigation
measures adopted pursuant to the California Environmental Quality Act.
3.2 Authority's Riaht to Review Plans and Specifications. In connection with
design of the Improvements, the Developer shall submit basic concept drawings,
preliminary plans, and final plans and specifications (collectively, the "Plans and
Specifications") to the Authority and to the City for review by its Development Services
Department. Basic concept drawings shall consist of (a) all building elevations,
rendered, at a scale of'/=1'-0"; (b) a site plan; and (c) a conceptual landscape plan, all
on standard 18"x24" sheets. Preliminary plans shall consist of the same plans in the
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same format in preliminary design status as identified in a standard American Institute
of Architects design contract, with the addition of a material schedule/color board for the
buildings, and a plant material schedule for the landscape plan. Final Plans and
Specifications shall consist of the set of construction documents from which the Project
will be built. The Developer shall construct the Improvements in compliance with the
final Plans and Specifications approved by the Authority and City.
3.3 Approval of Plans and Specifications. Without limiting the provisions
pertaining to the Improvements and contained in the Scope of Development, City's
Development Services Department shall review the Plans and Specifications for
appropriate entitlement. Submission, review, and either approval or disapproval of the
Plans and Specifications shall be consistent with the time periods needed for plan
review by the City's Development Services Department. Any disapproval of the Plans
and Specifications shall state in writing the reasons for disapproval. The Developer,
upon receipt of a disapproval, shall revise such portion of the plans, drawings or related
documents in a manner that satisfies the reasons for disapproval and shall as soon as
reasonably practicable resubmit such revised portions to the City's Development
Services Department. The City's Development Services Department shall approve or
disapprove such revised portions in the same manner as provided in this Agreement for
approval or disapproval of the Plans and Specifications initially submitted to the City's
Development Services Department.
3.4 Changes in Plans and Specifications. If the Developer desires to make
any material change to any of the Plans and Specifications after their approval by the
City's Development Services Department, the Developer shall submit the proposed
changes to the City's Development Services Department for its approval. The City's
Development Services Department shall approve or disapprove such revised portions in
the same manner and within the same time limits as provided in this Agreement for
approval or disapproval of the Plans and Specifications initially submitted to the
Authority.
3.5 Cost of Construction. The cost of constructing the Improvements,
together with all on and off -site improvements, as set forth in the Scope of Development
or otherwise required by the City, City Engineer, or City Planner, shall be borne solely
by the Developer. The parties hereby acknowledge and agree that any increase in
costs above the amounts projected or assumed by Developer, or decreases in revenues
below the amounts projected or assumed by Developer, shall be at the sole financial
risk of Developer.
3.6 Further Development Matters. The Developer understands and agrees
that as a condition of the conveyance of the Property the Developer shall develop, or
cause to be developed, two single-family residences in accordance with the Scope of
Development. The Developer shall endeavor to install as many features set forth in the
Scope of Development as reasonably possible; however, any altemative features and/or
products may be proposed that will provide more effective features or better
performance. All such altemative features and/or products shall be subject to the prior
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approval of the City. The Scope of Development may be revised from time to time as
necessary and if mutually agreed upon in writing between Developer and City.
3.7 City and Other Governmental Agency Permits and Approvals. Before
commencement of construction or development of any work of improvements on the
Property, the Developer shall (at the Developer's expense) secure, or cause to be
secured, any and all permits, which may be required by the City, or any other
governmental agency having jurisdiction over such construction or development.
3.8 Construction Schedule. Subject to force majeure delays as provided in
Section 6.7, the Developer shall begin and complete all construction within the times
specified in the Schedule of Performance.
3.9 Progress of Construction. During construction of the Improvements on the
Property, the Developer shall submit to the Authority within ten (10) days following each
request of the Authority therefore (which requests shall be submitted no more frequently
than monthly), a written report of the progress to date of the construction. The report
shall be in such form and detail as to reasonably inform the Authority of the status of
construction to date, and shall include a reasonable number of photographs (if so
requested by the Authority) taken since the last report by the Developer.
3.10 Rights of Access. In addition to those rights of access to and across the
Property to which the Authority and the City may be entitled by law, and as additionally
provided in the Scope of Development, members of the staffs of the Authority and the
City shall have a reasonable right of access to the Property, without charge or fee, at
any reasonable time, to inspect the work being performed at the Property.
3.11 Local. State and Federal Laws. The Developer shall carry out the
construction of the Improvements in conformity with all applicable laws, including all
applicable federal, state and local occupation, safety and health laws, rules, regulations
and standards. Without limiting the foregoing, the Developer shall construct or cause
the Improvements to be constructed in full compliance with all applicable provisions of
state, federal and local prevailing wage laws and all rules and regulations promulgated
pursuant thereto, including, without limitation, the prevailing wage laws of the State of
California set forth in the California Labor Code, Division 2, Part 7 and California Code
of Regulations, Title 8. The Developer agrees to indemnify, defend and hold the
Authority harmless from and against any cost, expense, claim, charge or liability relating
to or arising directly or indirectly from any breach by or failure of the Developer or its
contractor(s) or agents to comply with such laws, rules or regulations. The
indemnification obligations described in this Section 3.11 shall survive the termination of
this Agreement and the recordation of the Grant Deed and shall not be deemed merged
into the Grant Deed upon its recordation.
3.12 Nondiscrimination During Construction. Developer for itself and its
successors and assigns agrees that in the construction of the improvements on the
Property provided for in this Agreement:
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3.12.1 Developer will not discriminate against any employee or applicant
for employment because of race, color, religion, creed, national origin, ancestry, age,
marital status, sex or sexual orientation. Developer will take reasonable action to
ensure that applicants are employed, and that employees are treated during
employment without regard to their race, color, religion, creed, national origin, ancestry,
physical handicap, medical condition, age, marital status, sex or sexual orientation.
Such action shall include, but not be limited to, the following: employment, upgrading,
demotion, or transfer; recruitment or recruitment advertising, layoff or termination; rates
of pay or other forms of compensation; and selection for training, including
apprenticeship. Developer agrees to post in conspicuous places, available to
employees and applicants for employment, notices setting forth the provisions of this
nondiscrimination clause.
3.12.2 Developer will, in all solicitations or advertisements for employees
placed by or on behalf of Developer, state that all qualified applicants will receive
consideration for employment without regard to race, color, religion, creed, national
origin, ancestry, disability, age, marital status, sex or sexual orientation.
3.12.3 Developer will cause the foregoing provisions to be inserted in all
contracts for any work covered by this Agreement so that such provisions will be binding
upon each contractor and subcontractor, provided that the foregoing provisions shall not
apply to contracts or subcontracts for standard commercial supplies or raw materials.
Developer shall allow representatives of Authority access to its employment records
related to this Agreement during regular business hours to verify compliance with these
provisions when so requested by Authority.
3.13 Zoning and Land Use Requirements; Environmental Review.
3.13.1 Developer will attend all proceedings, which may be necessary so
that the development and use of the Property shall be in conformity with applicable
zoning and general plan requirements of the City.
3.13.2 Developer shall take all necessary steps so that the development
and use of the Property shall be in conformity with applicable zoning and general plan
requirements, including the conditions of approval of any required land use entitlements,
and that all applicable environmental mitigation measures and other requirements shall
have been complied with.
3.14 No Authority Created. In performing this Agreement, the Developer is an
independent contractor and not the agent of the Authority or the City. The Authority and
the City are not agents of the Developer. Neither the Authority nor the City shall have
any responsibility whatsoever for payment to any contractor or supplier of the
Developer.
3.15 Certificate of Completion.
3.15.1 After (i) completion of construction by the Developer of all of the
Improvements, (ii) the Developer has obtained a Certificate of Occupancy, and (iii) the
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Developer has caused a notice of completion (as described in California Civil Code
Section 3093) with respect to the Improvements to be recorded in the Official Records
of Riverside County, California, the Authority shall, following written request by the
Developer, fumish the Developer with a Certificate of Completion for the Improvements
within sixty (60) days of such request. The Certificate of Completion shall be in the form
attached hereto as Exhibit K and incorporated herein by this reference. The Authority
shall not unreasonably withhold, condition or delay the issuance of the Certificate of
Completion. The Certificate of Completion shall be, and shall so state that it is, a
conclusive determination of satisfactory completion by the Developer of all of its
construction obligations under this Agreement as to the Improvements.
3.15.2 If the Authority refuses or fails within sixty (60) days after receipt of
a written request from the Developer to issue a Certificate of Completion, the Authority
shall provide the Developer with a written statement of the reasons the Authority
refused or failed to furnish a Certificate of Completion. The statement shall also specify
the actions the Developer must take to obtain a Certificate of Completion for the
Improvements. If the reason for such refusal is confined to the immediate availability of
specific items or material for landscaping or any other non-structural matters, and the
costs of completion does not exceed Ten Thousand Dollars ($10,000), the Authority
shall issue its Certificate of Completion upon the Developer's depositing with the
Authority cash or an irrevocable standby letter of credit issued by a bank or other
financial institution acceptable to the Authority in an amount equal to the fair value of the
work not yet completed as determined by the Authority. The determination of fair value
shall be made by the Authority in the exercise of its reasonable judgment.
3.15.3 The Certificate of Completion shall not constitute evidence of
compliance with or satisfaction of any obligation of the Developer to any holder of a
mortgage, trust deed or other security instrument. Such Certificate of Completion shall
not be construed as a notice of completion as described in California Civil Code Section
3093.
ARTICLE 4
LIMITATIONS ON TRANSFERS AND SECURITY INTERESTS
4.1 Limitation As To Transfer of the Property and Assignment of Agreement.
4.1.1 Prior to issuance of a Certificate of Completion, the Developer shall
not sell, lease, assign, transfer, mortgage (other than as evidenced by the Deed of
Trust), hypothecate, or convey (collectively, a "Transfer") the Property or any part
thereof, this Agreement, or any of the Developer's rights or obligations hereunder,
without the Authority's prior written consent, which consent may be granted or withheld
in the Authority's sole and absolute discretion. The Developer acknowledges that the
identity of the Developer is of particular concern to the Authority, and it is because of the
Developer's identity that the Authority has entered into this Agreement with the
Developer. Except for any transferee approved by the Authority pursuant to this Section
4.1, and except for any lender of record holding any mortgage, deed of trust or other
security interest contemplated or permitted by this Agreement ("Holder") that has taken
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possession of the Property, no voluntary or involuntary successor in interest of the
Developer shall acquire any rights or powers under this Agreement. No transfer or
assignment of the Developer's interest hereunder without the Authority's prior written
approval shall be deemed to release the Developer from the obligations of the
Developer hereunder.
4.1.2 After the issuance of a Certificate of Completion, the Developer
shall sell or lease the Property to qualified low income households as provided in the
AHRLA.
4.2 Rights of Holders. The Authority shall deliver a copy of any notice or
demand to the Developer concerning any breach or default by the Developer under this
Agreement to each Holder who has previously made a written request to the Authority
for special notice hereunder. Any notice of breach or default by the Developer shall not
be effective against any such Holder unless given to such Holder. Such Holder shall
have the right at its option to cure or remedy any such default and to add the cost
thereof to the secured debt and the lien of its security interest. If such breach or default
can only be remedied or cured by such Holder upon obtaining possession, such Holder
may remedy or cure such breach or default within a reasonable period of time after
obtaining possession, provided such Holder seeks possession with diligence through a
receiver or foreclosure. Such Holder shall not be permitted to undertake or continue the
construction or completion of the Improvements beyond the extent necessary to
conserve or complete the Improvements.
4.3 Noninterference with Holders. The provisions of this Agreement do not
limit the right of Holders to foreclose or otherwise enforce any mortgage, deed of trust,
or other security instrument encumbering all or any portion of the Property, and the
Improvements thereon, or to pursue any remedies for the enforcement of any pledge or
lien encumbering such portions of the Property. In the event of a foreclosure sale under
any such mortgage, deed of trust or other lien or encumbrance, or sale pursuant to any
power of sale contained in any such mortgage or deed of trust, the purchaser or
purchasers and their successors and assigns, and such portions of the Property shall
be, and shall continue to be, subject to all of the conditions, restrictions and covenants
of all documents and instruments recorded pursuant to this Agreement, including,
without limitation, the restrictions set forth in the Grant Deed, Deed of Trust and the
AHRLA. The Authority agrees to execute such further documentation regarding the
rights of any Holder as is customary with respect to construction or permanent
financing, as the case may be, to the extent that such documentation is reasonably
requested by any Holder and is reasonably approved by the Authority.
ARTICLE 5
USE OF THE PROPERTY
5.1 Use of Property. Developer shall develop the Property and any portion
thereof only for the construction of the Improvements, and the sale and/or lease of the
Property and the Improvements to a Qualified Household for occupancy as their sole
and principal residence, and for no other purposes. Developer covenants and agrees
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for itself and its successors and assigns, and every successor in interest to the
Property, or any portion thereof, that during construction of the Improvements and
thereafter, Developer and such successors and assigns shall use the Property
exclusively for the purposes herein stated and shall not devote the Property to any uses
which are inconsistent with this Agreement, the AHRLA or applicable City land use
entitlements. Leasing of the Property or the Improvements is expressly prohibited
except as otherwise permitted by the AHRLA.
5.1.1 After the issuance of a Certificate of Completion, Developer shall
not make or permit to be made any substantial structural additions or modifications to
the exterior of the Improvements, or permit a use other than as set forth herein, without
the prior written consent of Authority.
5.2 Use and Operation Covenants. From the Effective Date and until the date
of the first sale of the Property to a Qualified Household, the Developer hereby
covenants and agrees to use and operate the Property in conformity with the
Redevelopment Plan, the Municipal Code, and the affordability covenants contained in
the AHRLA.
5.3 Sale of Property.
5.3.1 Developer Covenant. Developer agrees to sell and/or lease the
Property only to Qualified Households and in accordance with this Section 5.3. The
Property shall be sold to Qualified Households on or before the date set forth in the
Schedule of Performance.
5.3.2 Selection of Buyer. Developer shall identify and select the buyers,
or in the event the Developer intends to lease as provided in the AHRLA, such lessees,
for Parcel A and Parcel B (the "Buyers") from the Developer's program waiting list, and
provide technical assistance to the Buyers to package necessary financing and provide
education to the Buyers about the AHRLA. It is intended that at least one of the
proposed Buyers shall be a veteran. If Developer cannot find a Buyer from its program
waiting list, or cannot negotiate a purchase and sale contract with its preferred Buyer,
the Developer (with the prior approval of the Authority) may consider eligible Buyers
from a list maintained by the Authority.
5.3.3 Income of Buyer. Prior to the sale of the Property to a Buyer, or the
lease of the Property to a potential Buyer, the Developer shall comply with all
requirements of the Authority related to verifying the Buyer's income and obtaining
certifications that Buyer continues to be an eligible household of lower income.
5.3.4 Limitation on Sales Price. Developer shall sell the Property to a
Buyer at a price that does not exceed an Affordable Housing Cost as defined in the
AHRLA.
5.3.5 Authority Buyer Assistance. The Authority may (at is option and in
the exercise of its sole discretion) provide financial assistance to a Buyer in compliance
with the Authority's affordable housing program.
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5.4 Maintenance of the Prooertv. From and after the Close of Escrow to the
date of its sale as provided herein, Developer shall reasonably maintain the Property
and shall keep the Property free from any accumulation of debris or waste materials.
5.5 Effect and Duration of Covenants. The covenants of Developer set forth
in this Agreement, shall, without regard to technical classification or designation, be
binding on Developer and any successor in interest to the Property, or any part thereof,
for the benefit and in favor of Authority, its successors and assigns, and the City.
Except as otherwise set forth in this Agreement, the covenants contained in this
Agreement shall remain in effect from the Effective Date to the date of the first sale of
the Property to a Qualified Household. The covenants against discrimination (as
described in Section 5.7) shall remain in perpetuity.
5.6 Obligation to Refrain from Discrimination. The Developer covenants and
agrees for itself and its successors and assigns, and for every successor in interest to
the Property, or any part thereof, and their rights under this Agreement, that there shall
be no discrimination against or segregation of any person, or group of persons, on
account of sex, marital status, age, handicap, race, color, religion, creed, national origin
or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the Property, and the Developer (itself or any person claiming under or through the
Developer) shall not 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, subleases, or vendors of the Property or any portion
thereof. This provision, which is required by law, shall not be construed as permitting
the leasing of the Property.
5.7 Form of Nondiscrimination and Nonsegregation Clauses. All deeds or
contracts for sale shall contain the following nondiscrimination or nonsegregation
clauses:
5.7.1 In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons claiming
under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the California 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 California Government Code, in the sale,
transfer, use, occupancy, tenure or enjoyment of the premises herein conveyed, nor
shall the Grantee himself or herself, or any person claiming under or through him or her,
establish or permit any practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of vendees in the
premises herein conveyed. The foregoing covenants shall run with the land.
Notwithstanding the immediately preceding paragraph, with respect to
familial status, said paragraph shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the California Govemment Code. With
respect to familial status, nothing in said paragraph shall be construed to affect Sections
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51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing
for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil
Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government
Code shall apply to said paragraph."
5.7.2 In contracts: "The contracting party or parties hereby covenant by
and for himself or herself and their respective successors and assigns, that there shall
be no discrimination against 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 California
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
California Government Code, in the sale, transfer, use, occupancy, tenure or enjoyment
of the premises, nor shall the contracting party or parties, any subcontracting party or
parties, or their respective assigns or transferees, establish or permit any such practice
or practices of discrimination or segregation.
Notwithstanding the immediately preceding paragraph, with respect to
familial status, said paragraph shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the California Government Code. With
respect to familial status, nothing in said paragraph shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing
for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil
Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government
Code shall apply to said paragraph."
The foregoing provisions, which are required by law, shall not be
construed to permit the leasing of the Property or the Improvements.
ARTICLE 6
EVENTS OF DEFAULT, REMEDIES AND TERMINATION
6.1 Developer Events of Defaults. Occurrence of any or all of the following
shall constitute a default ("Default") under this Agreement:
6.1.1 The Developer's failure to commence or complete construction of
the Improvements in compliance with and as required by this Agreement;
6.1.2 Any breach of this Agreement by any party involving the payment of
money, and the continuance of such breach for a period of thirty (30) days after the non -
defaulting party has given written notice to the defaulting party;
6.1.3 A breach of any term of this Agreement by any party not involving
the payment of money and failure of such party to cure such breach within thirty (30)
days after the non -defaulting party has given written notice to the defaulting party;
provided, however, if such breach is not reasonably curable within such thirty (30) day
period, then such party shall be deemed in Default only if such party does not
commence to cure such breach within such thirty (30) day period and thereafter fails to
diligently prosecute such breach to completion;
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6.1.4 The Transfer of the Property, or any part thereof or interest therein,
or any rights or obligations of the Developer under this Agreement, in violation of the
terms hereof, or Developer's failure to sell the Property and Improvements to Qualified
Households in compliance with the AHRLA;
6.1.5 The Developer's failure or refusal to keep in force and effect any
permit or approval with respect to construction of the Improvements, and the
Developer's failure to cure such breach within thirty (30) calendar days after notice from
the Authority of the Developer's breach; provided, however, if such breach is not
reasonably curable within such thirty (30) day period, then the Developer shall be
deemed in Default only if the Developer does not commence to cure such breach within
such thirty (30) day period and thereafter fails to diligently prosecute such breach to
completion;
6.1.6 Filing of a petition in bankruptcy by or against any party or
appointment of a receiver or trustee of any property of any party, or an assignment by
any party for the benefit of creditors, or adjudication that such party is insolvent by a
court, and the failure of such party to cause such petition, appointment, or assignment
to be removed or discharged within 90 days.
6.1.7 The Developer's failure to keep and maintain the Property and the
Improvements in good condition and repair as required by this Agreement, including but
not limited to all front and back yard landscaping, connections to utilities (natural gas,
water, electric), and overall maintenance, and the Developer's failure to cure such
breach within thirty (30) days after notice from the Authority of Developer's breach; the
Authority shall have a right to enter onto the property and perform such deferred
maintenance, and the Developer shall promptly reimburse the Authority for all costs
incurred by the Authority in performing such maintenance.
6.2 Remedies in the Event of Default.
6.2.1 Remedies Prior to the Close of Escrow. In the event of a Default by
any party prior to the Close of Escrow, the non -defaulting party shall have the right to
terminate this Agreement provided it is not in breach of its obligation under this
Agreement, by delivering written notice thereof to the defaulting party and to Escrow
Holder, subject to the rights of the defaulting party to cure such Default as provided in
Section 6.1. Such party may seek against the defaulting party any available remedies
at law or equity, including but not limited to, the right to receive damages or to pursue
an action for specific performance.
6.2.2 Remedies for Default After the Close of Escrow. In the event of a
Default by any party after the Close of Escrow, the non -defaulting party may seek
against the defaulting party any available remedies at law or equity, including but not
limited to the right to receive reimbursement for its documented out-of-pocket costs
related to this transaction or to pursue and action for a specific performance, but in no
event shall such non -defaulting party be entitled to receive consequential or special
damages, as applicable.
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6.2.3 Special Remedy for Default by Developer. In addition to the
provisions of Section 6.2.2, in the event of a Default by Developer as described in
Section 6.1, the Authority in the exercise of its sole discretion, may terminate this
Agreement and re-enter and take possession of the Property, with all Improvements
thereon, and revest in the Authority title to the Property theretofore conveyed to the
Developer (or its successors in interest), and take any and all actions necessary to
commence and complete the enforcement of its reversionary interest, and in such event
the Developer agrees promptly to take all actions and to execute all documents
necessary to revert title to the Property to the Authority free and clear of all liens and
encumbrances created by or with the consent of Developer.
6.3 Liberal Construction. The rights established in this Agreement are to be
interpreted in light of the fact that the Authority will convey the Property to the Developer
for development of the Improvements thereon and their sale to eligible households of
lower income, and not for speculation in undeveloped land or for construction of
different improvements. The Developer acknowledges that it is of the essence of this
Agreement that the Developer is obligated to complete all Improvements.
6.4 No Personal Liability. No representative, agent, attorney, consultant, or
employee of the Authority shall personally be liable to the Developer or any successor
in interest of the Developer, in the event of any Default or breach by the Authority, or for
any amount which may become due to the Developer or any successor in interest, on
any obligation under the terms of this Agreement or as otherwise provided in the Deed
of Trust or AHRLA.
6.5 Rights and Remedies are Cumulative. The rights and remedies of the
parties are cumulative, and the exercise by either party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same time or different times, of any
other rights or remedies for the same default or any other default by any other party.
Upon the occurrence of an event of default, except as to rights and remedies expressly
declared to be exclusive in this Agreement, the injured party shall have all rights and
remedies against the defaulting party as may be available at law or in equity, or as
provided in the Deed of Trust or AHRLA, to cure, correct or remedy any event of default,
to obtain specific performance, to recover damages, or to obtain any other remedy
consistent with the purpose of this Agreement.
6.6 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 rights
to institute and maintain any actions or proceedings which it may deem necessary to
protect, assert or enforce any such rights or remedies. The acceptance by a party of
less than the full amount due from the other party shall not constitute a waiver of such
party's right to demand and receive the full amount due, unless such party executes a
specific accord and satisfaction.
6.7 Force Maieure. Notwithstanding anything to the contrary in this
Agreement, Developers failure to commence or complete the Improvements as required
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by this Agreement, the Scope of Development, and Schedule of Performance shall be a
breach hereof; provided, however, such nonperformance shall be excused when
performance is prevented or delayed by reason of any of the following forces
reasonably beyond the control of such party (a "Force Majeure Delay"): (i) civil
disturbance, future order claiming jurisdiction, act of the public enemy, war, riot,
sabotage, blockade, embargo, (ii) any delay or failure to perform attributable to any
strike, lockout or other labor or industrial disturbance (whether or not on the part of the
employees of either party hereto), or the unusual inability to secure customary
materials, equipment, supplies or labor through ordinary sources, but only to the extent
that any such delay referred to in this clause (ii) is an actual, industry wide condition
affecting substantially all similar works of construction in the Coachella Valley,
California, area; (iii) delay attributable to the failure of the Developer to secure plan
checks, building permits, and other governmental permits or approvals (including any
failure to obtain a temporary certificate of occupancy) within a reasonable period of
time, where such delay is not due to any fault of the Developer; or (iv) delay attributable
to severe weather, lightning, earthquake, fire, storm, hurricane, tornado, flood, washout,
explosion, or any other similar cause (other than the availability of financing) beyond the
reasonable control of the Developer, or any of its contractors or other representatives.
Any prevention, delay or stoppage due to any Force Majeure Delay shall excuse the
performance of the Developer for a period of time equal to any such prevention, delay
or stoppage (except the obligations with respect to the payment of money or to close
Escrow).
ARTICLE 7
INSURANCE; INDEMNITY.
7.1 Insurance.
7.1.1 Before commencement of any demolition or construction work by
the Developer on any portion of the Property, the Developer shall obtain and maintain at
no cost or expense to the Authority, with a reputable and financially responsible
insurance company reasonably acceptable to the Authority, commercial broad form
general public liability insurance, insuring against claims and liability for bodily injury,
death, or property damage arising from the construction, use, occupancy, condition, or
operation of the Property, which insurance shall provide combined single limit protection
of at least $1,000,000.00 per occurrence or $2,000,000.00 in aggregate. Such
insurance policy shall name the Released Parties as additional insureds.
7.1.2 Before commencement of any demolition or construction work by
the Developer on any portion of the Property, the Developer shall obtain and maintain at
no cost or expense to the Authority, with a reputable and financially responsible
insurance company reasonably acceptable to the Authority, a policy of business
automobile liability insurance written on a per occurrence basis with a single limit liability
in the amount of $1,000,000 bodily injury and property damage. Said policy shall
include coverage for owned, non -owned, leased and hired cars.
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7.1.3 Before commencement of any demolition or construction work by
the Developer on any portion of the Property, the Developer shall obtain and maintain in
force until completion of such work (i) "all risk" builder's risk insurance, including
coverage for vandalism and malicious mischief, in a form and amount and with a
company reasonably acceptable to the Authority, and (ii) workers' compensation
insurance covering all persons employed by the Developer in connection with work on
the Improvements, or any portion thereof. During the construction of Improvements on
any portion of the Property by the Developer, such builder's risk insurance shall cover
improvements in place and all material and equipment at the job site furnished under
contract, but shall exclude contractors', subcontractors', and construction managers'
tools and equipment and property owned by contractors' and subcontractors'
employees.
7.1.4 The Developer shall also furnish or cause to be furnished to the
Authority evidence satisfactory to the Authority that 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.
7.1.5 With respect to each policy of insurance required above, the
Developer shall furnish to the Authority a certificate of insurance countersigned by an
authorized agent of the insurance carrier on the insurance carrier's form setting forth the
general provisions of the insurance coverage. Unless such certificates are provided to
the Authority at an earlier date, the required certificate shall be provided to the Authority
prior to commencement of any demolition or construction work on the Property.
7.1.6 All such policies required by this Section shall be nonassessable
and shall contain language to the effect that (i) the policies cannot be canceled or
materially changed except after thirty (30) days' written notice by the insurer to the
Authority, and (ii) the Authority shall not be liable for any premiums or assessments. All
such insurance shall have deductibility limits that shall be commercially reasonable.
7.2 Indemnity. Except for the gross negligence or willful misconduct of the
Authority, the Developer shall indemnify, defend, protect, and hold harmless the
Released Parties, from and against all losses, liabilities, claims, damages (including
foreseeable or unforeseeable consequential damages), penalties, fines, forfeitures,
costs and expenses (including all reasonable out-of-pocket litigation costs and
reasonable attorney's fees) and demands of any nature whatsoever, related directly or
indirectly to, or arising out of or in connection with:
7.2.1 the development of the Improvements on the Property and the use,
ownership, management, occupancy, and possession of the Property,
7.2.2 any breach or Default by the Developer hereunder, or
7.2.3 any of the Developer's activities on the Property (or the activities of
the Developer's agents, employees, lessees, representatives, licensees, guests,
invitees, contractors, subcontractors, or independent contractors on the Property),
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regardless of whether such losses and liabilities shall accrue or are discovered before
or after termination or expiration of this Agreement.
7.2.4 The presence or clean-up of Hazardous Substances on, in or under
the Property to the extent the same was caused by Developer or Developer's affiliates,
agents or employees, and
7.2.5 Any other fact, circumstance or event related to the Developer's
performance hereunder, or which may arise from the Developer's ownership, use,
possession, operation or disposition of the Property, and the construction and sale of
the Improvements, regardless of whether such damages, losses or liabilities shall
accrue or be discovered before or after termination or expiration of this Agreement, or
before or after the conveyance of the Property.
The Developer shall defend, at its expense, including attorneys' fees, the
Released Parties in any legal action based upon such alleged acts or omissions. The
Authority and the City may in their discretion participate in the defense of any such legal
action.
The Developer's indemnity obligations contained in this Section 7.2 shall survive
the termination or expiration of this Agreement and shall not be deemed merged into the
Grant Deed on recordation.
ARTICLE 8
GENERAL PROVISIONS.
8.1 Notices. All notices and demands shall be given in writing by certified
mail, postage prepaid, and return receipt requested, or by personal delivery. Notices
shall be considered given upon the earlier of (a) personal delivery, or (b) one business
day following deposit or delivery with a nationally recognized ovemight courier delivery
charges prepaid, or (c) three (3) business days following after deposit or delivery shown
on the return receipt in the United States mail, postage prepaid, certified or registered,
return receipt requested. A copy of all notices delivered prior to the Close of Escrow
shall be sent to Escrow Holder. Notices shall be addressed as provided below for the
respective party; provided that if any party gives notice in writing of a change of name or
address, notices to such party shall thereafter be given as demanded in that notice:
The Authority: Janet Moore, Director of Housing
Palm Desert Redevelopment Authority
73-510 Fred Waring Drive
Palm Desert, Califomia 92260
Telephone: 760-346-0611
Facsimile: 760-341-6372
with a copy to:
Richards, Watson & Gershon
A Professional Corporation
355 S. Grand Avenue, 40th Floor
Los Angeles, California 90071-3101
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The Developer:
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Attention: William L. Strausz
Telephone: 213-626-8484
Facsimile: 213-626-0078
Habitat for Humanity of the Coachella Valley, Inc.
34500 Gateway Drive, Suite 100
Palm Desert, California 92211
Attention:Martv Hartley
8.2 Developer's Warranties. The Developer warrants and represents to the
City and the Authority as follows:
8.2.1 The Developer has full power and authority to execute and enter
into this Agreement and to consummate the transactions contemplated hereunder. This
Agreement constitutes the valid and binding agreement of the Developer, enforceable in
accordance with its terms subject to bankruptcy, insolvency of other creditors' rights
laws of general application. Neither the execution nor delivery of this Agreement, nor
the consummation of the transactions covered hereby, nor compliance with the terms
and provisions hereof, shall conflict with, or result in a breach of, the terms, conditions
or provisions of, or constitute a default under, any agreement or instrument to which the
Developer is a party.
8.2.2 As of the Close of Escrow, the Developer will have inspected the
Property and will be familiar with all aspects of the Property and its condition, and will
accept such condition.
8.2.3 The Developer has not paid or given, and will not pay or give, to
any third person, any money or other consideration for obtaining this Agreement, other
than normal costs of conducting business and costs of professional services such as
architects, engineers and attorneys.
8.2.4 No commission or fee whatsoever is payable to any person, firm,
corporation, partnership or other entity in connection with the transactions contemplated
by this Agreement due to the acts of the Developer. The Developer has used no
broker, agent, finder or other person in connection with the transaction contemplated
hereby to whom a brokerage or other commission or fee may be payable.
8.3 Interpretation. In this Agreement the neuter gender includes the feminine
and masculine, and singular number includes the plural, and the words "person" and
"party" include corporation, partnership, firm, trust, or association where ever the
context so requires.
8.4 Time of the Essence. Time is of the essence of this Agreement.
8.5 Attorneys' Fees. If any party brings an action to enforce the terms hereof
or declare its rights hereunder, the prevailing party in any such action shall be entitled to
its reasonable attorneys' fees to be paid by the losing party as fixed by the court. If the
Authority, or the Developer, without fault, is made a party to any litigation instituted by or
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against the other party, such other party shall defend it against and save it harmless
from all costs and expenses including reasonable attorney's fees incurred in connection
with such litigation.
8.6 Approvals by the Authority and the Developer. Unless otherwise
specifically provided herein, wherever this Agreement requires the Authority or the
Developer to approve any contract, document, plan, proposal, specification, drawing or
other matter, such approval shall not unreasonably be withheld, conditioned or delayed.
8.7 Entire Agreement, Waivers and Amendments. This Agreement, together
with all attachments and exhibits hereto, constitutes the entire understanding and
agreement of the parties. This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all negotiations or previous
agreements between the parties with respect to the subject matter hereof. No
subsequent agreement, representation or promise made by either party hereto, or by or
to any employee, officer, agent or representative of either party, shall be of any effect
unless it is in writing and executed by the party to be bound thereby. No person is
authorized to make, and by execution hereof the Developer and the Authority
acknowledge that no person has made, any representation, warranty, guaranty or
promise except as set forth herein; and no agreement, statement, representation or
promise made by any such person which is not contained herein shall be valid or
binding on the Developer or the Authority.
8.8 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
8.9 Severabilitv. Each and every provision of this Agreement is, and shall be
construed to be, a separate and independent covenant and agreement. If any term or
provision of this Agreement or the application thereof shall to any extent be held to be
invalid or unenforceable, the remainder of this Agreement, or the application of such
term or provision to circumstances other than those to which it is invalid or
unenforceable, shall not be affected hereby, and each term and provision of this
Agreement shall be valid and shall be enforced to the extent permitted by law.
8.10 Survival. The provisions hereof shall not terminate but rather shall survive
any conveyance hereunder and the delivery of all consideration.
8.11 No Third Party Beneficiaries other than the City. The City shall be a
named third party beneficiary of this Agreement. This Agreement is made and entered
into for the sole protection and benefit of, and shall be binding upon, the parties, the City
and their respective successors and assigns. No other person shall have any right of
action based upon any provision of this Agreement.
8.12 Governing Law; Jurisdiction; Service of Process. California law shall
govern this Agreement and the rights of the Parties. The Parties consent to the
exclusive jurisdiction of the Califomia Superior Court for the County of Riverside. If any
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legal action is commenced by the Developer against the Authority, or by Authority
against the Developer, service of process on the Authority shall be made by personal
service upon the executive director or secretary of the Authority or in such other manner
as may be provided by law. If any legal action is commenced by Authority against the
Developer, service of process on the Developer shall be made by personal service on
the President of the Developer, or in such other manner as may be provided by law.
The Developer agrees, for the benefit of the Authority, that it shall designate an agent
for service of process in the State of California in the manner prescribed by law, and if it
fails to do so, the Secretary of State of the State of California is designated as agent for
the Developer, with full authority to receive such service of process on its behalf, which
designation and authorization shall survive the Close of Escrow and be irrevocable.
IN WITNESS WHEREOF, the parties hereto have entered into this agreement as
of the day and year first above written.
"Developer"
HABITAT FOR HUMANITY OF THE
COACHELLA VALLEY, INC., a California non-
profit public benefit corporation
By:
Name:
Title: President
By:
Name:
Title: Secretary
"Authority" PALM DESERT HOUSING AUTHORITY, a
public body, corporate and politic
ATTEST:
Rachelle D. Klassen, Secretary
By:
Van G. Tanner, Chairman
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LIST OF EXHIBITS
Exhibit A Legal Description
Exhibit B Schedule of Performance
Exhibit C Form of Right of Entry Agreement
Exhibit D Scope of Development
Exhibit E Form of Grant Deed
Exhibit F Form of Affordable Housing Restriction and Lien Agreement
Exhibit G Form of Deed of Trust, Assignment of Rents and Security Agreement
Exhibit H Form of Promissory Note Secured by Deed of Trust
Exhibit I Form of Notice of Affordability Restrictions on Transfer of Property
Exhibit J Property Documents
Exhibit K Certificate of Completion
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EXHIBIT A
LEGAL DESCRIPTION
PARCEL A
A PORTION OF LOT 99 OF PALMA VILLAGE UNIT NO. 7 IN THE CITY OF PALM
DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, FILED IN BOOK 21 OF
MAPS, PAGES 16 THROUGH 18, INCLUSIVE, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 99;
THENCE SOUTH 03°41'00" WEST ALONG THE EASTERLY LINE OF SAID LOT 99, A
DISTANCE OF 93,43 FEET TO THE NORTHEAST CORNER OF PARCEL "A" PER
THAT CERTAIN GRANT DEED TO THE CITY OF PALM DESERT RECORDED
SEPTEMBER 11, 2008 AS INSTRUMENT NO. 2008-0499627, OFFICIAL RECORDS
OF SAID COUNTY;
THENCE SOUTH 89°47'00' WEST ALONG THE NORTHERLY LINE OF SAID
PARCEL "A" PER INSTRUMENT NO. 2008-0499627, A DISTANCE OF 116.22 FEET;
THENCE LEAVING SAID NORTHERLY LINE NORTH 38°17'00" EAST ALONG A LINE
PARALLEL WITH AND 18,88 FEET SOUTHEASTERLY FROM THE WESTERLY LINE
OF SAID LOT 99, A DISTANCE OF 133.36 FEET TO A POINT ON A CURVE
CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 100.00 FEET, A RADIAL
BEARING FROM SAID POINT BEARS NORTH 27°24'00" EAST, SAID CURVE ALSO
BEING THE NORTHERLY PROPERTY LINE OF SAID LOT 99;
THENCE EASTERLY ALONG SAID CURVE AND NORTHERLY PROPERTY LINE OF
LOT 99, THROUGH A CENTRAL ANGLE OF 23°43'00" FOR AN ARC DISTANCE OF
41.39 FEET TO THE POINT OF BEGINNING,
APN: 627-092-050
PARCEL B
LOT 98 OF PALMA VILLAGE UNIT NO. 7, IN THE CITY OF PALM DESERT, COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 21 OF
MAPS, PAGES 16 THROUGH 18, IN THE OFFICIAL RECORDS OF SAID COUNTY,
LOCATED WITHIN THE SOUTH HALF OF THE NORTHWEST QUARTER OF
SECTION 20, TOWNSHIP 5 SOUTH, RANGE 6 EAST, S.B.M.
EXCEPTING THEREFROM THE SOUTHERLY 27.00 FEET.
APN: 627-092-054
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EXHIBIT B
SCHEDULE OF PERFORMANCE
1. Authority's Publication of Notice of Public Hearing October 31, 2014 and
November 7, 2014
2. Approval of the Agreement by Authority Board November 13, 2014
3. Opening of Escrow 30 days from Authority
Board Approval.
4. Execution of the Agreement by the Developer, and 30 days from Authority
tender to the Authority Board Approval
5. To the extent required, Developer shall prepare and 30 days from Authority
submit Plans and Specifications and related Board Approval
documents
6. Before commencement of the construction of 365 days from Authority
Improvements on the Property, Developer shall, at Board Approval
its own expense, secure or cause to be secured
any and all permits that may be required
7. Developer's approval or disapproval of Title Report 15 days from the date of
receipt
8. Developer's approval or disapproval of the physical 15 days from full execution
condition of the Property of the Agreement by parties
9. Close of Escrow 60 days from opening of
Escrow
10. Commencement of the Construction of 365 days from Closing
Improvements
11. Completion of the Construction of Improvements 365 days from
Commencement Date
12. Transfer of title to Qualified Households
No later than 540 days after
the issuance of the
Certificate of Occupancy
NOTE: Schedule may be amended with written approval of the Authority's Executive
Director, which approval may be given or withheld in the sole and absolute discretion of
the Executive Director.
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EXHIBIT C
FORM OF RIGHT OF ENTRY AND ACCESS AGREEMENT
(begins on next page)
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RIGHT OF ENTRY AND ACCESS AGREEMENT
THIS RIGHT OF ENTRY AND ACCESS AGREEMENT (herein called this
"Access Agreement") is made and entered into as of November 13, 2014 (the "Effective
Date"), by PALM DESERT HOUSING AUTHORITY, a public body, corporate and politic
(herein called "Grantor"), and HABITAT FOR HUMANITY OF THE COACHELLA
VALLEY, INC., a California non-profit public benefit corporation (herein called
"Grantee").
WITNESSETH:
WHEREAS, Grantor is the owner of the real property more particularly described
on Exhibit A, attached hereto and incorporated herein by reference (herein called the
"Property");
WHEREAS, Grantor and Grantee have entered into a Disposition and
Development Agreement related to the Property (the "DDA");
WHEREAS, Grantee has requested the right of entry upon and access to the
Property for the purpose of undertaking tests, inspections and other due diligence
activities (herein called the "Due Diligence Activities") in connection with the proposed
acquisition by Grantee of the Property under the DDA;
WHEREAS, Grantor has agreed to grant to Grantee, and Grantee has agreed to
accept from Grantor, a non-exclusive, revocable license to enter upon the Property to
perform the Due Diligence Activities in accordance with the terms and provisions of this
Agreement;
WHEREAS, Grantor and Grantee desire to execute and enter into this
Agreement for the purpose of setting forth their agreement with respect to the Due
Diligence Activities and Grantee's entry upon the Property.
NOW, THEREFORE, for and in consideration of the foregoing premises, the
mutual covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor
and Grantee do hereby covenant and agree as follows:
1. Access by Grantee.
(a) Subject to Grantee's compliance with the terms and provisions of
this Agreement, until the earlier to occur of (i) the expiration of the Due Diligence Period
(as defined in the DDA), or (ii) the earlier termination of this Agreement, Grantee and
Grantee's agents, employees, contractors, representatives and other designees (herein
collectively called "Grantee's Designees") shall have the right to enter upon the
Property for the purpose of conducting the Due Diligence Activities.
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(b) Grantee expressly agrees as follows: (i) any activities by or on
behalf of Grantee, including, without limitation, the entry by Grantee or Grantee's
Designees onto the Property in connection with the Due Diligence Activities shall not
damage the Property in any manner whatsoever or disturb or interfere with the rights or
possession of any tenant or subtenant on the Property, (ii) in the event the Property is
altered or disturbed in any manner in connection with the Due Diligence Activities,
Grantee shall immediately return the Property to the condition existing prior to the Due
Diligence Activities, and (iii) Grantee, to the maximum extent allowed by law, shall
indemnify, defend and hold Grantor harmless from and against any and all claims,
liabilities, damages, losses, costs and expenses of any kind or nature whatsoever
(including, without limitation, attorneys' fees and expenses and court costs) suffered,
incurred or sustained by Grantor as a result of, by reason of, or in connection with the
Due Diligence Activities or the entry by Grantee or Grantee's Designees onto the
Property. Notwithstanding any provision of this Agreement to the contrary, Grantee
shall not have the right to undertake any invasive activities or tests upon the Property,
or any environmental testing on the Property beyond the scope of a standard "Phase I"
investigation, without the prior written consent of Grantor of a workplan for such "Phase
II" or invasive testing, which may be granted, denied or conditioned in Seller's sole and
absolute discretion. If Grantor does not respond or reject any workplan within five (5)
business days of Grantee's delivery of the written workplan proposal to Grantor
pursuant to the notice provisions of this Agreement, then Grantor shall be deemed to
have not approved the submitted workplan and Grantee may not proceed with such
testing.
2. Lien Waivers. Grantee will provide Grantor with lien waivers following
completion of the Due Diligence Activities from each and every contractor, materialman,
engineer, architect and surveyor who might have lien rights, in form and substance
reasonably satisfactory to Grantor and its counsel. To the extent permitted by
applicable law, Grantee hereby indemnifies Grantor from and against any claims or
demands for payment, or any liens or lien claims made against Grantor or the Property
as a result of the Due Diligence Activities.
3. Insurance. Prior to entry onto the Property, Grantee shall, and shall cause
all of Grantee's Designees performing the Due Diligence Activities to, procure or
maintain a policy of commercial general liability insurance issued by an insurer
reasonably satisfactory to Grantor covering each of the Due Diligence Activities with a
single limit of liability (per occurrence and aggregate) of not less than $1,000,000.00,
and to deliver to Grantor a certificate of insurance and copy of additional insured
endorsement naming Seller as named additional insured, evidencing that such
insurance is in force and effect, and evidencing that Grantor has been named as an
additional insured thereunder with respect to the Due Diligence Activities. Such
insurance shall be maintained in force throughout the term of this Agreement.
4. Successors. To the extent any rights or obligations under this Agreement
remain in effect, this Agreement shall be binding upon and enforceable against, and
shall inure to the benefit of, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
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5. Limitations. Grantor does not hereby convey to Grantee any right, title or
interest in or to the Property, but merely grants the specific rights and privileges
hereinabove set forth.
6. Notices. Whenever any notice, demand, or request is required or
permitted under this Agreement, such notice, demand, or request shall be in writing and
shall be delivered by hand, be sent by registered or certified mail, postage prepaid,
return receipt requested, or shall be sent by nationally recognized commercial courier
for next business day delivery, to the addresses set forth below the respective
executions of the parties hereof, or to such other addresses as are specified by written
notice given in accordance herewith, or shall be transmitted by facsimile to the number
for each party set forth below their respective executions hereof, or to such other
numbers as are specified by written notice given in accordance herewith. All notices,
demands, or requests delivered by hand shall be deemed given upon the date so
delivered; those given by mailing as hereinabove provided shall be deemed given on
the date of deposit in the United States Mail; those given by commercial courier as
hereinabove provided shall be deemed given on the date of deposit with the commercial
courier; and those given by facsimile shall be deemed given on the date of facsimile
transmittal. Nonetheless, the time period, if any, in which a response to any notice,
demand, or request must be given shall commence to run from the date of receipt of the
notice, demand, or request by the addressee thereof. Any notice, demand, or request
not received because of changed address or facsimile number of which no notice was
given as hereinabove provided or because of refusal to accept delivery shall be deemed
received by the party to whom addressed on the date of hand delivery, on the date of
facsimile transmittal, on the first calendar day after deposit with commercial courier, or
on the third calendar day following deposit in the United States Mail, as the case may
be.
7. Assignment. This Agreement may not be assigned by Grantee.
8. Governing Law. This Agreement shall be construed, enforced and
interpreted in accordance with the laws of the State of California.
9. Termination. This Agreement can be terminated by Grantor at any time
and for any reason, or no reason, upon written notice from Grantor to Grantee.
10. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all of such counterparts together shall
constitute one and the same instrument.
11. No Recording of Agreement or Memorandum of Agreement. In no event
shall this Agreement or any memorandum hereof be recorded in the Official Records of
Riverside County, California, and any such recordation or attempted recordation shall
constitute a breach of this Agreement by the party responsible for such recordation or
attempted recordation.
Address for notices:
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To the Authority: Janet Moore, Director of Housing
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Telephone: 760-346-0611 Facsimile: 760-341-6372
With a copy to:
Richards, Watson & Gershon
355 S. Grand Avenue, 40th Floor
Los Angeles, California 90071-3101
Attention: William L. Strausz
Telephone: 213-626-8484 Facsimile: 213-626-0078
Address for notices: Habitat for Humanity of the Coachella Valley, Inc.
34500 Gateway Drive, Suite 100
Palm Desert, Califomia 92211
Attention: Marty Hartley, Executive Director
IN WITNESS WHEREOF, Grantor and Grantee have caused this Agreement to
be executed and sealed, on the day and year first written above.
GRANTOR: PALM DESERT HOUSING AUTHORITY, a
public body, corporate and politic
By:
Van G. Tanner, Chairman
ATTEST:
Rachelle D. Klassen, Secretary
GRANTEE: HABITAT FOR HUMANITY OF THE COACHELLA VALLEY, INC.,
a California non-profit public benefit corporation
By:
Name:
Title:
By:
Name:
Title:
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL A
A PORTION OF LOT 99 OF PALMA VILLAGE UNIT NO. 7 IN THE CITY OF PALM
DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, FILED IN BOOK 21 OF
MAPS, PAGES 16 THROUGH 18, INCLUSIVE, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 99;
THENCE SOUTH 03°41'00" WEST ALONG THE EASTERLY LINE OF SAID LOT 99, A
DISTANCE OF 93,43 FEET TO THE NORTHEAST CORNER OF PARCEL "A" PER
THAT CERTAIN GRANT DEED TO THE CITY OF PALM DESERT RECORDED
SEPTEMBER 11, 2008 AS INSTRUMENT NO. 2008-0499627, OFFICIAL RECORDS
OF SAID COUNTY;
THENCE SOUTH 89°47'00' WEST ALONG THE NORTHERLY LINE OF SAID
PARCEL "A" PER INSTRUMENT NO. 2008-0499627, A DISTANCE OF 116.22 FEET;
THENCE LEAVING SAID NORTHERLY LINE NORTH 38°17'00" EAST ALONG A LINE
PARALLEL WITH AND 18,88 FEET SOUTHEASTERLY FROM THE WESTERLY LINE
OF SAID LOT 99, A DISTANCE OF 133.36 FEET TO A POINT ON A CURVE
CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 100.00 FEET, A RADIAL
BEARING FROM SAID POINT BEARS NORTH 27°24'00" EAST, SAID CURVE ALSO
BEING THE NORTHERLY PROPERTY LINE OF SAID LOT 99;
THENCE EASTERLY ALONG SAID CURVE AND NORTHERLY PROPERTY LINE OF
LOT 99, THROUGH A CENTRAL ANGLE OF 23°43'00" FOR AN ARC DISTANCE OF
41.39 FEET TO THE POINT OF BEGINNING,
APN: 627-092-050
PARCEL B
LOT 98 OF PALMA VILLAGE UNIT NO. 7, IN THE CITY OF PALM DESERT, COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 21 OF
MAPS, PAGES 16 THROUGH 18, IN THE OFFICIAL RECORDS OF SAID COUNTY,
LOCATED WITHIN THE SOUTH HALF OF THE NORTHWEST QUARTER OF
SECTION 20, TOWNSHIP 5 SOUTH, RANGE 6 EAST, S.B.M.
EXCEPTING THEREFROM THE SOUTHERLY 27.00 FEET.
APN: 627-092-054
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EXHIBIT D
SCOPE OF DEVELOPMENT
A. Development of two energy -efficient single family residences, at least one of which will
be specially -designed for an American veteran, containing not less than 1,200 square
feet with three or four bedrooms, two baths, and two -car attached garage. The other of
which shall be designed to be adaptable to accommodate a purchaser with specific
needs.
The residences shall be designed and oriented to maximize solar energy efficiency and
adhere to a Basic LEED equivalent standard. The City of Palm Desert shall review
complete design plans and all specifications prior to permitting, and build -out should
change orders occur. The homes shall portray energy conserving, aesthetically
pleasing, low -maintenance architectural and landscape designs to most appropriately
complement the existing area. Interior finish materials shall contain sustainable features
and/or recycled content to the maximum extent possible. Where economically feasible,
materials should be obtained from local businesses within the Coachella Valley.
B. Developer shall endeavor to install in ADDITION to the minimum energy efficiency
standards set forth in the 2013 Edition of the California Energy Code Title 24 and the
current California Green Building Code as many of the following environmental
features/processes that meet or exceed those described below in order to construct two
custom designed residences:
1) Architectural Design
a. Architectural design for energy conservation shall incorporate
structural overhangs or architectural projections a minimum of 18" in
depth for shading of all eastern, southern and western facing glazing.
b. Construction of 2x6 walls with a minimum of R-19 insulation
provided at exterior walls
c. All glazing shall consist of the following:
1. Thermal break design window and/or door frames
2. U factor of .35 or less (NFRC certified label)
3. SHGC value of 0.30 or less (NFRC certified label)
4. Provide natural lighting in 90% or all interior spaces through
typical glazing, skylights, or solar -tubes.
d. All roof surfaces, except integrated solar roofing systems, shall
have a Cool Roof rating as follows:
1. Solar reflectance greater than or equal to .70
2. Thermal emittance greater than or equal to .75
e. When choosing flooring products, consider environmentally
friendly flooring made from renewable sources, including natural linoleum,
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wool carpeting, renewable woods such as bamboo, cork, eucalyptus, etc.
taking into account flooring with is affordable to maintain.
2) HVAC Equipment
Minimum standards for the HVAC system shall be:
a. Furnace efficiency to be a minimum AFUE rating of 92%
b. SEER: 16 minimum
c. EER: 13 minimum
d. Duct insulation shall be R-8 or better; or provide a sealed (no attic
ventilation) attic area insulated with R-38 insulation at all exterior facing surfaces
e. All ducts shall be pressure tested for leakage conforming to current
standards in the 2013 edition of the California Energy Code Title 24
3) Energy Star Appliances
Provide the following Energy Star rated appliances (In the event this appliance is
provided by developer):
a. Dishwashers (not using more than 5.8 gallons of water per cycle)
b. Refrigerators
c. Clothes Washers
d. Ceiling fans
e. Exhaust fans
4) Water Heater
Water Heater installation may include one or both of the following:
a. Energy Star qualified natural gas tankless water heater(s) as necessary with a
minimum energy factor of .82. Determine hot water needs necessary for the size of
house and family to ensure hot water needs are continuously met.
b. Solar water heating system
More than one system may be required to accommodate the normal usage for the
typical family size for a 1,200 square foot home.
5) Lighting
All interior and exterior lighting fixtures must be certified by the California Energy
Commission (see website: www.eneray.ca.aov/appliances) Where possible,
exterior lighting shall utilize solar fixtures.
6) Construction and Demolition Recycling Guidelines
a. Contractor and Developer shall comply with City of Palm Desert
Guidelines and Plan for recycling of 50% of the non -hazardous
construction and demolition debris (See attachment A — "Guide to
Recycling Construction and Demolition Debris")
7) Site
a. Any new or reconfigured perimeter walls shall be compatible with
adjacent block walls.
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b. Limit turf areas to not more than 25% of the total landscaped area
with the remaining 75% native California or drought tolerant plant and tree
species meeting all local codes through the City of Palm Desert and
CVWD. Drought tolerant design must incorporate mounding and cobbles
and/or boulders integrated with low -maintenance planting to provide
visual interest. Turf shall be located a minimum distance of 24" away
from any hard surfaces or walls.
c.lrrigaton shall include a "Smart Controller" and utilize drip irrigation,
bubblers, or drip emitters (for desert landscape design)
8) Low Flow Fixtures
All fixtures, including showerheads, faucets, and water closets, shall be low -flow
utilizing the standards in the 2013 California Green Building Code.
9) Solar
Conduit must be installed for the home for future solar use. If an
appropriately sized a solar system is to be installed, taking into account
all of the equipment and building design upgrades to maintain a net -zero
balance of electrical use for a family of 4, then no additional conduit is
necessary.
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EXHIBIT E
FORM OF GRANT DEED
(begins on next page)
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Recording Requested By,and
When Recorded return to and Mail To:
Palm Desert Housing Authority
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn: Housing Division
APN: 627-092-050 and 627-092-054
(Space above for Recorder's use.)
(Exempt from Recording Fees Per Govt Code §6103.)
GRANT DEED
The undersigned grantor(s) declare(s):
Documentary transfer tax is: County $
[ ] computed on full value of property conveyed, or
[ ] computed on full value less value of liens or encumbrances remaining at time of
sale,
[ ] unincorporated area; [ ] City of Palm Desert, and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the PALM DESERT HOUSING AUTHORITY, a public body, corporate and politic,
("Grantor") hereby GRANTS, RELEASES AND REMISES to HABITAT FOR
HUMANITY OF THE COACHELLA VALLEY, INC., a California non-profit, public benefit
corporation ("Grantee") the real property described in Exhibit A attached hereto and
incorporated herein by this reference (the "Property") located in the City of Palm Desert,
County of Riverside, State of California:
1. This Grant Deed of the Property is subject to the provisions of a
Disposition and Development Agreement (the "Agreement") entered into by and
between Grantor and Grantee dated November 13, 2014, the terms of which are
incorporated herein by reference. A copy of the Agreement is available for public
inspection at the offices of the Grantor, 73-510 Fred Waring Drive, Palm Desert,
California 92260. The Property is conveyed further subject to all easements, rights of
way, covenants, conditions, restrictions, reservations and all other matters of record.
2. The Property is conveyed subject to the condition that the Grantee
covenants by and for itself, its successors and assigns and every successor in interest
to the Property or any part thereof, that the Grantee and such successors and assigns
shall use the Property, and every part thereof, only for the construction of certain
improvements thereon as described in the Agreement. The Grantee further covenants
and agrees for itself, and its successors and its assigns, that the Property and the
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improvements constructed thereon shall be conveyed only to "Qualified Households" as
defined in that certain Affordable Housing Restriction and Lien Agreement entered into
by and between Grantor and Grantee dated November 13, 2014, the terms of which are
incorporated herein by this reference.
3. By acceptance hereof, Grantee covenants, for himself or herself, his or
her 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 any basis listed in subdivision (a) or (d) of Section 12955 of the California
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
California Government Code, in the sale, transfer, use, occupancy, tenure or enjoyment
of the premises herein conveyed, nor shall the Grantee himself or herself, or any person
claiming under or through him or her, establish or permit any practice or practices of
discrimination or segregation with reference to the use or occupancy of the premises
herein conveyed. The foregoing shall be a covenant running with the land for the
benefit of, and as a burden upon the property described herein.
Notwithstanding the immediately preceding paragraph, with respect to familial
status, said paragraph shall not be construed to apply to housing for older persons, as
defined in Section 12955.9 of the California Government Code. With respect to familial
status, nothing in said paragraph shall be construed to affect Sections 51.2, 51.3, 51.4,
51.10, 51.11, and 799.5 of the California Civil Code, relating to housing for senior
citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil Code
and subdivisions (n), (o) and (p) of Section 12955 of the Califomia Government Code
shall apply to said paragraph.
4. As provided in Section 6.2.3 of the Agreement, in the event of a default
the Grantor shall have the right at its option to re-enter and take possession of the
Property hereby conveyed, with all improvements thereon, and to revest in Grantor the
Property hereby conveyed to Grantee (or its successors in interest), and in such event
title to the Property shall revert to Grantor without the necessity of any action on the
party of Grantee.
5. All covenants contained in this Grant Deed, or incorporated herein by
reference, shall run with the land and shall be binding for the benefit of, and shall be
enforceable by, Grantor, or the City of Palm Desert (as a third party beneficiary) and
their respective successors and assigns, without regard to whether the Grantor is or
remains an owner of any land or interest therein to which such covenants relate. In the
event of a breach of any covenant contained in this Grant Deed, Grantor shall have the
right to exercise any right or remedy available at law or in equity.
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IN WITNESS WHEREOF, the undersigned has executed this Grant Deed as of
the date set forth below.
PALM DESERT HOUSING AUTHORITY, a
public body, corporate and politic
Dated:
By:
ATTEST:
Rachelle Klassen, Secretary
State of California )
) SS.
County of Riverside )
Van G. Tanner, Chairman
On , 2014 before me, , a 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. (Seal)
Signature
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL A
A PORTION OF LOT 99 OF PALMA VILLAGE UNIT NO. 7 IN THE CITY OF PALM
DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, FILED IN BOOK 21 OF
MAPS, PAGES 16 THROUGH 18, INCLUSIVE, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 99;
THENCE SOUTH 03°41'00" WEST ALONG THE EASTERLY LINE OF SAID LOT 99, A
DISTANCE OF 93,43 FEET TO THE NORTHEAST CORNER OF PARCEL "A" PER
THAT CERTAIN GRANT DEED TO THE CITY OF PALM DESERT RECORDED
SEPTEMBER 11, 2008 AS INSTRUMENT NO. 2008-0499627, OFFICIAL RECORDS
OF SAID COUNTY;
THENCE SOUTH 89°47'00' WEST ALONG THE NORTHERLY LINE OF SAID
PARCEL "A" PER INSTRUMENT NO. 2008-0499627, A DISTANCE OF 116.22 FEET;
THENCE LEAVING SAID NORTHERLY LINE NORTH 38°17'00" EAST ALONG A LINE
PARALLEL WITH AND 18,88 FEET SOUTHEASTERLY FROM THE WESTERLY LINE
OF SAID LOT 99, A DISTANCE OF 133.36 FEET TO A POINT ON A CURVE
CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 100.00 FEET, A RADIAL
BEARING FROM SAID POINT BEARS NORTH 27°24'00" EAST, SAID CURVE ALSO
BEING THE NORTHERLY PROPERTY LINE OF SAID LOT 99;
THENCE EASTERLY ALONG SAID CURVE AND NORTHERLY PROPERTY LINE OF
LOT 99, THROUGH A CENTRAL ANGLE OF 23°43'00" FOR AN ARC DISTANCE OF
41.39 FEET TO THE POINT OF BEGINNING,
APN: 627-092-050
PARCEL B
LOT 98 OF PALMA VILLAGE UNIT NO. 7, IN THE CITY OF PALM DESERT, COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 21 OF
MAPS, PAGES 16 THROUGH 18, IN THE OFFICIAL RECORDS OF SAID COUNTY,
LOCATED WITHIN THE SOUTH HALF OF THE NORTHWEST QUARTER OF
SECTION 20, TOWNSHIP 5 SOUTH, RANGE 6 EAST, S.B.M.
EXCEPTING THEREFROM THE SOUTHERLY 27.00 FEET.
APN: 627-092-054
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EXHIBIT F
FORM OF AFFORDABLE HOUSING RESTRICTION AND LIEN AGREEMENT
(begins on next page)
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Palm Desert Housing Authority
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: Housing Division
EXEMPT FROM RECORDING FEES PURSUANT TO G.C. 6103
AFFORDABLE HOUSING RESTRICTION AND LIEN AGREEMENT
THIS AFFORDABLE HOUSING RESTRICTION AND LIEN AGREEMENT (the
"Restrictive Agreement") including DECLARATIONS OF CONDITIONS, COVENANTS
AND RESTRICTIONS dated as of the 13th day of November, 2014 (the "Effective
Date"), is by and between the PALM DESERT HOUSING AUTHORITY, a public body,
corporate and politic (the "Authority"), and HABITAT FOR HUMANITY OF COACHELLA
VALLEY, INC., a Califomia nonprofit corporation (the "Owner").
RECITALS
A. The Owner is concurrently herewith acquiring that certain real property
located in the City of Palm Desert, County of Riverside, State of California, legally
described in Exhibit "A" attached hereto and incorporated herein by reference (the
"Site"), and which the owner intends to sell to an income Qualified Buyer who shall
occupy the property as their principal residence.
B. The purpose of this Agreement is to effectuate the disposition of the Site
to Owner, and for the development of the Site, and its sale to a Qualified Household (as
defined below).
C. The Authority and the Owner are parties to that certain Disposition and
Development Agreement dated November 13, 2014 (the "DDA"). Pursuant to the DDA,
the Owner has agreed to construct a single-family residential dwelling unit on the Site
(the "Unit"), and the Authority has agreed to convey the Site to the Owner. The Site and
Unit are herein collectively referred to as the "Property".
D. Pursuant to the DDA, the Owner at the time construction of the Unit is
completed, is required to sell the Property to a Qualified Household who as "Owner"
shall be subject to the terms and provisions of a new Affordable Housing Restriction and
Lien Agreement as herein provided.
E. Concurrently herewith, the Owner is executing a promissory note secured
by deed of trust (the "Note"), which Note is made and delivered to Authority in
consideration of the Authority's transfer of title to the Site to Owner, for Parcel A in the
amount of Thirty Four Thousand Two Hundred Dollars ($34,200) and (the "Loan") to
be secured by a Deed of Trust, Assignments of Rents and Security Agreement of even
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date herewith (the "Deed of Trust") to be recorded against the Property in the official
records of the County Recorder of Riverside County (the "County Recorder").
F. To further the interests of the Authority, and as required by the DDA,
Owner has agreed to enter into and record this Restrictive Agreement, the purpose of
which is to regulate and provide certain restrictions with regard to occupancy, resale,
and ownership of the Property.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Fundamental Provisions. The following shall serve as the basic terms of
this Restrictive Agreement:
(a) The name of the Owner is Habitat for Humanity of Coachella
Valley, Inc.
(b) The Property is a vacant parcel located on San Benito Circle in the
City of Palm Desert, California, also known as APN 627-092-050 and legally described
as attached in Exhibit "A".
(c) References herein to statutes or regulations shall be to such
statutes or regulations as amended from time to time, and to any successor statutes
and regulations.
2. Residential Dwelling. The Owner is to construct the Unit on the Site as
more particularly described in the DDA.
3. Term of Restrictive Agreement. This Restrictive Agreement shall
commence upon the date of recordation hereof in the official records of the County
Recorder and shall continue until the date upon which the Property is first sold to a
Qualified Household (the "Term"). Upon expiration of the Term, Owner and Authority
shall promptly execute and record an instrument (acceptable in form to the Authority)
and evidencing the termination of this Restrictive Covenant. The Authority has
determined that the Term is the longest period feasible for continuing the Term of this
Restrictive Agreement. The first Qualified Household to purchase the Property shall at
the time of the closing of such purchase enter into a new Affordable Housing Restriction
and Lien Agreement in the form of Exhibit F-1 (with such changes thereto as the
Authority's Executive Director may approve in the exercise of his sole and absolute
discretion) attached to the DDA (the `Purchaser's Restrictive Agreement") with a term of
forty-five (45) years from the date of such purchase. The repayment of the Loan shall
not terminate this Restrictive Agreement.
4. Definitions. For purposes of this Restrictive Agreement, the terms listed
below shall have the meanings thereinafter specified.
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(a) Authority's Executive Director means the Executive Director of the
Authority or a designee as he or she may so designate from time to time.
(b) AMI means the median family income of the Riverside -San
Bernardino Statistical Area (SMSA), as determined and published annually by the
United States Department of Housing and Urban Development ("HUD"), pursuant to
California Health and Safety Code Section 50093, and the regulations promulgated
thereunder. The AMI shall be adjusted for family size in accordance with state
regulations adopted pursuant to California Health and Safety Code Section 50052.5.
(c) Affordable Housing Cost means a housing cost which is calculated
pursuant to California Health and Safety Code Section 50052.5, as amended from time
to time, and for the purposes hereof, the term "housing cost" shall have the meaning
ascribed to such term in Title 25 California Code of Regulations Section 6920, as
amended from time to time, and the term "gross income" shall have the meaning
ascribed to such term in Title 25 of the Califomia Code of Regulations Section 6914.
(d) Person, Family, or Household of Very Low or Low Income means a
person, family or household of one or more persons occupying the same housing unit
whose household income does not exceed the limits set forth in California Health and
Safety Code Sections 50052.5, 50053, 50079.5, 50093, and 50105, and Title 25 of the
California Code of Regulations Section 6910, et seq., as the case or context may
require, adjusted for family size.
(e) Qualified Household means a Person, Family, or Household of
Very Low or Low Income that is a First -Time Homebuyer and that would not cause the
occupancy of the Unit to exceed the maximum occupancy allowed by the Palm Desert
Municipal Code.
(f) Escrow and Title Costs are to include only those fees charged by
an escrow agent & title insurance company solely for the closing costs of escrow.
These are not to include loan fees, refinancing fees, broker commissions, prepaid items,
homeowner's dues, or other fees not directly related to the transfer of ownership.
(g) First -Time Homebuver means an individual or individuals or an
individual and his or her spouse who have not owned a home during the three-year
period before the purchase of a home with subsidy assistance, except that the following
individual or individuals may not be excluded from consideration as a First -Time
Homebuyer under this definition:
(i) a displaced homemaker who, while a homemaker, owned a
home with his or her spouse or resided in a home owned by the spouse. A displaced
homemaker is an adult who has not, within the preceding two (2) years, worked on a
full-time basis as a member of the labor force for a consecutive twelve-month period
and who has been unemployed or underemployed, experienced difficulty in obtaining or
upgrading employment and worked primarily without remuneration to care for his or her
home and family;
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(ii) a single parent who, while married, owned a home with his
or her spouse or resided in a home owned by the spouse. A single parent is an
individual who is unmarried or legally separated from a spouse and has one or more
minor children for whom the individual has custody or joint custody or is pregnant; and
(h) Owner means both the party identified as "Owner" in first paragraph
of this Restrictive Agreement, and any successor in interest of such Owner with respect
to the Property.
5. Restriction on Transfer.
(a) The Owner shall not voluntarily or involuntarily, in whole or in part,
sell, convey, transfer, lease, sublease, assign, encumber, mortgage, refinance, or
hypothecate the Property, or enter into agreements to sell, convey, transfer, lease,
sublease, assign, encumber, mortgage, refinance, or hypothecate the Property, except
in compliance with the terms of this Restrictive Agreement and the DDA, and with the
prior written approval of the Authority's Executive Director. Failure to obtain the prior
written approval of the Authority's Executive Director will be deemed a breach of this
Restrictive Agreement and, at the option of the Authority, shall result in an acceleration
of the Note requiring the Owner to immediately repay the Note in full. Notwithstanding
the foregoing, Owner may lease, in anticipation of selling, the Unit to a Qualified
Household for a period not to exceed ( ) days; provided that Owner
shall give Authority sixty (60) days advance written notice of its intention to lease the
Unit, and such lease shall be made pursuant to a lease agreement and at a rental rate
acceptable to the Authority in the exercise of its sole and absolute discretion.
(b) Any violation or breach of the provisions hereof is prohibited and
any sale or other transfer of the Property prohibited in Section 5(a) above, in whole or in
part, during the Term shall be null, void and unenforceable and shall additionally, at the
option of the Authority, result in an acceleration of the Note requiring the Owner to
immediately repay the Note in full.
6. Covenant to Maintain Affordability.
(a) The Site is being conveyed to the Owner to increase and improve
the community's supply of low- and moderate -income housing available at an Affordable
Housing Cost in accordance with the affordable housing requirements of the Community
Redevelopment Law (California Health and Safety Code, Section 33000, et seq). The
Owner shall sell, convey, assign, or transfer ownership or occupancy of the Property
only to Qualified Households who cannot obtain comparable housing at affordable costs
on the open market as provided in Health and Safety Code Section 33334.2(e)(8). To
this end, the Owner agrees that during the Term the Property shall be sold only at an
Affordable Housing Cost and shall only be occupied by a Qualifying Household as its
sole and primary residence.
(b) As a condition to selling the Property, Owner shall require the buyer
of the Property to execute, acknowledge and deliver to the Authority's Executive
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Director an assumption of the Note and the Purchaser's Restrictive Agreement, in form
and substance acceptable to the Authority's Executive Director.
7. Permitted Transfers and Mortaaaes.
(a) Conveyance of Property. Any permitted transferee shall acquire
the Property subject to the terms and conditions of the Purchaser's Restrictive
Agreement.
(b) First Trust Deed - Purchase. The Owner may encumber the
Property with a deed of trust or mortgage securing a purchase money loan for the
benefit of a Qualified Household on the condition that the first position trust deed
complies with the terms of the Purchaser's Restrictive Agreement. No other
encumbrance of the Property is permitted without the prior written consent of the
Authority's Executive Director, which consent may be granted or withheld in the
Executive Director's sole and absolute discretion.
8. Controls and Procedures Reaardina Sale of the Property.
(a) When the Owner elects to sell the Property, the Owner shall, prior
to signing a listing agreement or other authorization to sell with a real estate broker, first
provide to the Authority's Executive Director a notice (the "Notice of Proposed Sale")
setting forth the Owner's intention to sell the Property, and a property information form
to be prepared by the Authority.
(b) The escrow instructions pertaining to the sale shall provide for
conditions or contingencies of the type and nature customarily included in residential
purchase escrows (including but not limited to financing contingencies, inspection rights,
and preliminary title report approvals), provided that any such conditions or
contingencies (other than the status of title to the Property at the time of conveyance
and other conditions which by their nature cannot be satisfied prior to closing) must be
satisfied or waived on or before the close of escrow. Escrow shall close within a
reasonable time after opening thereof, but not earlier than sixty (60) days following the
date upon which the notice of sale is received by the Authority' Executive Director.
(c) The Owner shall notify any proposed purchaser in writing prior to
such person's execution of escrow instructions, or purchase and sale agreement or
similar agreement, whichever is earliest, that the title to the Property will be restricted in
the manner described in the Purchaser's Restrictive Agreement (the form of which shall
be delivered by Owner to the prospective purchaser at least thirty (30) days prior to the
proposed date of sale of the Property).
(d) The Owner may require a deposit to open escrow in an amount not
to exceed three percent (3%) of the purchase price. Title to the Property shall be
delivered to the purchaser at the close of escrow free and clear of monetary liens and
encumbrances, except as provided for in this Restrictive Agreement. Closing costs
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shall be allocated between the buyer and seller according to the customary practices in
Riverside County in effect at the time the escrow is opened.
(e) For the purpose of confirming with the Authority that a proposed
purchaser is a Qualified Household that will be paying a purchase price that is in
compliance with the terms hereof, the Owner (at least forty-five (45) days prior to the
close of escrow for the Property) shall notify the Authority's Executive Director in writing
of any offer from a prospective purchaser which the Owner intends to accept, disclosing
the identity of such prospective purchaser and providing the Authority with such
financial, credit, and other information on such prospective purchaser as required by the
Authority, including the following:
(i) Name and address of the purchaser.
(ii) Number of persons comprising the purchaser's household
and their names and ages.
(iii) Proposed purchase price of the Property, and any other
consideration for the purchase of the Property.
(iv) Verification purchaser is a First Time Home Buyer.
(v) Amount of down payment.
(vi) Terms of any loan that will be used by the purchaser to
finance the purchase of the Unit, including, but not limited to, principal, interest rate,
term, and loan fees.
(vii) Closing date.
(viii) Aggregate annual income of the purchaser's household.
(ix) Most recent federal and state income tax returns of the
purchaser and all other members of the purchaser's household for the preceding two (2)
calendar years, and verification of the proposed purchaser's salary or wages from the
purchaser's employer or from current pay stubs showing year to date as well as period
payroll for the preceding two (2) calendar years.
(x) Copy of any proposed purchase and sale agreement,
escrow instructions, loan application, or other agreements between the Owner and the
purchaser of the Property or relating to the sale of the Unit including closing documents
or any other documentation that the Authority deems appropriate.
(xi) A written statement signed by the proposed purchaser that
the Unit will be occupied by the purchaser of such Unit and used as his or her primary
residence.
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In lieu of providing the foregoing information, these requirements shall be
deemed to have been satisfied by delivery to the Authority's Executive Director of a
written certification of the foregoing information from the purchaser's lender who shall
hold a first position trust deed encumbering the Property, which certification shall be
furnished to the Authority's Executive Director at least forty-five (45) days prior to the
close of escrow for the Property.
The Authority's Executive Director shall have 30 days to review the
information (unless the Authority received the certification from prospective purchaser's
lender, in which case the Authority shall have 15 days to review the information). If the
Authority's Executive Director fails to disapprove the purchaser within such period of
time, then the purchaser shall be deemed approved by the Authority. The Authority's
Executive Director may require the purchaser to submit other written documentation
reasonably requested by the Authority's Executive Director to verify the information set
forth therein and to determine that the requirements of the Restrictive Agreement are
being satisfied. If the Authority's Executive Director receives all such prospective
purchaser information requested by the Authority's Executive Director, the Authority's
Executive Director shall determine whether the prospective purchaser is a Qualified
Household, and shall thereafter immediately notify the Owner in writing that the
prospective sale is authorized and approved, or that the prospective purchaser does not
qualify to purchase the Unit as a Qualified Household.
If the Authority's Executive Director notifies the Owner that the sale is authorized
and approved, the Owner shall proceed to complete the sale of the Property as soon as
practicable.
9. Nondiscrimination Covenants. By the Owner's acceptance hereof, the
Owner agrees, for itself and its successors and assigns, to refrain from restricting the
transfer of the Unit on the basis of race, color, creed, religion, ancestry, sex, marital
status, national origin or age of any person. All such deeds and leases entered into with
respect to the Property shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons claiming
under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the California 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 California Government Code, in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises herein
conveyed, nor shall the Grantee himself or herself, or any person claiming under or
through him or her, establish or permit any 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 premises herein conveyed.
The foregoing covenants shall run with the land.
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Notwithstanding the immediately preceding paragraph, with respect to
familial status, said paragraph shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the California Government Code. With
respect to familial status, nothing in said paragraph shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Califomia Civil Code, relating to housing
for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil
Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government
Code shall apply to said paragraph."
(b) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons claiming
under or through him or her, and this lease is made and accepted upon and subject to
the following conditions: That there shall be no discrimination against 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 California 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 California Government Code, in the leasing,
subleasing, transferring, use or occupancy, tenure or enjoyment of the premises herein
leased nor shall the lessee himself or herself, or any person claiming under or through
him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of
tenants, lessees, sublessees, subtenants or vendees in the premises herein leased.
Notwithstanding the immediately preceding paragraph, with respect to
familial status, said paragraph shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the California Government Code. With
respect to familial status, nothing in said paragraph shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing
for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil
Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government
Code shall apply to said paragraph."
(c) In contracts: "The contracting party or parties hereby covenant by
and for himself or herself and their respective successors and assigns, that there shall
be no discrimination against 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 California
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
California Government Code, in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the premises, nor shall the contracting party or parties, any
subcontracting party or parties, or their respective assigns or transferees, establish or
permit any such practice or practices of discrimination or segregation.
Notwithstanding the immediately preceding paragraph, with respect to
familial status, said paragraph shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the California Government Code. With
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respect to familial status, nothing in said paragraph shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing
for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil
Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government
Code shall apply to said paragraph."
The foregoing shall be a covenant running with the land for the benefit of, and as
a burden upon the Property, and shall remain in effect in perpetuity.
10. Maintenance of the Unit/Prohibition Against Waste. The Owner shall not
commit waste upon the Property. The Owner shall not remove or demolish the
improvements on the Property. The Owner shall, throughout the Term hereof, keep and
maintain the Property and the improvements thereon in good condition and repair. If the
Owner at any time fails to so keep and maintain the Property in good condition and
repair, after 30 days notice from the Authority's Executive Director, the Authority shall
have a right to enter onto the Property and perform such deferred maintenance, and the
Owner shall promptly reimburse the Authority for all costs incurred by the Authority in
performing such maintenance.
11. Default. If either party defaults with regard to any of the provisions of this
Restrictive Agreement, the nondefaulting party shall serve written notice of such default
upon the defaulting party. If the default is not cured by the defaulting party within thirty
(30) days after service of the notice of default, or if the default is not commenced to be
cured within thirty (30) days after service of the notice of default and is not cured
promptly within a reasonable period of time after commencement, the defaulting party
shall be liable to the other party for damages caused by such default.
12. Notices. All notices to be delivered to the parties pursuant to the terms
hereof shall be in writing and shall be delivered in person or by U.S. Mail or other
delivery service to the addresses listed below.
Any of the following addresses may be changed by written notice. If notice is
given it shall be deemed effective upon 3 business days after deposit of same, postage
prepaid, in the U.S. Mail, or the date of actual receipt as evidenced by personal
acknowledgment, return receipt or other comparable means.
If to Owner:
Habitat for Humanity
34500 Gateway Drive, Suite 100
Palm Desert, CA 92211
If to the Authority: Palm Desert Housing Authority
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn: Executive Director
13. Covenants to Run With the Land. Subject to Section 7 hereof, the
covenants established in this Restrictive Agreement shall be binding on the Owner and
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any successor in interest of the Owner, and shall be for the benefit and in favor of the
Authority, its successors and assigns, the City of Palm Desert, and Alphonso Sanchez
the real party in interest under that certain Stipulation for Entry of Judgment, Riverside
County Superior Court Case No. INDIO 51124; subject to Section 6 hereof, the
covenants shall run with the land in favor of the Authority and shall be a burden upon
the Property and shall be for the benefit of the parcels that comprise the Project Area
owned by the City of Palm Desert, as described in Instrument No. 23610, recorded on
December 22, 1981 in the Official Records of Riverside County. The Authority is
deemed the beneficiary of the terms and provisions of this Restrictive Agreement and of
the covenants running with the land, for and in its own rights 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 Restrictive Agreement and the covenants running with
the land have been provided. The covenants hereof shall be enforceable by any of the
persons or entities set forth in Health and Safety Code Section 33334.3(f). The
covenants established in this Restrictive Agreement shall be incorporated by reference
in all deeds conveying all or any portion of the Property. The Owner (and each
successor in interest, as the case may be) shall fumish a copy of this instrument to any
successors in interest and assume all restrictions and conveyances as recorded on all
said instruments secured by the Deed of Trust. The Authority shall have the right, in the
event of any breach by the Owner of any covenant or agreement herein, to exercise all
the rights and remedies, and to maintain any actions at law or suits in equity or other
proper proceedings to enforce the curing of such breach of covenant or agreement.
Notwithstanding the foregoing, however, the Owner and the successors in interest to
the Owner named herein shall be liable for performance hereof only during their
respective period of ownership of the Unit, provided that the "transferee" Owner has in
writing assumed and agreed to perform the "transferor" Owner's obligations hereunder.
14. No Speculative Investment. The Owner acknowledges that the acquisition
of the Property by the Owner pursuant to this Restrictive Agreement is not intended as a
speculative financial investment.
15. Administration. The Authority may administer the terms hereof or may,
from time to time assign its rights hereunder or designate another entity, person,
licensed real estate broker or organization to administer the terms hereof.
16. Independent and Severable Provisions. If any provision of this instrument
is held by a court of competent jurisdiction to be unenforceable or invalid, such holding
shall not render unenforceable any other provision hereof, each provision hereof being
expressly severable and independently enforceable to the fullest extent permitted by
law.
17. Further Assurances and Recordations. The Owner covenants that upon
request of the Authority's Executive Director, the Owner, or its heirs, successors or
assigns, will execute, acknowledge and deliver, or cause to be executed, acknowledged
and delivered, such further instruments and agreements and do such further acts as
may be necessary, desirable or proper to carry out more effectively the purpose of this
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instrument. At the expiration of the Term, the Authority's Executive Director agrees to
provide to the Owner an instrument in recordable form that has the effect of confirming
the termination of the affordable housing requirements of this instrument.
18. Captions and Section Headings. Captions and section headings used
herein are for convenience only and shall not be used in construing this instrument.
19. No Waiver. No waiver by the Authority of its rights hereunder, or of any
breach by the Owner of any covenant, restriction, or condition herein contained, shall be
effective unless such waiver is in writing, signed by the Authority's Executive Director
and delivered to the Owner. Any waiver by the Authority of its power to terminate the
Owner's estate herein or of any covenant, restriction, or condition herein contained, or
the failure by the Authority to exercise any right or remedy with respect to any breach or
breaches, shall not constitute a waiver or relinquishment for the future of any rights
regarding subsequent sales, or of any such covenant or condition nor bar any right or
remedy of the Authority in respect of any subsequent breach.
20. Entire Agreement. This instrument and its exhibits and/or attachments
constitutes the entire agreement of the parties hereto, and the provisions hereof may be
modified or amended only by a written instrument signed by the party to be charged.
21. Attorneys' Fees. In any action brought to declare the rights granted herein
or to enforce or to interpret any of the terms of this Restrictive Agreement, the prevailing
party shall be entitled to an award of reasonable attorney's fees in an amount
determined by the court.
22. Amendments. Only the Authority, its successors and assigns, and the
Owner and its successors and assigns, shall have the right to consent and agree to
changes in, or to eliminate in whole or in part, any of the covenants, easements, or
other restrictions contained in this Restrictive Agreement, or to subject the Property to
additional covenants, easements or other restrictions.
23. Successors and Assigns. This Restrictive Agreement shall be binding
upon and inure to the benefit of the Authority and the Owner, and their respective
successors and assigns. The terms and provisions hereof shall run with the land and
shall be a burden upon the land, including the Unit, and shall be binding upon the
Owner's successors in interest as purchasers of the Unit, for the benefit of the Authority.
24. Insurance. Owner shall maintain, during the Term, an all-risk Property
insurance policy insuring the Property in an amount equal to the full replacement value
of all improvements on the Property. The policy shall name the Authority as loss payee
and shall contain a statement of obligation on behalf of the carrier to notify the Authority
of any material change, cancellation or termination of coverage at least thirty (30) days
in advance of the effective date of such material change, cancellation or termination.
Owner shall transmit a copy of the certificate of insurance and loss payee endorsement
to the Authority's Executive Director within thirty (30) days of the effective date of this
Agreement, and Owner shall annually transmit to Authority a copy of the certificate of
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insurance and Toss payee endorsement, signed by an authorized agent of the insurance
carrier setting forth the general provisions of coverage. The copy of the certificate of
insurance and loss payee endorsement shall be transmitted to the Authority's Executive
Director as follows:
Palm Desert Housing Authority, it's successors or assigns
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: Executive Director
Any certificate of insurance must be in a form, content, and with companies
approved by Authority's Executive Director.
IN WITNESS WHEREOF, the parties hereto have executed this Restrictive
Agreement as of the day and year first above written.
"AUTHORITY" PALM DESERT HOUSING AUTHORITY,
public body, corporate and politic
"OWNER"
By:
Van G. Tanner, Chairman
HABITAT FOR HUMANITY OF COACHELLA
VALLEY, INC., a California non-profit, public
benefit corporation
By:
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State of California
) ss.
County of Riverside
Draft for Discussion Only
On , 2014, before me, , a 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. (Seal)
Signature
State of California
ss.
County of Riverside
On , 2014, before me, , a 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 Califomia that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. (Seal)
Signature
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EXHIBIT A
LEGAL DESCRIPTION
That certain real property situated in the City of Palm Desert, County of Riverside, State
of California, described as follows:
PARCEL A
A PORTION OF LOT 99 OF PALMA VILLAGE UNIT NO. 7 IN THE CITY OF PALM
DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, FILED IN BOOK 21 OF
MAPS, PAGES 16 THROUGH 18, INCLUSIVE, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 99;
THENCE SOUTH 03°41'00" WEST ALONG THE EASTERLY LINE OF SAID LOT 99, A
DISTANCE OF 93,43 FEET TO THE NORTHEAST CORNER OF PARCEL "A" PER
THAT CERTAIN GRANT DEED TO THE CITY OF PALM DESERT RECORDED
SEPTEMBER 11, 2008 AS INSTRUMENT NO. 2008-0499627, OFFICIAL RECORDS
OF SAID COUNTY;
THENCE SOUTH 89°47'00' WEST ALONG THE NORTHERLY LINE OF SAID
PARCEL "A" PER INSTRUMENT NO. 2008-0499627, A DISTANCE OF 116.22 FEET;
THENCE LEAVING SAID NORTHERLY LINE NORTH 38°17'00" EAST ALONG A LINE
PARALLEL WITH AND 18,88 FEET SOUTHEASTERLY FROM THE WESTERLY LINE
OF SAID LOT 99, A DISTANCE OF 133.36 FEET TO A POINT ON A CURVE
CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 100.00 FEET, A RADIAL
BEARING FROM SAID POINT BEARS NORTH 27°24'00" EAST, SAID CURVE ALSO
BEING THE NORTHERLY PROPERTY LINE OF SAID LOT 99;
THENCE EASTERLY ALONG SAID CURVE AND NORTHERLY PROPERTY LINE OF
LOT 99, THROUGH A CENTRAL ANGLE OF 23°43'00" FOR AN ARC DISTANCE OF
41.39 FEET TO THE POINT OF BEGINNING,
APN: 627-092-050
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EXHIBIT F-1
FORM OF PURCHASER'S RESTRICTIVE AGREEMENT
(begins on next page)
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Palm Desert Housing Authority
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: Housing Division
EXEMPT FROM RECORDING FEES PURSUANT TO G.C. 6103
PURCHASER'S RESTRICTIVE AGREEMENT
THIS PURCHASER'S RESTRICTIVE AGREEMENT (the "Restrictive
Agreement") including DECLARATIONS OF CONDITIONS, COVENANTS AND
RESTRICTIONS dated as of the day of , 20 (the "Effective
Date"), is by and between the PALM DESERT HOUSING AUTHORITY, a public body,
corporate and politic (the "Authority"), and a
(the "Owner").
RECITALS
A. The Owner is concurrently herewith acquiring that certain real property
improved with a single-family residence and located in the City of Palm Desert, County
of Riverside, State of Califomia within the Palm Desert Redevelopment Authority's
Project Area No. 1, legally described in Exhibit "A" attached hereto and incorporated
herein by reference (the "Property").
B. The Authority and Habitat For Humanity of Coachella Valley, Inc., a
California nonprofit public benefit corporation ("Developer") are parties to that certain
Disposition and Development Agreement dated November 13, 2014 (the "DDA").
Pursuant to the DDA, the Developer has constructed a single-family residential dwelling
unit on the Property (the "Unit"), and agreed to sell the Property, as improved, to a
Qualified Household (as defined below). The Owner is a Qualified Household.
C. Concurrently herewith, the Owner has purchased the Property from
Developer and has assumed a promissory note secured by deed of trust (the "Note"),
which Note was made and delivered to Authority in consideration of the Authority's
transfer of title to the Property to Developer, in the sum of
Dollars ($ ) (the "Loan") and secured by a Deed of Trust, Assignments of
Rents and Security Agreement recorded against the Property in the official records of
the County Recorder of Riverside County (the "County Recorder") as Instrument No.
(as amended, the "Deed of Trust").
D. To further the interests of the Authority, and as required by the DDA,
Owner has agreed to enter into and record this Restrictive Agreement, the purpose of
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which is to regulate and provide certain restrictions with regard to occupancy, resale,
and ownership of the Property.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Fundamental Provisions. The following shall serve as the basic terms of
this Restrictive Agreement:
(a) The name of the Owner is
(b) The address of the Property is and legally
described as attached in Exhibit "A".
(c) References herein to statutes or regulations shall be to such
statutes or regulations as amended from time to time, and to any successor statutes
and regulations.
2. Term of Restrictive Agreement. This Restrictive Agreement shall
commence upon the date of recordation hereof in the official records of the County
Recorder, and shall continue through 45 years thereafter (the "Term"). The Authority
has determined that 45 years is the longest period feasible for continuing the Term of
this Restrictive Agreement. Upon resale of the Property, the Authority reserves the right
to require the new buyer to enter into a new Affordable Housing Restriction and Lien
Agreement with a 45-year term from the date of resale. The Owner's repayment of the
Loan shall not terminate this Restrictive Agreement.
3. Definitions. For purposes of this Restrictive Agreement, the terms listed
below shall have the meanings thereinafter specified.
(a) Authority's Executive Director means the Executive Director of the
Authority or a designee as he may so designate from time to time.
(b) AMI means the median family income of the Riverside -San
Bernardino Statistical Area (SMSA), as determined and published annually by the
United States Department of Housing and Urban Development ("HUD"), pursuant to
California Health and Safety Code Section 50093, and the regulations promulgated
thereunder. The AMI shall be adjusted for family size in accordance with state
regulations adopted pursuant to California Health and Safety Code Section 50052.5.
(c) Affordable Housing Cost means a housing cost which is calculated
pursuant to Califomia Health and Safety Code Section 50052.5, as amended from time
to time, and for the purposes hereof, the term "housing cost" shall have the meaning
ascribed to such term in 25 California Code of Regulations Section 6920, as amended
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from time to time, and the term "gross income" shall have the meaning ascribed to such
term in Title 25 of the California Code of Regulations Section 6914.
(d) Person, Family, or Household of Very Low or Low Income means a
person, family or household of one or more persons occupying the same housing unit
whose household income does not exceed the limits set forth in California Health and
Safety Code Sections 50105 and 50079.5, and Title 25 of the California Code of
Regulations Section 6910, et seq., as the case or context may require, adjusted for
family size.
(e) Qualified Household means a Person, Family, or Household of
Very Low or Low Income that is a First -Time Homebuyer and that would not cause the
occupancy of the Unit to exceed the maximum occupancy allowed by the Palm Desert
Municipal Code.
(f) Escrow and Title Costs are to include only those customary fees
charged by an escrow agent and title insurance company with respect to the
administration of escrow and the issuance of an owner's policy of title insurance. These
are not to include loan fees, refinancing fees, broker commissions, prepaid items,
homeowner's dues, or other fees not directly related to the transfer of ownership.
(g) First -Time Homebuver means an individual or individuals or an
individual and his or her spouse who have not owned a home during the three-year
period before the purchase of a home with subsidy assistance, except that the following
individual or individuals may not be excluded from consideration as a First -Time
Homebuyer under this definition:
(i) a displaced homemaker who, while a homemaker, owned a
home with his or her spouse or resided in a home owned by the spouse. A displaced
homemaker is an adult who has not, within the preceding two (2) years, worked on a
full-time basis as a member of the labor force for a consecutive twelve-month period
and who has been unemployed or underemployed, experienced difficulty in obtaining or
upgrading employment and worked primarily without remuneration to care for his or her
home and family;
(ii) a single parent who, while married, owned a home with his
or her spouse or resided in a home owned by the spouse. A single parent is an
individual who is unmarried or legally separated from a spouse and has one or more
minor children for whom the individual has custody or joint custody or is pregnant; and
(h) Owner means both the party identified as "Owner" in first paragraph
of this Restrictive Agreement, and any successor in interest of such Owner with respect
to the Property.
4. Restriction on Transfer.
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(a) The Owner shall not voluntarily or involuntarily, in whole or in part,
sell, convey, transfer, lease, sublease, assign, encumber, mortgage, refinance, or
hypothecate the Property, or enter into agreements to sell, convey, transfer, lease,
sublease, assign, encumber, mortgage, refinance, or hypothecate the Property, except
in compliance with the terms of this Restrictive Agreement and the DDA, and with the
prior written approval of the Authority's Executive Director. Failure to obtain the prior
written approval of the Authority's Executive Director will be deemed a breach of this
Restrictive Agreement.
(b) Any violation or breach of the provisions hereof is prohibited and
any sale or other transfer of the Property enumerated in Section 4(a) above, in whole or
in part, during the Term, as defined herein, shall be null, void and unenforceable and
shall additionally, at the option of the Authority, result in an acceleration of the Note
requiring the Owner to immediately repay the Note in full.
(c) In the event of the death of the Owner with no qualified surviving
joint tenants, the Authority will work with the heirs, probate court, or other responsible
party to either exercise its option to reacquire the Property in accordance with Section 8
hereof or identify a Qualified Household to purchase the Property.
5. Covenant to Maintain Affordability.
(a) The Property is being conveyed to the Owner to increase and
improve the community's supply of low- and moderate -income housing available at an
Affordable Housing Cost in accordance with the affordable housing requirements of the
Community Redevelopment Law (Califomia Health and Safety Code, Section 33000, et
seq). The Owner shall sell, convey, assign, or transfer ownership or occupancy of the
Property only to persons who cannot obtain comparable housing at affordable costs on
the open market as provided in Health and Safety Code Section 33334.2(e)(8). To this
end, the Owner agrees that during the Term the Property shall, except as provided in
Sections 6, 8 and 9 hereof, remain available only at an Affordable Housing Cost and
shall only be occupied by Qualifying Households. In addition, if, without the Authority's
Executive Director's consent, the Owner fails to occupy the Unit as the Owner's sole
and primary residence for a period of 90 calendar days, cumulatively, in any calendar
year, then the Owner shall be in breach of this Restrictive Agreement.
(b) Subject to the provisions of Section 12 hereof, if after the expiration
of the entire Term the Owner has not either (i) sold, conveyed, transferred, or assigned
the Property except to a Qualified Household, where expressly permitted by Section 6
hereof, or (ii) leased or subleased the Property in violation of the terms hereof, or (iii)
refinanced, hypothecated, encumbered, or mortgaged the Property in violation of the
terms hereof, or (iv) sold the Property at a price exceeding the maximum price permitted
under Section 11 hereof, or (v) otherwise breached the terms and provisions hereof,
then the Authority shall remove the affordability restriction and forgive the principal
balance outstanding and any accrued interest owed under the Note.
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(c) As a condition to selling the Property, Owner and any person or
entity to whom Owner sells the Property or any other successors in interest to the
Property, who will then also be an "Owner", shall require the buyer of the Property to
execute, acknowledge and deliver to the Authority's Executive Director an assumption
of the Note and this Restrictive Agreement (in form and substance acceptable to the
Authority's Executive Director) which shall include a requirement that any subsequent
buyer of the Property shall also execute, acknowledge and deliver to the Authority's
Executive Director such an assumption agreement.
6. Permitted Transfers and Mortgages.
(a) Conveyances to Qualified Households Property. Subject to the
option rights of the Authority herein, the Owner may convey the Property to Qualified
Households, on the condition that (i) the Owner complies with the requirements of
Sections 9 and 11 hereof, (ii) the purchaser covenants to occupy the Unit as such
party's sole and primary residence, and (iii) the purchase price does not exceed the
maximum permitted resale price set forth in Section 11 hereof. Any permitted
transferee shall acquire the Property subject to the terms and conditions hereof or a
new Affordable Housing Restriction and Lien Agreement at the Authority's Executive
Director's discretion. Any permitted transferee shall execute in recordable form any
documents necessary to accommodate the transfer in form and content satisfactory to
the Authority's Executive Director.
(b) Intra-Familv Conveyances. The following transfers of title shall not
be breaches of this instrument: transfer by gift, devise, or inheritance to the Owner's
spouse; taking of title by surviving joint tenant that is the Owner's spouse; transfer of
title to a spouse as part of a divorce or dissolution proceeding; acquisition of title in
conjunction with marriage; transfers of title to adult child when the child is approved by
the Authority's Executive Director or his designee as a Qualified Household at the time
of transfer. A transfer to children of the Owner where the income of such children
exceeds the maximum household income permitted hereunder shall give rise to the
option in favor of the Authority to purchase the Property described in Section 8;
provided, however, such option shall be exercised by the Authority within 60 days after
receipt by the Authority of written notice of such transfer, and the purchase price shall
be the amount set forth in Section 8(e).
(c) First Trust Deed - Purchase. The Owner may encumber the
Property with a first position deed of trust or mortgage securing a purchase money loan
on the condition that the first position trust deed complies with the terms of this
Restrictive Agreement.
(d) Refinancing of First Trust Deed. Notwithstanding any restriction or
covenants to the contrary that are superior to the lien of the Deed of Trust, the Owner,
may refinance any first trust deed or mortgage encumbering the Unit provided that prior
written approval of the transaction is obtained from the Authority according to the
notification and approval process designated in Section 10 below. Approval will be
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subject to the limitations that the principal amount, interest, terms and conditions are
reasonable at the time the refinancing takes place (in the opinion of the Authority), and
that the principal amount thereof does not exceed the original principal amount of the
loan secured by the first trust deed or mortgage being refinanced (plus reasonable loan
fees and costs) and together with all subordinate deeds of trust does not over encumber
the property. Failure to obtain prior Authority approval to refinance any first trust deed
or mortgage encumbering the Unit shall be deemed a violation or breach of terms of this
Restrictive Agreement and at the option of the Authority shall constitute a default
hereunder.
(e) Junior Deeds of Trust. Notwithstanding any restriction or
covenants to the contrary that are superior to the lien of the Deed of Trust, any loan to
be secured by a junior deed of trust encumbering the Property shall require the prior
written approval of the Authority's Executive Director according to the notification and
approval process designated in Section 10 below. The Authority's Executive Director
shall consider in good faith whether to permit a loan of the aforementioned type, subject
to the restrictions that the proceeds of said loan are to be used to pay for repairs or the
construction of improvements to the Property, on the following terms and conditions: (i)
the principal amount of such loan shall not exceed the cost of the repairs or the
improvements (plus loan fees and loan costs), (ii) the loan is originated by a bank,
savings and loan association, or other institutional lender, (iii) the interest rate and
payment terms thereon are reasonable (in the Authority's Executive Director's opinion),
(iv) the Owner shall be capable of meeting the monthly payments provided by such loan
(in the Authority's opinion), and (v) the Property is not over encumbered. The
improvements to be finance with the proceeds of any loan shall not include any items
that are of a luxury nature, i.e., in or above ground pools or spas, interior or exterior
decorative items. Failure to obtain prior Authority approval for any loan to be secured
by a junior deed of trust encumbering the Property shall be deemed a violation or
breach of the terms of this Restrictive Agreement and at the option of the Authority shall
constitute a default hereunder.
7. Subordination to First Trust Deed Encumbrances.
(a) The Authority recognizes that immediately prior to the recordation hereof,
the Owner is or may be recording a deed of trust that shall be superior to this Restrictive
Agreement and the Deed of Trust, and the Authority agrees that, in such event, such
deed of trust recorded prior hereto shall be superior to this Restrictive Agreement and
the Deed of Trust. Therefore, in the event of the foreclosure of such deed of trust, or
the conveyance by deed in lieu of foreclosure of the Property to a bank, savings and
loan, or other institutional lender that is the beneficiary of such deed of trust superior to
the lien hereof, the provisions hereof shall terminate and be of no force or effect;
provided, however, if the senior lien holder acquires title to the Property pursuant to a
deed in lieu of foreclosure, then the terms hereof shall terminate only if (i) the Authority
has been given written notice of a default under the senior deed of trust and (ii) the
Authority shall not have cured the default under the senior deed of trust, or diligently
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pursued the curing of the default as determined by the senior lien holder, within 60 days
after the date the notice is sent to the Authority.
On recording any such first deed of trust as described above, the borrower, at the
borrower's expense, shall cause to be recorded in the office of the County Recorder a
written request for a special notice of default in favor of the Authority.
(b) The Authority further agrees that, in the event of a resale of the Property
or a refinancing of a deed of trust that was superior to the lien hereof (in each case in
compliance with the applicable provisions of this Restrictive Agreement), the Authority
agrees to execute a subordination agreement, in form and substance acceptable to the
Authority, subordinating this Restrictive Agreement and the Deed of Trust to any first
deed of trust, in favor of any bank, savings and loan association, or other institutional
lender, subject to the following terms and conditions:
(i) The principal amount of the new loan does not exceed the original
principal amount of the loan being refinanced, plus reasonable loan fees and costs;
(ii) The terms and provisions of the loan secured by such deed of trust,
including interest rate, term, amortization, fees, acceleration clauses, late payment
charges, and prepayment charges, shall conform substantially to the provisions in the
lender's loan documents for comparable loans, unless deviations are pre -approved in
writing in advance of the subordination by the Authority;
(iii) The borrower shall deliver to the Authority true and accurate copies
of the loan agreement, proposed promissory note, deed of trust, and a written statement
from the borrower certifying that such documents are true and accurate copies of the
loan documents which the borrower intends to execute in connection with the loan;
(iv) On recording the new first trust deed, the borrower, at the
borrower's expense, causes to be recorded in the office of the County Recorder a
written request for a special notice of default in favor of the Authority;
(v) The borrower shall deliver to the Authority, at the owner's expense,
evidence of insurance coverage satisfying the requirement of Section 30 hereof; and
(vi) The Authority may condition any such subordination upon its
receipt of assurances from a reputable title company that this Restrictive Agreement is
not being subordinated to any liens or encumbrances other than such new loan as the
result of such subordination.
If the Authority, at its sole election, advances any sums to any senior lien
holders that are due and payable by the Owner to the senior lien holder, such amounts
shall immediately be due and payable by the Owner to the Authority together with
interest thereon at the maximum legal rate permitted under California usury laws.
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8. Authority Option to Purchase.
(a) Option. In order to maintain and insure that the Unit shall remain
affordable to and only occupied by a Qualified Household, the Authority is hereby
granted an option, throughout the Term hereof, to purchase the Property if the Owner
desires to transfer the Property, or to find another Qualified Household to purchase the
Property. The option shall be exercised in writing by the Authority's Executive Director,
if at all, within sixty (60) days after the Authority's Executive Director's receipt of the
written notice (the "Notice of Proposed Sale") of the Owner's desire to transfer the
Property as provided in Section 9(a), below. During such sixty (60) day period Owner
may also concurrently attempt to market the Property to sell it to a Qualified Household,
as provided in Section 9 hereof. With Authority approval, the Owner may enter into an
agreement to sell the Property to a Qualified Household at a price that does not exceed
the maximum price set forth in Section 11 hereof. Provided the Authority's Executive
Director approves the Qualified Household that the owner presents, then the Authority
shall not then exercise the option or find another buyer. If the Authority exercises the
Option, then the Authority's Executive Director shall promptly open escrow thereafter
and shall close escrow for the purchase of the Unit prior to the date that is sixty (60)
days after the Authority opens escrow. Title to the Property shall be delivered to the
Authority at the close of escrow free and clear of monetary liens and encumbrances,
and closing costs shall be allocated in the fashion as is customary for buyers and sellers
in Riverside County.
(b) Authority's Failure to Close Following Exercise of the Option. If the
Authority exercises the option to purchase but, due to the Authority's sole fault, the
Authority does not close escrow within one hundred twenty (120) days after the date the
Authority first received the Notice of Proposed Sale, then the Owner shall be entitled to
sell the Property to a person or family that is not a Qualified Household, provided,
however, (i) if the Property is sold to a person or family that is not a Qualified Household
or (ii) if the Property is sold at a price that exceeds the maximum resale price set forth in
Section 11 hereof, then the Owner shall repay the Loan (including all accrued interest
thereon) to the Authority as provided in Section 9(c) below.
(c) Terms of Purchase. If the Authority exercises the option, the
purchase price to be paid by the Authority shall be paid all in cash at the close of
escrow. The Owner may require a deposit to open escrow in an amount not to exceed
three percent (3%) of the purchase price. Title to the Property shall be delivered to the
Authority at the close of escrow free and clear of monetary liens and encumbrances.
Closing costs shall be allocated between the buyer and seller according to the
customary practices in Riverside County in effect at the time the option is exercised.
(d) Conditions to Close of Escrow. The escrow instructions may
provide for conditions or contingencies of the type and nature customarily included in
residential purchase escrows (including but not limited to inspection by the Authority
and elimination of pests, and preliminary title report approvals), provided that any such
conditions or contingencies (other than the status of title to the Property at the time of
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conveyance and other conditions which by their nature cannot be satisfied prior to
closing) must be satisfied or waived on or before the close of escrow. The proceeds of
the sale shall be used to pay off all monetary liens and encumbrances upon the close of
escrow. Escrow shall close within 60 days after the Authority exercises its option to
purchase.
(e) Purchase Price. The purchase price of the Property to be paid by
the Authority pursuant to the Authority's exercise of the Option shall be the lesser of:
(i) The actual purchase price paid by the Owner for the
Property plus reasonable and customary Escrow and Title Costs actually incurred by
the Owner in purchasing such Property, times a fraction, the numerator of which is the
AMI for the year in which the sale takes place, and the denominator of which is AMI in
which the Owner purchased the Property (and subtracting therefrom the amount of the
Loan, which the Authority shall assume from the Owner); or
(ii) the maximum resale price determined pursuant to
Section 11(a), below, assuming that the Authority, as purchaser, is of the same income
category as was the seller at the time the seller purchased the Property; or
(iii) the fair market value of the Property, as determined by an
appraiser approved by the Authority's Executive Director.
9. Resale Price Controls and Procedures.
(a) If the Owner elects at any time to sell the Property, then the Owner
shall, prior to signing a listing agreement or other authorization to sell with a real estate
broker, first provide to the Authority's Executive Director a notice (the "Notice of
Proposed Sale") setting forth the Owner's intention to sell the Property, and a property
information form to be prepared by the Authority. Such Notice shall contain information
about the Owner's original purchase price of the Property. Authority's Executive
Director shall have sixty (60) days from the time following the receipt by the Authority's
Executive Director of the Notice to find a new buyer for the Property being sold, or sixty
(60) days to exercise the Authority's option to purchase described in Section 7;
provided, however, the Authority or its designee may shorten such time period upon a
showing of hardship by the Owner. The Owner agrees to consider as purchasers those
Qualified Households identified on a list that may be maintained by the Authority.
Nothing contained herein shall be construed as imposing on the Authority any obligation
to find a purchaser of the Unit if the Owner has elected to sell the Property.
(b) If the Owner resells the Property to a Qualified Household at a price
that does not exceed the price set forth in Section 11, then the provisions hereof shall
continue to encumber the Property, and the Authority shall subordinate its interest in
this Restrictive Agreement and the Deed of Trust as provided in Section 7 hereof. Each
successor in interest to Owner that is a Qualified Household shall acquire the Property
subject to the affordability covenants of forty-five (45) years, and restrictions on such
property provided in this Restrictive Agreement and the Deed of Trust; and if Authority
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purchases such property and resells the Property, such acquisition shall not operate to
merge this Restrictive Agreement and the Deed of Trust into the Authority's fee interest.
(c) If, after expiration of the sixty (60) day period, Authority or its
designee has failed to procure an eligible and qualified buyer and the Authority has not
exercised its option, then the Owner shall then be free to seek a buyer for the Property
without any limitation on resale price or income category of the purchaser; provided,
however, (i) if the purchaser is not a Qualified Household, or (ii) if the resale price
exceeds the maximum resale price set forth in Section 11 hereof, then the Owner shall
repay the Loan (including all accrued interest thereon) to the Authority, plus an amount
equal to 25% of the amount by which the net sale proceeds received by the Owner
exceed the maximum resale price set forth in Section 11.
(d) The escrow instructions may provide for conditions or
contingencies of the type and nature customarily included in residential purchase
escrows (including but not limited to financing contingencies, inspection rights, and
preliminary title report approvals), provided that any such conditions or contingencies
(other than the status of title to the Property at the time of conveyance and other
conditions which by their nature cannot be satisfied prior to closing) must be satisfied or
waived on or before the close of escrow. The proceeds of the sale shall be used to pay
off all monetary liens and encumbrances upon the close of escrow. Escrow shall close
within a reasonable time after opening thereof.
(e) The Owner shall notify any proposed purchaser in writing prior to
such person's execution of escrow instructions, deposit receipt, purchase and sale
agreement or similar agreement, whichever is earliest, that the title to the Property will
be restricted in the manner described herein.
(f) The Owner may require a deposit to open escrow in an amount not
to exceed three percent (3%) of the purchase price. Title to the Property shall be
delivered to the purchaser at the close of escrow free and clear of monetary liens and
encumbrances, except as provided for in this Restrictive Agreement. Closing costs
shall be allocated between the buyer and seller according to the customary practices in
Riverside County in effect at the time the escrow is opened.
(g) For the purpose of confirming with the Authority that a proposed
purchaser is a Qualified Household that will be paying a purchase price that is in
compliance with the terms hereof, the Owner shall notify the Authority's Executive
Director in writing of any offer from a prospective purchaser which the Owner intends to
accept, disclosing the identity of such prospective purchaser and providing the Authority
with such financial, credit, and other information on such prospective purchaser as
required by the Authority, including the following:
(i) Name and address of the purchaser.
(ii) Number of persons comprising the purchaser's household
and their names and ages.
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(iii) Proposed purchase price of the Property, and any other
consideration for the purchase of the Property.
(iv) Verification purchaser is a First Time Home Buyer.
(v) Amount of down payment.
(vi) Terms of any loan that will be used by the purchaser to
finance the purchase of the Unit, including, but not limited to, principal, interest rate,
term, and loan fees.
(vii) Closing date.
(viii) Aggregate annual income of the purchaser's household.
(ix) Most recent federal and state income tax returns of the
purchaser and all other members of the purchaser's household for the preceding two (2)
calendar years, and verification of the proposed purchaser's salary or wages from the
purchaser's employer or from current pay stubs showing year to date as well as period
payroll for the preceding two (2) calendar years.
(x) Copy of any proposed purchase and sale agreement,
escrow instructions, loan application, or other agreements between the Owner and the
purchaser of the Property or relating to the sale of the Unit including closing documents
or any other documentation that the Authority deems appropriate to implement this
Restrictive Agreement.
(xi) A written statement signed by the proposed purchaser that
the Unit will be occupied by the purchaser of such Unit and used as his or her primary
residence.
In lieu of providing the foregoing information, these requirements shall be deemed to
have been satisfied by delivery to the Authority's Executive Director of a written
certification of the foregoing information from the purchaser's lender who shall hold a
first position trust deed encumbering the Property, which certification shall be furnished
to the Authority's Executive Director at least 15 days prior to the close of escrow for the
Property.
The Authority's Executive Director shall have 30 days to review the information (unless
the Authority received the certification from prospective purchaser's lender, in which
case the Authority shall have 15 days to review the information). If the Authority's
Executive Director fails to approve the purchaser within such period of time, then the
purchaser shall be deemed approved by the Authority. The Authority's Executive
Director may require the purchaser to submit other written documentation reasonably
requested by the Authority's Executive Director to verify the information set forth herein
and to determine that the Affordable Housing Cost restrictions of this instrument are
being satisfied. If the Authority's Executive Director receives all such prospective
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purchaser information requested by the Authority's Executive Director, the Authority's
Executive Director shall determine whether the prospective purchaser is a Qualified
Household, and shall thereafter immediately notify the Owner in writing that the
prospective sale is authorized and approved, or that the prospective purchaser does not
qualify to purchase the Unit as a Qualified Household.
If the Authority's Executive Director notifies the Owner that the sale is authorized and
approved, the Owner shall proceed to complete the sale of the Property within seventy-
five (75) days of the date of such approval from the Authority's Executive Director.
10. Notification Prior to Mortaaae. Encumbrance or Hypothecation. If Owner
desires to refinance any loan secured by a first trust deed encumbering the Unit
pursuant to Section 6(d), or to borrow funds for a new loan to be secured by a junior
trust deed encumbering the Unit the proceeds of which are to be used to pay for repairs
or the construction of improvements to the Property pursuant to Section 6(e), prior
written approval of the Authority's Executive Director is required. To request approval,
at least 30 days prior to the recordation of the intended deed of trust or mortgage, the
Owner shall submit to the Authority's Executive Director in writing the following
information:
(a) Name and address of lender.
(b) Terms of the loan, including, but not limited to, principal, interest
rate, term, and loan fees.
(c) Closing date of the loan.
(d) Copy of any proposed escrow instructions, loan application, or
other agreements between the Owner and the lender.
(e) Written documentation of compliance with -the conditions for
Authority approval as set forth in Section 6(d) or Section 6(e), whichever applies.
(f) Other written documentation reasonably requested by the Authority
to verify the information set forth herein.
The Authority's Executive Director shall have twenty (20) working days,
after its receipt of all of such information to approve or disapprove the proposed
refinancing or loan.
11. Restriction on Resale Price. Except as otherwise provided in by
Sections 8 and 9, the Owner shall not resell the Property at a price higher than the
lesser of the following:
(a) An Affordable Housing Cost for the prospective purchaser,
assuming (i) a reasonable down payment, and (ii) a 30 year fixed rate mortgage at
prevailing interest rates.
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(b) The sum of:
(i) the selling Owner's original purchase price for the Property
times a fraction, the numerator of which is the AMI for the year in which the sale takes
place, and the denominator of which is AMI in which the Owner purchased the Property;
plus
(ii) Escrow and Title Costs; plus
(iii) if the Owner sells the Property after a default under a
mortgage or deed of trust, but prior to a trustee's sale or foreclosure sale, the purchase
price shall be further increased by all expenses actually incurred by the holder of such
mortgage or beneficiary under such deed of trust due to the Owner's default including,
but not limited to, trustee's fees, attorney's fees, costs of sale and debt service on the
debt secured by such mortgage or deed of trust.
(c) the fair market value of the Property, as determined by an appraiser
approved by the Authority's Executive Director.
12. Repayment of the Loan. Upon any resale of the Property, the Loan shall
be due and payable, except as follows:
If the resale of the Property is to another Qualified Household, then (i) all interest
accrued from the date of the seller's acquisition of the Property through the closing date
of the resale to the new Qualified Household shall be paid at close of escrow, (ii)
interest shall then accrue from and after the closing date of the resale (with such
accrued interest again to be subject to payment upon another resale to yet another
Qualified Household). At the end of the forty-five (45) year Term hereof, if there have
been no resales to any person, family or household other than a Qualified Household,
the principal balance outstanding and any accrued interest shall be forgiven by the
Authority subject to and in accordance with the provisions of Section 5(b) hereof.
13. Annual Report. The Authority's Executive Director shall have the option of
requesting information not more than once annually, to implement this Restrictive
Agreement.
14. Nondiscrimination Covenants. By the Owner's acceptance hereof, the
Owner agrees, for itself and its successors and assigns, to refrain from restricting the
transfer of the Unit on the basis of race, color, creed, religion, ancestry, sex, marital
status, national origin or age of any person. All such deeds and leases entered into with
respect to the Property shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons claiming
under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of any basis listed in subdivision (a) or (d) of
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Section 12955 of the California 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 California Government Code, in the sale,
transfer, use, occupancy, tenure or enjoyment of the premises herein conveyed, nor
shall the Grantee himself or herself, or any person claiming under or through him or her,
establish or permit any practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of vendees in the
premises herein conveyed. The foregoing covenants shall run with the land.
Notwithstanding the immediately preceding paragraph, with respect to
familial status, said paragraph shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the California Government Code. With
respect to familial status, nothing in said paragraph shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing
for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil
Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government
Code shall apply to said paragraph."
(b) In contracts: "The contracting party or parties hereby covenant by
and for himself or herself and their respective successors and assigns, that there shall
be no discrimination against 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 California
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
California Government Code, in the sale, transfer, use, occupancy, tenure or enjoyment
of the premises, nor shall the contracting party or parties, any subcontracting party or
parties, or their respective assigns or transferees, establish or permit any such practice
or practices of discrimination or segregation.
Notwithstanding the immediately preceding paragraph, with respect to
familial status, said paragraph shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the California Govemment Code. With
respect to familial status, nothing in said paragraph shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing
for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civil
Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government
Code shall apply to said paragraph."
The foregoing shall be a covenant running with the land for the benefit of,
and as a burden upon the Property, and shall remain in effect in perpetuity. Nothing
contained herein shall be construed as permitting the Owner or Successors to rent or
lease the Property without the Authority's prior written consent.
15. Maintenance of the Unit/Prohibition Against Waste. The Owner shall not
commit waste upon the Property. The Owner shall not remove or demolish the
improvements on the Property. The Owner shall, throughout the Term hereof, keep and
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maintain the Property and the improvements thereon in good condition and repair. If the
Owner at any time fails to so keep and maintain the Property in good condition and
repair, after 30 days notice from the Authority's Executive Director, the Authority shall
have a right to enter onto the Property and perform such deferred maintenance, and the
Owner shall promptly reimburse the Authority for all costs incurred by the Authority in
performing such maintenance.
16. Default. If either party defaults with regard to any of the provisions of this
Restrictive Agreement, the nondefaulting party shall serve written notice of such default
upon the defaulting party. If the default is not cured by the defaulting party within thirty
(30) days after service of the notice of default, or if the default is not commenced to be
cured within thirty (30) days after service of the notice of default and is not cured
promptly within a reasonable period of time after commencement, the defaulting party
shall be liable to the other party for damages caused by such default.
17. Notices. All notices to be delivered to the parties pursuant to the terms
hereof shall be in writing and shall be delivered in person or by U.S. Mail or other
delivery service to the addresses listed below.
Any of the following addresses may be changed by written notice. If notice is
given it shall be deemed effective upon 3 business days after deposit of same, postage
prepaid, in the U.S. Mail, or the date of actual receipt as evidenced by personal
acknowledgment, return receipt or other comparable means.
If to Owner:
Habitat for Humanity
34500 Gateway Drive, Suite 100
Palm Desert, CA 92211
If to the Authority: Palm Desert Housing Authority
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn: Executive Director
18. Covenants to Run With the Land. The covenants established in this
Restrictive Agreement shall be binding on the Owner and any successor in interest of
the Owner, and shall be for the benefit and in favor of the Authority, its successors and
assigns, the City of Palm Desert, and Alphonso Sanchez the real party in interest under
that certain Stipulation for Entry of Judgment, Riverside County Superior Court Case
No. INDIO 51124; and such covenants shall run with the land in favor of the Authority
and shall be a burden upon the Property and shall be for the benefit of the parcels that
comprise the Project Area owned by the City of Palm Desert, as described in Instrument
No. 23610, recorded on December 22, 1981 in the Official Records of Riverside County.
The Authority is deemed the beneficiary of the terms and provisions of this Restrictive
Agreement and of the covenants running with the land, for and in its own rights 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 Restrictive Agreement and the
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covenants running with the land have been provided. The covenants hereof shall be
enforceable by any of the persons or entities set forth in Health and Safety Code
Section 33334.3(f). The covenants established in this Restrictive Agreement shall be
incorporated by reference in all deeds conveying all or any portion of the Property. The
Owner (and each successor in interest, as the case may be) shall furnish a copy of this
instrument to any successors in interest and assume all restrictions and conveyances
as recorded on all said instruments secured by the Deed of Trust. The Authority shall
have the right, in the event of any breach by the Owner of any covenant or agreement
herein, to exercise all the rights and remedies, and to maintain any actions at law or
suits in equity or other proper proceedings to enforce the curing of such breach of
covenant or agreement. Notwithstanding the foregoing, however, the Owner and the
successors in interest to the Owner named herein shall be liable for performance hereof
only during their respective period of ownership of the Unit, provided that the
"transferee" Owner has in writing assumed and agreed to perform the "transferor"
Owner's obligations hereunder.
19. No Speculative Investment. The Owner acknowledges that the acquisition
of the Property by the Owner pursuant to this Restrictive Agreement is not intended as a
speculative financial investment.
20. Administration. The Authority may administer the terms hereof or may,
from time to time assign its rights hereunder or designate another entity, person,
licensed real estate broker or organization to administer the terms hereof.
21. Independent and Severable Provisions. If any provision of this instrument
is held by a court of competent jurisdiction to be unenforceable or invalid, such holding
shall not render unenforceable any other provision hereof, each provision hereof being
expressly severable and independently enforceable to the fullest extent permitted by
law.
22. Further Assurances and Recordations. The Owner covenants that upon
request of the Authority's Executive Director, the Owner, or its heirs, successors or
assigns, will execute, acknowledge and deliver, or cause to be executed, acknowledged
and delivered, such further instruments and agreements and do such further acts as
may be necessary, desirable or proper to carry out more effectively the purpose of this
instrument. At the expiration of the Term, the Authority's Executive Director agrees to
provide to the Owner an instrument in recordable form that has the effect of confirming
the termination of the affordable housing requirements of this instrument.
23. Captions and Section Headinas. Captions and section headings used
herein are for convenience only and shall not be used in construing this instrument.
24. No Waiver. No waiver by the Authority of its rights hereunder, or of any
breach by the Owner of any covenant, restriction, or condition herein contained, shall be
effective unless such waiver is in writing, signed by the Authority's Executive Director
and delivered to the Owner. Any waiver by the Authority of its power to terminate the
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Owner's estate herein or of any covenant, restriction, or condition herein contained, or
the failure by the Authority to exercise any right or remedy with respect to any breach or
breaches, shall not constitute a waiver or relinquishment for the future of any rights
regarding subsequent sales, or of any such covenant or condition nor bar any right or
remedy of the Authority in respect of any subsequent breach.
25. Entire Agreement. This instrument constitutes the entire agreement of the
parties hereto, and the provisions hereof may be modified or amended only by a written
instrument signed by the party to be charged.
26. Attorneys' Fees. In any action brought to declare the rights granted herein
or to enforce or to interpret any of the terms of this Restrictive Agreement, the prevailing
party shall be entitled to an award of reasonable attorney's fees in an amount
determined by the court.
27. Amendments. Only the Authority, its successors and assigns, and the
Owner and its successors and assigns, [in and to all or any part of the fee title to the
Property] shall have the right to consent and agree to changes in, or to eliminate in
whole or in part, any of the covenants, easements, or other restrictions contained in this
Restrictive Agreement, or to subject the Property to additional covenants, easements or
other restrictions.
28. Successors and Assigns. This Restrictive Agreement shall be binding
upon and inure to the benefit of the Authority and the Owner, and their respective
successors and assigns. The terms and provisions hereof shall run with the land and
shall be a burden upon the land, including the Property Unit, and shall be binding upon
the Owner's successors in interest as purchasers of the Property Unit, for the benefit of
the Authority.
29. Foreclosure of Superior Mortgage. In the event of the foreclosure of a
deed of trust or mortgage superior to the lien hereof, or the conveyance by deed in lieu
of foreclosure of the Unit to a bank, savings and loan, or other institutional lender
holding a deed of trust or mortgage superior to the lien hereof, the provisions hereof
shall terminate and be of no force or effect; provided, however, if the senior lien holder
acquires title to the Unit pursuant to a deed in lieu of foreclosure, then the terms hereof
shall terminate only if (i) the Authority has been given written notice of a default under
the senior deed of trust and (ii) the Authority shall not have cured the default under the
senior deed of trust, or diligently pursued the curing of the default as determined by the
senior lien holder, within 60 days after the date the notice is sent to the Authority's
Executive Director.
30. Insurance. Owner shall maintain, during the Term, an all-risk Property
insurance policy insuring the Property in an amount equal to the full replacement value
of the structure on the Property. The policy shall name the Authority as loss payee and
shall contain a statement of obligation on behalf of the carrier to notify the Authority of
any material change, cancellation or termination of coverage at least thirty (30) days in
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advance of the effective date of such material change, cancellation or termination.
Owner shall transmit a copy of the certificate of insurance and Toss payee endorsement
to the Authority's Executive Director within thirty (30) days of the effective date of this
Agreement, and Owner shall annually transmit to Authority a copy of the certificate of
insurance and Toss payee endorsement, signed by an authorized agent of the insurance
carrier setting forth the general provisions of coverage. The copy of the certificate of
insurance and loss payee endorsement shall be transmitted to the Authority's Executive
Director as follows:
Palm Desert Housing Authority, it's successors or assigns
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: Executive Director
Any certificate of insurance must be in a form, content, and with companies
approved by Authority's Executive Director.
IN WITNESS WHEREOF, the parties hereto have executed this Restrictive
Agreement as of the day and year first above written.
"AUTHORITY" PALM DESERT HOUSING AUTHORITY,
public body, corporate and politic
"OWNER"
By:
By:
Name:
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G: HOUSING PROGRAMS' FIRST TIME HOMER(1YFR - ARR'HABITAT FOR HCMANITY.SAN BFNITO I.OTS 99 AND 99 Ilahital for Ilurnanily of Coachell Valley Inc - DDA I I -I 1-
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State of California
County of Riverside
) ss.
)
)
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On , 20, before me, , a 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. (Seal)
Signature
State of Califomia
County of Riverside
)
)
ss.
)
On , 20 , before me, , a 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. (Seal)
Signature
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EXHIBIT A
LEGAL DESCRIPTION
That certain real property situated in the City of Palm Desert, County of Riverside, State
of California, described as follows:
PARCEL A
A PORTION OF LOT 99 OF PALMA VILLAGE UNIT NO. 7 IN THE CITY OF PALM
DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, FILED IN BOOK 21 OF
MAPS, PAGES 16 THROUGH 18, INCLUSIVE, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 99;
THENCE SOUTH 03°41'00" WEST ALONG THE EASTERLY LINE OF SAID LOT 99, A
DISTANCE OF 93,43 FEET TO THE NORTHEAST CORNER OF PARCEL "A" PER
THAT CERTAIN GRANT DEED TO THE CITY OF PALM DESERT RECORDED
SEPTEMBER 11, 2008 AS INSTRUMENT NO. 2008-0499627, OFFICIAL RECORDS
OF SAID COUNTY;
THENCE SOUTH 89°47'00' WEST ALONG THE NORTHERLY LINE OF SAID
PARCEL "A" PER INSTRUMENT NO. 2008-0499627, A DISTANCE OF 116.22 FEET;
THENCE LEAVING SAID NORTHERLY LINE NORTH 38°17'00" EAST ALONG A LINE
PARALLEL WITH AND 18,88 FEET SOUTHEASTERLY FROM THE WESTERLY LINE
OF SAID LOT 99, A DISTANCE OF 133.36 FEET TO A POINT ON A CURVE
CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 100.00 FEET, A RADIAL
BEARING FROM SAID POINT BEARS NORTH 27°24'00" EAST, SAID CURVE ALSO
BEING THE NORTHERLY PROPERTY LINE OF SAID LOT 99;
THENCE EASTERLY ALONG SAID CURVE AND NORTHERLY PROPERTY LINE OF
LOT 99, THROUGH A CENTRAL ANGLE OF 23°43'00" FOR AN ARC DISTANCE OF
41.39 FEET TO THE POINT OF BEGINNING,
APN: 627-092-050
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EXHIBIT G
FORM OF DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT
(begins on next page)
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Recording Requested By, and
When Recorded, Mail To:
Palm Desert Housing Authority
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attn: Housing Division
Free Recording Requested Pursuant To Government Code Section 27383
Space Above This Line for Recorder's Use
DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
APN(s):
This Deed of Trust, Assignment of Rents and Security Agreement is made this
13th day of November, 2014, by HABITAT OF HUMANITY OF THE COACHELLA
VALLEY, INC., herein called Trustor, whose address is 34500 Gateway Drive, Suite
100, Palm Desert, California in favor of First American Title Insurance Company, as
Trustee, for the benefit of the PALM DESERT HOUSING AUTHORITY, a public body,
corporate and politic, herein called Beneficiary,
Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND
ASSIGNS TO TRUSTEE IN TRUST, WITH POWER OF SALE, that property in
Riverside County, California, described in Exhibit A attached hereto and incorporated
herein by this reference, together with all improvements and fixtures thereon and all
goods and other personal property owned by Trustor and located thereon (collectively,
the "Property").
TOGETHER WITH the rents, issues and profits thereof, SUBJECT, HOWEVER,
to the right, power and authority hereinafter given to and conferred upon Beneficiary to
collect and supply such rents, issues and profits.
For the Purpose of Securing:
1. Performance of each agreement of Trustor herein contained.
2. Payment of the indebtedness evidenced by a promissory note of even
date herewith, and any extension or renewal thereof, in the principal sum of $34,200
executed by Trustor in favor of Beneficiary or order.
3. The obligations of the Trustor, and its successors -in -interest to the
Property, under that certain Affordable Housing Restriction and Lien Agreement dated
November 13, 2014 (the "Restrictive Agreement"), by and between Trustor and
Beneficiary, and recorded concurrently herewith.
To Protect the Security of This Deed of Trust, Trustor Agrees:
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(1) To keep said Property in good condition and repair; not to remove or
demolish any building thereon; to complete or restore promptly and in good
workmanlike manner any building which may be constructed, damaged or destroyed
thereon and to pay when due all claims for labor performed and materials fumished
thereof; to comply with all laws affecting said Property, or requiring any alterations or
improvements to be made thereon; not to commit or permit waste thereof; not to
commit, suffer or permit any act upon said Property in violation of law; and to do all
other acts which from the character or use of said Property may be reasonably
necessary, the specific enumerations herein not excluding the general.
(2) To provide or cause to provide, maintain and deliver to Beneficiary fire
insurance satisfactory to and with loss payable to Beneficiary and any superior trust
deed holder, as their interests may appear. The amount collected under any fire or
other insurance policy may be applied by Beneficiary upon any indebtedness secured
hereby and in such order as Beneficiary may determine, or at option of Beneficiary the
entire amount so collected or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or notice of default hereunder
or invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs
and expenses, including cost of evidence of title and attorney's fees in a reasonable
sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and
in any suit brought by Beneficiary to foreclose this Deed of Trust.
(4) To pay: at least ten days before delinquency all taxes and assessments
affecting said Property, including assessments on appurtenant water stock; when due,
all encumbrances, charges and liens, with interest, on said Property or any part thereof,
which appear to be prior or superior hereto; all costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided,
then Beneficiary or Trustee, but without obligation so to do and without notice to or
demand upon Trustor and without releasing Trustor from any obligation hereof, may:
(a) make or do the same in such manner and to such extent as either may deem
necessary to protect the security hereof, Beneficiary or Trustee being authorized to
enter upon said Property for such purposes; (b) appear in and defend any action or
proceeding purporting to affect the security hereof or the rights or powers of Beneficiary
or Trustee; (c) pay, purchase, contest or compromise any encumbrance, charge or lien
which in the judgment of either appears to be prior or superior hereto; and (d) in
exercising any such powers, pay necessary expenses, employ counsel and pay his
reasonable fees.
(5) To pay immediately and without demand all sums so expended by
Beneficiary or Trustee, with interest from date of expenditure at the amount allowed by
law in effect at the date hereof, and to pay for any statement provided for by law in
effect at the date hereof regarding the obligation secured hereby any amount demanded
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by the Beneficiary not to exceed the maximum allowed by law at the time when said
statement is demanded.
(6) That any award of damages in connection with any condemnation for
public use of or injury to said Property or any part thereof is hereby assigned and shall
be paid to Beneficiary (and to any superior trust deed holder, as their interests may
appear) who may apply or release such moneys received by him in the same manner
and with the same effect as above provided for disposition of proceeds of fire or other
insurance.
(7) That by accepting payment of any sum secured hereby after its due date,
Beneficiary does not waive his right either to require prompt payment when due of all
other sums so secured or to declare default for failure so to pay.
(8) That at any time or from time to time, without liability therefore and without
notice, upon written request of Beneficiary and presentation of this Deed of Trust and
said note for endorsement, and without affecting the personal liability of any person for
payment of the indebtedness secured hereby, Trustee may: (a) reconvey any part of
said Property; (b) consent to the making of any map or plat thereof; (c) join in granting
any easement thereon; or (d) join in any extension agreement or any agreement
subordinating the lien or charge hereof.
(9) That upon written request of Beneficiary stating that all sums secured
hereby have been paid, and upon surrender of this Deed of Trust and said note to
Trustee for cancellation and retention and upon payment of its fees, Trustee shall
reconvey, without warranty, the Property then held hereunder. The recitals in such
reconveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof. The grantee in such reconveyance may be described as "the person or persons
legally entitled thereto." Five years after issuance of such full reconveyance, Trustee
may destroy said note and this Deed of Trust (unless directed in such request to retain
them).
(10) That as additional security, subject to the rights of superior trust deed
holders, as their interests may appear, Trustor hereby gives to and confers upon
Beneficiary the right, power and authority, during the continuance of these trusts, to
collect the rents, issues and profits of said Property, reserving unto Trustor the right,
prior to any default by Trustor in payment of any indebtedness secured hereby or in
performance of any agreement hereunder, to collect and retain such rents, issues and
profits as they become due and payable. Upon any such default, Beneficiary may at any
time without notice, either in person, by agent, or by a receiver to be appointed by a
court, and without regard to the adequacy of any security for the indebtedness hereby
secured, enter upon and take possession of said Property or any part thereof, in his
own name sue for or otherwise collect such rents, issues and profits, including those
past due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney's fees, upon any indebtedness secured
hereby, and in such order as Beneficiary may determine. The entering upon and taking
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possession of said Property, the collection of such rents, issues and profits and the
application thereof as aforesaid, shall not cure or waive any default or notice of default
hereunder or invalidate any act done pursuant to such notice.
(11) That upon default by Trustor in payment of any indebtedness secured
hereby, or in performance of any agreement hereunder, or default by Trustor under the
DDA or Restrictive Agreement, Beneficiary may declare all sums secured hereby
immediately due and payable by delivery to Trustee of written declaration of default and
demand for sale and of written notice of default and election to cause to be sold said
Property, which notice Trustee shall cause to be filed for record.
After the lapse of such time as may then be required by law following the
recordation of said notice of default, and notice of sale having been given as then
required by law, Trustee, without demand on Trustor, shall sell said Property at the time
and place fixed by it in said notice of sale, either as a whole or in separate parcels, and
in such order as it may determine, at public auction to the highest bidder for cash in
lawful money of the United States, payable at time of sale. Trustee may postpone sale
of all or any portion of said Property by public announcement at such time and place of
sale, and from time to time thereafter may postpone such sale by public announcement
at the time fixed by the preceding postponement. Trustee shall deliver to such highest
bidder its deed conveying the Property so sold, but without any covenant or warranty,
express or implied. The recitals in such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary
may purchase the Property at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust,
including cost of evidence of title in connection with sale, Trustee shall apply the
proceeds of sale to payment of: all sums expended under the terms hereof, not then
repaid, with accrued interest at the amount allowed by law in effect at the date hereof;
all other sums then secured hereby; and the remainder, if any, to the person or persons
legally entitled thereto.
(12) Beneficiary, or any successor in ownership of any indebtedness secured
hereby, may from time to time, by instrument in writing, substitute a successor or
successors to any Trustee named herein or acting hereunder, which instrument,
executed by the Beneficiary and duly acknowledged and recorded in the office of the
recorder of the county or counties where said Property is situated, shall be conclusive
proof of proper substitution of such successor Trustee or Trustees, who shall, without
conveyance from the Trustee predecessor, succeed to all its title estate, rights, powers
and duties. Said instrument must contain the name of the original Trustor, Trustee and
Beneficiary hereunder, the book and page where this Deed of Trust is recorded and the
name and address of the new Trustee.
(13) That this Deed of Trust applies to, inures to the benefit of, and binds all
parties hereto, their heirs, legatees, devisees, administrators, executors, successors
and assigns. The term Beneficiary shall include the owner and holder, including
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pledges, of the note secured hereby, whether or not named as Beneficiary herein. In
this Deed of Trust, whenever the context so requires, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
(14) That Trustee accepts this Trust when this Deed of Trust, duly executed
and acknowledged, is made a public record as provided by law. Trustee is not obligated
to notify any party hereto of pending sale under any Deed of Trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by
Trustee.
(15) If the Trustor shall sell, lease, transfer, assign, convey, encumber,
mortgage, hypothecate or alienate the real Property described herein, or any part
thereof, or any interest therein, or shall be divested of title or any interest therein in any
manner or way, whether voluntarily or involuntarily (except as permitted by Beneficiary
pursuant to the terms and conditions set forth in the DDA and Restrictive Agreement),
or if Trustor shall fail to make any payments due under the note secured by this Deed of
Trust, or fail to perform any other obligation under said DDA and Restrictive Agreement,
this Deed of Trust or the note secured hereby, or any other deed of trust encumbering
the subject Property, then Beneficiary shall have the right, at its option, to declare any
indebtedness or obligations secured hereby, irrespective of the maturity date specified
in any note evidencing the same, immediately due and payable.
(16) Notwithstanding anything provided herein to the contrary, the Beneficiary
agrees to look solely to the Trustor's interest in the Property encumbered hereby and
improvements thereon (or the proceeds thereof) for the satisfaction of any remedy of
the Beneficiary, and for the collection of a judgment (or other judicial process) requiring
the payment of money by the Trustor, except where such judgment results from a claim
of fraud; intentional misrepresentation; misapplication; misappropriation; or wrongful
retention of rental income; casualty insurance; condemnation proceeds; or other funds
attributable to the Property; the commission of any act of deliberate waste with respect
to the Property encumbered hereby; or the deposit of any hazardous or toxic materials
on the Property encumbered hereby; in which events there shall be no such limitation
on the Beneficiary's recourse against the Trustor.
(17) Any breach or default under the Restrictive Agreement shall be deemed a
breach of this Deed of Trust.
(18) This Deed of Trust is also intended to be and shall constitute both a
Security Agreement and a "fixture filing" as defined in the California Commercial Code,
the Trustor being the Debtor and the Beneficiary being the Secured Party. Trustor
hereby grants Beneficiary a security interest in all fixtures, and in all goods which are or
are to become fixtures on the Land, for the purpose of securing all indebtedness and
other obligations of Trustor now or hereafter secured by this Deed of Trust. The
products of such collateral are also covered hereby. This Deed of Trust, as a fixture
filing, is to be recorded in the real estate records covering the real property covered
hereby. Trustor authorizes Beneficiary to execute, deliver, file and record (as
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necessary) financing and continuation statements covering such property from time to
time in such form as Beneficiary may require to perfect and continue the perfection of
Beneficiary's security interest with respect to such property, and to reimburse
Beneficiary for any costs incurred in filing such financing statements and any
continuation statements. Trustor shall not create or allow the creation of any other
security interest in such property. Upon the occurrence of any default by Trustor
hereunder, Beneficiary shall have the rights and remedies of a secured party under the
California Commercial Code, as well as all other rights and remedies available at law or
in equity or as provided herein, all at Beneficiary's option. Trustor and Beneficiary
agree that the filing of a financing statement in the records normally having to do with
personal property shall never be construed as in any way derogating from or impairing
this declaration and the hereby stated intention of the parties hereto that everything
used in connection with the operation or occupancy of such property or the production
of income therefrom is and, at all times and for all purposes and in all proceedings, both
legal and equitable, shall be regarded as real property encumbered by this Deed of
Trust and fixture filing, irrespective of whether (a) any such item is physically attached to
the buildings and improvements, (b) serial numbers are used for the better identification
of certain equipment, or (c) any such item is referred to or reflected in any such
financing statement so filed at any time. Such mention in the financing statement is
declared to be for the protection of the Beneficiary in the event any court or judge shall
at any time hold that notice of Beneficiary's priority of interest must be filed in the
Uniform Commercial Code records to be effective against a particular class of persons,
including, but not limited to, the federal govemment and any subdivisions or entities of
the federal government.
The undersigned Trustor requests that a copy of any Notice of Default and of any
Notice of Sale hereunder be mailed to him at his address hereinbefore set forth.
HABITAT FOR HUMANITY OF THE
COACHELLA VALLEY, INC., a California non-
profit public benefit corporation
By:
Name:
Title: President
By:
Name:
Title: Secretary
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State of California )
) ss.
County of Riverside )
On , 20, before me,
, a 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. (Seal)
Signature
State of California )
) ss.
County of Riverside )
On , 20_, before me,
, a 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. (Seal)
Signature
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EXHIBIT A
LEGAL DESCRIPTION
PARCEL A
A PORTION OF LOT 99 OF PALMA VILLAGE UNIT NO. 7 IN THE CITY OF PALM
DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, FILED IN BOOK 21 OF
MAPS, PAGES 16 THROUGH 18, INCLUSIVE, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 99;
THENCE SOUTH 03°41'00" WEST ALONG THE EASTERLY LINE OF SAID LOT 99, A
DISTANCE OF 93,43 FEET TO THE NORTHEAST CORNER OF PARCEL "A" PER
THAT CERTAIN GRANT DEED TO THE CITY OF PALM DESERT RECORDED
SEPTEMBER 11, 2008 AS INSTRUMENT NO. 2008-0499627, OFFICIAL RECORDS
OF SAID COUNTY;
THENCE SOUTH 89°47'00' WEST ALONG THE NORTHERLY LINE OF SAID
PARCEL "A" PER INSTRUMENT NO. 2008-0499627, A DISTANCE OF 116.22 FEET;
THENCE LEAVING SAID NORTHERLY LINE NORTH 38°17'00" EAST ALONG A LINE
PARALLEL WITH AND 18,88 FEET SOUTHEASTERLY FROM THE WESTERLY LINE
OF SAID LOT 99, A DISTANCE OF 133.36 FEET TO A POINT ON A CURVE
CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 100.00 FEET, A RADIAL
BEARING FROM SAID POINT BEARS NORTH 27°24'00" EAST, SAID CURVE ALSO
BEING THE NORTHERLY PROPERTY LINE OF SAID LOT 99;
THENCE EASTERLY ALONG SAID CURVE AND NORTHERLY PROPERTY LINE OF
LOT 99, THROUGH A CENTRAL ANGLE OF 23°43'00" FOR AN ARC DISTANCE OF
41.39 FEET TO THE POINT OF BEGINNING,
APN: 627-092-050
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EXHIBIT H
FORM OF PROMISSORY NOTE SECURED BY DEED OF TRUST
(begins on next page)
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PROMISSORY NOTE
SECURED BY DEED OF TRUST
$34,200.00 Palm Desert, California
November 13, 2014
FOR VALUE RECEIVED, the undersigned Habitat of Humanity of the Coachella
Valley, Inc. ("Maker") hereby promises to pay to the order of the Palm Desert Housing
Authority, a public body, corporate and politic ("Holder"), at Palm Desert, California,
without deduction or offset, the sum of THIRTY FOUR THOUSAND TWO HUNDRED
Dollars ($34,200.00) (the "Note"), together with simple interest at the rate of 3°/0 per
annum. If more than one person is signing this as Maker, then the obligations of the
Maker shall be joint and several.
This Note is secured by that certain Deed of Trust, Assignment of Rents and
Security Agreement of even date herewith executed by Maker for the benefit of Holder
(the "Deed of Trust"). In addition, this Note is issued pursuant to and arises out of the
terms and conditions of a Affordable Housing Restriction and Lien Agreement dated
November 13, 2014, between Habitat of Humanity of the Coachella Valley, Inc. and
Holder ("Restrictive Agreement") and recorded concurrently with the Deed of Trust
securing this Note.
The principal amount of this Note shall be due and payable on the later of
(i) November 13, 2059, or (ii) the forty-fifth (45th) anniversary of the date on which the
Property (as defined in the Deed of Trust) is first sold to a Qualified Household (as
defined in the Restrictive Agreement) (the "Maturity Date"); provided, however, if Maker
has not breached the terms and conditions of any the Restrictive Agreement, this Note
or the Deed of Trust, then Holder agrees to forgive all principal and interest, if any, on
the Maturity Date.
Maker may prepay, without penalty or premium, any amount of the interest, if
any, or principal under this Note prior to the due date hereof. Prepayments shall be
credited first against accrued interest, if any, and the balance shall be credited to
principal.
Should default be made by the undersigned in the performance of any of the
covenants or agreements of the Maker contained in the Restrictive Agreement, this
Note, or the Deed of Trust, then, at Holder's option, all sums owing hereunder shall, at
once, become due and payable. Thereafter, interest shall accrue at the maximum legal
rate permitted to be charged by non-exempt lenders under the usury laws of the State
of California.
This Note and the Deed of Trust by which it is secured shall be governed by and
construed in accordance with the laws of the State of California.
All parties who are obligated to pay any portion of the indebtedness represented
by this Note, whether as principal, surety, guarantor or endorser, hereby waive
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presentment for payment, demand, protest, notice of protest and notice of dishonor, and
all other notices to which they might otherwise be entitled, and further waive all
defenses based on release of security, extension of time or other indulgence given in
respect to payment of this Note, to whomsoever given, and further waive all defenses,
generally except the defense of actual payment of this Note according to its tenor.
The undersigned hereby covenants and agrees to pay all costs and expenses of
collection, whether by suit or otherwise, at any time or from time to time incurred,
including without limitation attomey's fees and all costs and expenses actually incurred
in connection with the protection or realization of the property secured by the Deed of
Trust.
If Maker shall sell, lease, sublease, assign, convey, transfer, encumber,
mortgage, hypothecate or alienate the real property (the "Property") encumbered by the
Deed of Trust, or any part thereof, or any interest therein, or shall be divested of their
title in any manner or way, whether voluntarily or involuntarily, except as expressly
permitted by and in conformance with the terms and conditions contained in the Deed of
Trust and Restrictive Agreement, the indebtedness evidenced hereby, irrespective of
the maturity date expressed herein, at the option of the Holder, upon demand, shall
immediately become due and payable.
The terms of this Note shall be binding upon and inure to the benefit, as the case
or context may require, of the respective heirs, successors in interest and assigns of the
undersigned and the Holder.
This note may be subject to Section 2966 of the California Civil Code, which
provides that the Holder of this Note shall give written notice to Maker, or its successor
in interest, of prescribed information at least 60 (sixty) and not more than 150 days
before any balloon payment is due.
If a law which applies to this Note and which sets maximum loan charges is
interpreted so that the interest or other loan charges collected or to be collected in
connection with this Note exceeds the permitted limits, then: (a) any such interest or
loan charge shall be reduced by the amount necessary to reduce the interest or loan
charge to the permitted limit; and (b) any sums already collected which exceed
permitted limits will be refunded. The Holder may choose to make this refund by
reducing the principal owed under this Note or by making a direct payment to the
Maker. If a refund reduces principal, the reduction will be treated as a partial
prepayment.
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Time is of the essence with respect to each and every provision hereof. If any
provision hereof is found to be invalid or unenforceable by a court of competent
jurisdiction, the invalidity thereof shall not affect the enforceability of the remaining
provisions of this Note.
HABITAT FOR HUMANITY OF THE
COACHELLA VALLEY, INC., a California non-
profit public benefit corporation
By:
Name:
Title: President
By:
Name:
Title: Secretary
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EXHIBIT I
FORM OF NOTICE OF AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY
(begins on next page)
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Recording Requested By, and
When Recorded, Mail To:
Palm Desert Housing Authority
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attn: Housing Division
Free Recording Requested Pursuant To Government Code Section 27383
Space Above This Line for Recorder's Use
APN(s): 627-092-050
NOTICE OF AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY
Important notice to owners, purchasers, lenders, brokers, escrow and
title companies, and other persons, regarding affordable housing
restrictions on the real property described in this Notice: Restrictions are
concurrently being recorded with respect to the property described below
(referred to in this Notice as the "Property") which restrict the price and
terms on which the Property may be sold. These restrictions may limit the
sales price of the Property to an amount which is Tess than the fair market
value of the Property. These restrictions limit the income of persons and
households who are permitted to purchase the Property pursuant to
California Health and Safety Code Section 33334.3(f)(1).
This NOTICE OF AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY (the "Notice"), is made this 13th day of
November, 2014, by the Palm Desert Housing Authority ("Authority"),
whose address is 73-510 Fred Waring Drive, Palm Desert, CA and
HABITAT FOR HUMANITY OF COACHELLA VALLEY, INC., a California
non-profit, public benefit corporation ("Owner") whose address is 34500
Gateway Drive, Suite 100 , Palm Desert, California, in connection with that
certain Affordable Housing Restriction and Lien Agreement, ("Restrictive
Agreement") between Owner and the Authority,
RECITALS
A. Owner is the owner of that certain real property described in
Exhibit A, in the City of Palm Desert, State of California bearing Assessor's
Parcel Number(s) 627-092-050 (collectively, the "Property").
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B. Owner is constructing a residential dwelling unit on the
Property.
C. Owner and Authority have entered into the Restrictive
Agreement which is being recorded substantially concurrently herewith in
the official records of the County Recorder of Riverside County ("County
Recorder").
D. Capitalized terms used herein but not defined shall have the
meanings set forth as described in the Restrictive Agreement.
TERMS OF NOTICE
1. Requirement for Recorded Notice. This Notice is being
executed and recorded pursuant to California Health and Safety Code
Section 33334.3(f)(3)(B).
2. Agreement. This Notice is being recorded in the official records
of the County Recorder substantially concurrently with the recordation of
the Restrictive Agreement, which is incorporated herein by reference.
3. Recitation of Affordability Restrictions. Subject to the terms and
conditions thereof, the Restrictive Agreement, restricts the occupancy of
the Property to occupancy by a Qualified Household, being a Person,
Family or Household of Very Low or Low Income that is a First -Time
Homebuyer, at an Affordable Housing Cost (as such terms are defined in
the Restrictive Agreement) as the sole and principal residence of the
Owner (and subsequent owners) for a term which is the longer of 45 years
from the recording of this document, or the date on which the Property is
first sold to a Qualified Household.
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IN WITNESS WHEREOF, this Notice has been executed as of the
day and year first above written.
"AUTHORITY"
"OWNER:
PALM DESERT HOUSING
AUTHORITY, public body, corporate
and politic
By:
Van G. Tanner, Chairman
HABITAT FOR HUMANITY OF THE
COACHELLA VALLEY, INC., a
California non-profit public benefit
corporation
By:
Name:
Title: President
By:
Name:
Title: Secretary
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State of California
) SS.
County of Riverside
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On , 20_ before me, , a
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. (Seal)
Signature
State of California
) SS.
County of Riverside
On , 20_ before me, , a
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. (Seal)
Signature
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EXHIBIT A
That certain real Property situated in the City of Palm Desert, County of
Riverside, State of California, described as follows:
PARCEL A
A PORTION OF LOT 99 OF PALMA VILLAGE UNIT NO. 7 IN THE CITY OF PALM
DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, FILED IN BOOK 21 OF
MAPS, PAGES 16 THROUGH 18, INCLUSIVE, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 99;
THENCE SOUTH 03°41'00" WEST ALONG THE EASTERLY LINE OF SAID LOT 99, A
DISTANCE OF 93,43 FEET TO THE NORTHEAST CORNER OF PARCEL "A" PER
THAT CERTAIN GRANT DEED TO THE CITY OF PALM DESERT RECORDED
SEPTEMBER 11, 2008 AS INSTRUMENT NO. 2008-0499627, OFFICIAL RECORDS
OF SAID COUNTY;
THENCE SOUTH 89°47'00' WEST ALONG THE NORTHERLY LINE OF SAID
PARCEL "A" PER INSTRUMENT NO. 2008-0499627, A DISTANCE OF 116.22 FEET;
THENCE LEAVING SAID NORTHERLY LINE NORTH 38°17'00" EAST ALONG A LINE
PARALLEL WITH AND 18,88 FEET SOUTHEASTERLY FROM THE WESTERLY LINE
OF SAID LOT 99, A DISTANCE OF 133.36 FEET TO A POINT ON A CURVE
CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 100.00 FEET, A RADIAL
BEARING FROM SAID POINT BEARS NORTH 27°24'00" EAST, SAID CURVE ALSO
BEING THE NORTHERLY PROPERTY LINE OF SAID LOT 99;
THENCE EASTERLY ALONG SAID CURVE AND NORTHERLY PROPERTY LINE OF
LOT 99, THROUGH A CENTRAL ANGLE OF 23°43'00" FOR AN ARC DISTANCE OF
41.39 FEET TO THE POINT OF BEGINNING,
APN: 627-092-050
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EXHIBIT J
PROPERTY DOCUMENTS
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EXHIBIT K
FORM OF CERTIFICATE OF COMPLETION
(begins on next page)
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RECORDING REQUESTED BY:
AND WHEN RECORDED RETURN TO:
Palm Desert Housing Authority
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn: Housing Division
[The undersigned declares that this Certificate of Completion is exempt from Recording Fees pursuant to
California Government Code Section 27383]
CERTIFICATE OF COMPLETION
This Certificate of Completion is given this day of , 20_, with reference
to the following matters:
A. The PALM DESERT HOUSING AUTHORITY, a public body corporate and
politic (the "Authority") and HABITAT FOR HUMANITY OF THE COACHELLA VALLEY,
INC., a California non-profit public benefit corporation (the "Developer") entered into a
certain Disposition and Development Agreement dated as of November 13, 2104 (the
"Agreement"), which Agreement provides, in Section 3.15 thereof, that the Authority shall
furnish the Developer with a Certificate of Completion upon satisfactory completion of the
Improvements (as described in the Agreement) on the real property described in Exhibit A
attached hereto and incorporated herein by this reference (the "Property"), which certificate
shall be in such form as to permit it to be recorded in the Recorder's Office of Riverside
County; and
B. The Certificate of Completion shall be conclusive determination of satisfactory
completion of the construction of Improvements required with respect to the Property; and
C. The Authority has determined that the construction of the Improvements has
been satisfactorily performed; and
NOW, THEREFORE, the party to this instrument hereby provides as follows:
1. As provided in the Agreement, the Authority does hereby certify that
the construction of the Improvements on the Property has been satisfactorily performed and
completed as required by the Agreement.
2. This Certificate shall not constitute evidence of compliance with or
satisfaction of any obligation of the Developer to any holder of a mortgage, or deed of trust
or any insurer of a mortgage, or deed of trust securing money loaned to finance the
improvements or any part thereof, nor does it constitute evidence of payment of any
promissory note or performance of any deed of trust provided by the Developer to the
Authority under the Agreement or otherwise.
IN WITNESS WHEREOF, the Authority has entered into this Certificate of
Completion as of the day and year first above written.
ATTEST:
Rachelle D. Klassen, Secretary
PALM DESERT HOUSING AUTHORITY, a
public body, corporate and politic
By:
, Chairman
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State of California )
) SS.
County of Riverside )
On , 20_ before me, , a 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. (Seal)
Signature
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL A
A PORTION OF LOT 99 OF PALMA VILLAGE UNIT NO. 7 IN THE CITY OF PALM
DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, FILED IN BOOK 21 OF
MAPS, PAGES 16 THROUGH 18, INCLUSIVE, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 99;
THENCE SOUTH 03°41'00" WEST ALONG THE EASTERLY LINE OF SAID LOT 99, A
DISTANCE OF 93,43 FEET TO THE NORTHEAST CORNER OF PARCEL "A" PER
THAT CERTAIN GRANT DEED TO THE CITY OF PALM DESERT RECORDED
SEPTEMBER 11, 2008 AS INSTRUMENT NO. 2008-0499627, OFFICIAL RECORDS
OF SAID COUNTY;
THENCE SOUTH 89°47'00' WEST ALONG THE NORTHERLY LINE OF SAID
PARCEL "A" PER INSTRUMENT NO. 2008-0499627, A DISTANCE OF 116.22 FEET;
THENCE LEAVING SAID NORTHERLY LINE NORTH 38°17'00" EAST ALONG A LINE
PARALLEL WITH AND 18,88 FEET SOUTHEASTERLY FROM THE WESTERLY LINE
OF SAID LOT 99, A DISTANCE OF 133.36 FEET TO A POINT ON A CURVE
CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 100.00 FEET, A RADIAL
BEARING FROM SAID POINT BEARS NORTH 27°24'00" EAST, SAID CURVE ALSO
BEING THE NORTHERLY PROPERTY LINE OF SAID LOT 99;
THENCE EASTERLY ALONG SAID CURVE AND NORTHERLY PROPERTY LINE OF
LOT 99, THROUGH A CENTRAL ANGLE OF 23°43'00" FOR AN ARC DISTANCE OF
41.39 FEET TO THE POINT OF BEGINNING,
APN: 627-092-050
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4,414/4T, Habitat for Humanity
of the Coachella Valley, inc.
May 13, 2014
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
To Whom It May Concern,
Marty Hartley
Executive Director
Building houses, building hope
In 2010, Habitat for Humanity of the Coachella Valley "HFHCV" was presented with an
opportunity to build two net -zero single family demonstration residences in partnership with
the City of Palm Desert. According to the Executive Director, Fred Bell, at that time, HFHCV was
not able to deliver net -zero, LEED Platinum homes and make it affordable for low-income
families at that time. Since that time, there have been numerous changes in the Executive
Director position. But, all the while, the Board of HFHCV continued to work toward a solution to
building with the City of Palm Desert. So, when I, Marty Hartley, was appointed Executive
Director, I was asked by the Board to engage in reviewing the Palm Desert build.
Therefore, I am writing this letter to confirm that HFHCV would like to continue working with
the City of Palm Desert using the property allocated to us. We wish to review and revise the
scope of the job to make it compliant to a Veteran's Build. HFHCV will attempt in all ways to
build an energy efficient home, but we will not be able to reach the full potential of the
platinum standards put forth in the original scope. At this time, we are working with Holt
Architecture and the Palm Desert Housing Authority to create an acceptable scope of work for
all parties involved. We look forward to completing this project with the City of Palm Desert to
provide decent, affordable housing to our Veteran's in need.
Sincerely,
--..,--• /
Marty Hartley _
Executive Director
(Office) 34500 Gateway Drive, Suite 100 Palm Desert. CA 92211
(Tel) (760) 969-6917 (Fax) (760) 770-3781 (Email) executivedirector@cvhfi.org (Web) www habitatcv.org
Date:
10/2014
01.
EYLL
ALESSANDRO A ,
fAtiy1'
I;(.)
San Benito Lots 98 & 99
I Parcels
VICINITY MAP
PALM DESERT HOUSING AUTHORITY
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm
Desert Housing Authority (the "Authority") pursuant to Health and Safety Code Sections
33433(c) and 33431 concerning the proposed conveyance of two single-family
residential lots owned by the Authority, located on San Benito Circle in the City of Palm
Desert, California and described as APN 627-092-050 and APN 627-092-054, by the
Authority, to Habitat for Humanity of the Coachella Valley, Inc. ("Habitat") for the
purpose of constructing two single-family dwellings thereon to be made available for
sale to two qualified households of low-income at an affordable housing cost, one of
which will be designed for a disabled veteran and the approval of a Disposition and
Development Agreement between the Authority and Habitat in connection with such
conveyance.
Said PUBLIC HEARING will be held on Thursday, November 13, 2014, before
the Authority at 4:00 p.m. in the Council Chamber in the Palm Desert City Hall, 73-510
Fred Waring Drive, Palm Desert, California, at which time and place all interested
persons are invited to attend and be heard. Written comments concerning all items
covered by this public hearing notice shall be accepted up to the date of the hearing.
Information pertaining to the proposed conveyance is available for review in the
Authority office at the above address between the hours of 8:00 a.m. and 5:00 p.m.
Monday through Friday (as of the date first published). If you challenge the proposed
actions in court, you may be limited to raising only those issues you or someone else
raised at the public hearing described in this notice, or in written correspondence
delivered to the Authority at, or prior to, the public hearing.
In compliance with the Americans with Disabilities Act, if you need special
assistance to participate in a Palm Desert City Council or Authority meeting or other
services offered by the City of Palm Desert, please contact the City Clerk's Office at
(760) 346-0611. Notification at least 48 hours prior to the meeting or time when
services are needed will assist the City and Authority staff in assuring that reasonable
arrangements can be made to provide accessibility to the meeting or service.
Signed this day, the 22nd day of October, 2014.
RACHELLE D KLASSE 1, CITY CLER
SECRETARY TO THE HOUSING AUTHORITY
P. Acm.riadni...i> cnn.n<nki cnAl ur rincawu 111aenie _ ucu. APNk AT/A..41 anti A7,10,11s11- c.., awm,. (1 t
PA-nnmwa9417R 2 dn,
Sanchez, Gloria
From: Moeller, Charlene <CMOELLER@palmspri.gannett.com>
Sent: Wednesday, October 22, 2014 2:03 PM
To: Sanchez, Gloria
Subject: RE: Legal Notice - PH 11/13/2014 - APNs 627-092-050 and 627-092-054 - San Benito
Hi Gloria
Ad received and will publish on date(s) requested.
Charlene Moeller I Media Sales Legal Notice Coordinator
The Desert Sun Media Group
750 N. Gene Autry Trail, Palm Springs, CA 92262
t 760.778.4578 I f 760.778.4528
lenals anthedesertsun.com / dpwlegals@thedesertsun.com
The Coachella Valley's #1 Source in News & Advertising!
www.DesertSun.com ! twitter @MyDesert I facebook thedesertsun
This email and any files transmitted with it are confidential and intended for the individual to whom they
are addressed. If you have received this email in error, please notify the sender and delete the message
from your system
From: gsanchez@citvofoalmdesert.ore fmailto:esanchez@citvofoaimdesert.org]
Sent: Wednesday, October 22, 2014 1:22 PM
To: Email, TDS-Legals
Cc: imoore@citvofoaimdesert.org; vtaoia@citvofpaimdesert.ore; pleon@citvofnalmdesert.org
Subject: Legal Notice - PH 11/13/2014 - APNs 627-092-050 and 627-092-054 - San Benito
Good afternoon, Charlene!!
PLEASE PUBLISH THE FOLLOWING:
NOTICE OF PUBLIC HEARING
Notice of Public Hearing Concerning the Proposed Conveyance of Two Single-family Residential Lots
Owned by the Authority, Located on San Benito Circle in the City of Palm Desert, California and
Described as APNs 627-092-050 and 627-092-054
TWICE IN THE DESERT SUN
Friday, October 31, 2014
Friday, November 7, 2014
If you have any questions or require additional information, please contact me.
Have a wonderful rest of the day, Charlene!
M. GLarizt. ScuAt..erz
1