HomeMy WebLinkAboutHABITAT FOR HUMANITY OF ORANGE COUNTY (4)N
RECORDING REQUESTED BY:
City of Santa Ana
Clerk of the Council
20 Civic Center Plaza (M-30)
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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P.O. Box 1988
Santa Ana, California 92702
Attention: City Clerk
Return FULLY EXECUTED Free Recordingpursit tI
A Government Code 27383
Copy to City Clerk, M-30 lip
A-2024-098
REGULATORY AGREEMENT n5N
IMPOSING AFFORDABLE HOUSING COVENANTS AND RESTRICTIONS
(DENSITY BONUS)
(1921 W. Washington, Santa Ana, California; APN: 405-101-37)
This REGULATORY AGREEMENT IMPOSING AFFORDABLE HOUSING
COVENANTS AND RESTRICTIONS (DENSITY BONUS) ("Regulatory Agreement"), made
and entered into this 16"' day of July, 2024 ("Effective Date"), by and between the City of Santa
Ana, a charter city and municipal corporation of the State of California ("City"), and Habitat for
Humanity of Orange County, a California nonprofit religious corporation ("Developer"). City and
Developer are sometimes referred to collectively as the "Parties" and individually as a "Party."
RECITALS
A. Developer is the owner of that certain property located within the City of Santa
Ana, County of Orange, State of California, commonly known as 1921 W.
Washington Avenue, Santa Ana, California, (APN 405-101-37), with the legal
description set forth in Exhibit A attached hereto and incorporated herein by this
reference ("Property").
B. City and Developer have entered into a Conditional Grant Agreement, pursuant to
which, City agreed to provide a grant (the "Inclusionary Grant") in an amount up
to Two Million Two Hundred Thousand Dollars ($2,200,000) to Developer for a
residential homeownership project that involves construction of six (6) affordable
housing units restricted for sale to low income households, which will be provided
within three (3) duplex buildings, and include related amenities, including but not
limited to: parking, landscaping, lighting, signage, and other amenities, and all
other on -site and off -site improvements required for operation of the Property (the
"Project").
C. As a condition of receiving the Inclusionary Grant, Developer agrees that this
Regulatory Agreement shall be recorded against the Property prior to disbursement
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of any portion of the Inclusionary Grant and that the Property and the Project shall
be subject to the covenants and restrictions set forth herein.
D. In addition, in connection with the Project, Developer seeks a density bonus under
California Government Code § 65915, et seq. ("State Density Bonus Law") and
Santa Ana Municipal Code sections 41-1600, et seq. ("City Density Bonus
Ordinance"), Based on the Property size of 0.37 acres, and the City's allowable
density for the Property of seven (7) dwelling units per acre, without the density
bonus, the existing density for the Property would allow only two (2) dwelling units
on the Property (rounded down from 2.59). Thus, the City also enters into this
Agreement to fulfill requirements of the State Density Bonus Law and City Density
Bonus Ordinance.
E. In light of the purpose of the State Density Bonus Law and City Density Bonus
Ordinance, City has determined to approve Developer's application for four (4)
concessions/incentives and one (1) waiver.
F. Based upon the foregoing, on the terms and conditions set forth below, this
Agreement, and the exhibits attached hereto and incorporated herein by reference,
are intended to (1) implement and fulfill obligations set forth in the Conditional
Grant Agreement, and (2) implement the Project's requirement to provide
affordable housing units in exchange for receiving the density bonus, concession
and waivers set forth herein.
NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein
by this reference, and of the mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS AND EXHIBITS
1.1 Definitions. In addition to the terms that may be defined elsewhere in this
Agreement, the following terms when used in this Agreement shall be defined as follows:
1.1.1 "Adjusted for family size appropriate to the unit" shall have the
meaning set forth by California Health and Safety Code Section 50052.5(h).
1.1.2 "Administrative Procedures Manual" shall mean the City's
Administrative Procedures Manual: Ownership Housing Development, setting forth rules and
regulations for the City's homeownership program.
1.1.3 "Affordable Housing Cost" means the total housing costs paid by a
qualifying Low Income Household in accordance with California Health and Safety Code Section
50052.5.
1.1.4 "Affordable Housing Resale Restrictions" means the restrictions
imposed on each Affordable Unit that restrict sales to qualified Eligible Households pursuant to a
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local preference for families who live or work in the City of Santa Ana at an Affordable Sales
Price as set forth in Section 4.6.3, in accordance with Homebuyer Loan Agreement.
1.1.5 "Affordable Sales Price" means the maximum sales price that can be
charged for an Affordable Unit as set forth in Section 3.3.2.
1.1,6 "Affordable Unit(s)" means the six (6) individual dwelling units, which
shall be constructed within three (3) duplex buildings, and each restricted for occupancy to Low
Income Households.
1.1.7 "Area Median Income" or "AMI" shall mean the area median income
published by HCD in accordance with California Health and Safety Code § 50093.
1.1.8 "Benchmark Down Payment" is a component of the Affordable Sales
Price calculations. For the purposes of this Agreement, the Benchmark Down Payment is set at
5% of the total Affordable Sales Price. The Benchmark Down Payment is used solely as a
component for determining the Affordable Sales Price for an Affordable Unit. It does not represent
a cap on the down payment amount that can be contributed by a Homebuyer.
1.1.9 "Certificate of Occupancy" shall mean a certificate of occupancy issued
by the City after completion of construction and a dwelling unit has been certified by the City has
available for occupancy.
1.1.10 "City" means the City of Santa Ana, California
1.1.11 "City Council" means the City Council of the City of Santa Ana.
1.1.12 "City Attorney" means the City Attorney for the City of Santa Ana.
1.1.13 "City Manager" means the City Manager for the City of Santa Ana.
1.1.14 "City's Planning Commission" means the Planning Commission for the
City of Santa Ana.
1.1.15 "City Deed of Trust" means a deed of trust, in the form attached hereto as
Exhibit C, executed by Homebuyer in favor of the City that secures the performance of the
Affordable Housing Resale Restrictions, the City and Homebuyer Loan Agreement, and the City
Promissory Note, and which is recorded against each Affordable Unit as required under this
Agreement.
1.1.16 "City Promissory Note" shall mean a promissory note, in the form
attached hereto as Exhibit D, executed by Homebuyer evidencing an agreement to pay to City the
amount owed pursuant to the City and Homebuyer Loan Agreement.
1.1.17 "Density Bonus Application" shall mean the Density Bonus Application
No. 2024-01 for the Project.
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1.1.18 "Developer" means Habitat for Humanity of Orange County, a California
nonprofit religious corporation, and its permitted successors and assigns to all or any part of the
Property, Project or this Agreement.
1.1.19 "Effective Date" means the date the Developer and the City shall record or
cause to be recorded in the Official Records for Orange County, California, an executed original
of this Agreement, pursuant to section 4.1 herein.
1.1.20 "Eligible Household" means a Household whose income does not exceed
the qualifying limit for a Low Income Household, as defined herein.
1.1.21 "Gross Household Income" means all income from whatever source from
all adult Household members, which is anticipated to be received during the 12-month period
following the date of the determination of Gross Household Income. The applicable sources of
income are defined in California Code of Regulations Title 25 Housing and Community
Development Section 6914. The definition includes the following specific requirements:
(a) Except as provided in subdivision (b), all payments from all sources
received by the head of Household (even if temporarily absent) and each additional member of the
Household who is not a minor shall be included in the annual income of a Household. Gross
Household Income shall include, but not be limited to:
(i) The gross amount, before any payroll deductions, of wages
and salaries, overtime pay, commissions, fees, tips and bonuses;
(ii) The net income from operation of a business or profession
or from rental or real or personal property (for this purpose, expenditures for business expansion
or amortization of capital indebtedness shall not be deducted to determine the net income from a
business);
(iii) Interest and dividends;
(iv) The frill amount of periodic payments received from social
security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and
other similar types of periodic receipts (but see subdivision (2)(c));
(v) Payments in lieu of earnings, such as unemployment and
disability compensation, worker's compensation and severance pay;
(vi) Public Assistance. If the public assistance payment includes
an amount specifically designated for shelter and utilities which is subject to adjustment by the
public assistance agency in accordance with the actual cost of shelter and utilities, the amount of
public assistance income to be included as income shall consist of:
(1) The amount of the allowance or grant exclusive of
the amount specifically designated for shelter and utilities, plus
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(2) The maximum amount which the public assistance
agency could in fact allow for the Household for shelter and utilities.
(vii) Periodic and determinable allowances such as alimony and
child support payments, and regular contributions or gifts received from persons not residing in
the dwelling;
(viii) All regular pay, special pay and allowances of a member of
the Armed Forces (whether or not living in the dwelling) who is head of the Household or spouse
or domestic partner (but see subdivision (b)(v));
(ix) Where a Household has net assets in excess of $5,000,
income shall include the actual amount of income, if any, derived from all of the net Household
assets or 10 percent of the value of all such assets, whichever is greater. For purposes of this
section, net Household assets means value of equity in real property other than the Household's
full-time residence, savings, stocks, bonds, and other forms of capital investment. The value of
necessary items such as furniture and automobiles shall be excluded.
(b) The following items shall not be considered as income:
(i) Casual, sporadic or irregular gifts;
(ii) Amounts which are specifically for or in reimbursement of
the cost of medical expenses;
(iii) Lump -sum additions to Household assets, such as
inheritances, insurance payments (including payments under health and accident insurance and
worker's compensation), capital gains and settlement for personal or property losses;
(iv) Amounts of educational scholarships paid directly to the
student or to the educational institution, and amounts paid by the government to a veteran for use
in meeting the costs of tuition, fees, books and equipment. Any amounts of such scholarships, or
payments to veterans not used for the above purposes of which are available for subsistence are
to be included in income;
(v) The special pay to a serviceman head of a Household away
from home and exposed to hostile fire;
local relocation law;
(vi) Relocation payments made pursuant to federal, state, or
(vii) Foster child care payments;
(viii) The value of coupon allotments for the purchase of food
pursuant to the Food Stamp Act of 1964 which is in excess of the amount actually charged the
eligible Household;
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(ix) Payments received pursuant to participation in the
following volunteer programs under the ACTION Agency:
(1) National Volunteer Antipoverty Programs which
include VISTA, Service Learning Programs and Special Volunteer Programs.
(2) National Older American Volunteer Programs for
persons aged 60 and over which include Retired Senior Volunteer Programs, Foster Grandparent
Program, Older American Community Services Program, and National Volunteer Program to
Assist Small Business Experience, Service Corps of Retired Executive (SCORE) and Active
Corps of Executives (ACE).
1.1.22 "HCD" means the California Department of Housing and Community
Development.
1.1.23 "Homebuyer" means an Eligible Household that has an executed
agreement to purchase an Affordable Unit.
1.1.24 "Homebuyer Loan Agreement" means the loan agreement entered into
between Homebuyer and City prior to transfer of an Affordable Unit, as referenced in Section 3.5
and 4.6 of this Agreement.
1.1.25 "Household" all the persons who will occupy the Affordable Unit as their
primary residence. The size of a prospective Household must be compatible with the size of the
Affordable Unit to be purchased. The minimum number of occupants is three (3). The maximum
number of occupants is eight (8). A child who is subject to a legally -binding shared -custody
agreement, in which the child resides with the Household at least 50% of the time, is counted as a
member of the Household. For the purpose of calculating the Household income and not the
number of occupants, excluded from the definition of Household are live-in caregivers/caretakers,
foster children, unborn children and children being pursued for legal custody or adoption that are
not currently living with the Household.
1.1.26 "Housing Cost" means and includes all of the following costs associated
with ownership of an Inclusionary Unit as defined in Title 25 of the California Code of Regulations
Section 6920:
improvements;
(a) Principal and interest on a mortgage loan at the defined interest rate;
(b) Property tax and assessments;
(c) Fire and casualty insurance covering replacement value of property
(d) Property maintenance and repairs;
(e) A reasonable utility allowance, as determined by the City; and
(f) Homeowner Association assessments and dues.
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1.1.27 "Low Income Household" means a Household whose income does not
exceed eighty percent (80%) of the area median income for the Orange County, California PMSA,
adjusted for actual household size, as published by HCD, and in accordance with the definition of
"low-income household" set forth in SAMC § 41-1901 and California Health and Safety Code §
50079.5.
1.1.28 "Notice of Affordability Restrictions" means the notice of affordability
restrictions to prospective buyers, which shall have a term of at least forty-five (45) years, in the
form attached hereto as Exhibit E.
1.1.29 "Program Director" has the day-to-day authority for making
determinations related to the Administrative Procedures Manual. The Program Director will be
appointed by the Executive Director for the City's Community Development Agency.
1.1.30 "Project" means that certain affordable residential development as more
particularly described in Recital B and Section 2 of this Agreement.
1.1.31 "Property" means that certain real property more particularly described in
the legal description in Exhibit A and improvements thereon, including each Affordable Unit.
1.1.32 "Regulatory Agreement" means this Affordable Housing Agreement and
Declaration of Covenants and Restrictions.
1.1.33 "State Density Bonus Law" means Government Code sections 65915, et
seq., as they exist on the Effective Date.
1.1.34 "Supportable Mortgage" means the mortgage amount that can be
supported by a Low Income Household based on the Affordable Housing Cost calculations. The
mortgage calculation is based on the prevailing market interest rate for a 30-year fully amortizing
mortgage with a fixed interest rate. The Supportable Mortgage shall be determined in accordance
with the City's Administrative Procedures Manual, provided that it should be determined for a
Low Income Household consistent with the requirements of this Agreement and State Density
Bonus Law.
1.1.35 "Unit" means a residential dwelling unit within the Project to be
constructed or caused to be constructed by Developer pursuant to this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement:
1.2.1
Exhibit A:
1.2.2
Exhibit B:
1.2.3
Exhibit C:
1.2.4
Exhibit D:
1.2.5 Exhibit E:
1.2.6 Exhibit F:
1.2.7 Exhibit G:
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Legal Description of the Property
Affordable Housing Resale Restrictions
City Deed of Trust
City Promissory Note
Notice of Affordability Restrictions
Income Verification Form
Certification of Continued Occupancy
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2. DEVELOPMENT OF THE PROPERTY
2.1 Project. Developer shall develop, operate, and maintain, or cause the development,
operation and maintenance of, the Property, to provide the Affordable Units required by this
Agreement.
2.2 Density Bonus. Developer understands and agrees that, for purposes of calculating
the density bonus in accordance with the State Density Bonus Law, the base density for the
Property is three (3) dwelling units (fractional units are rounded up) and therefore the Project will
receive a density bonus to develop a total of six (6) dwelling units that will be restricted as
Affordable Units under this Agreement. Developer shall not construct or develop, or otherwise
claim a right to construct or develop any additional dwelling units on the Property. Developer
agrees that the Project is eligible for a density bonus based upon compliance with the requirement
to develop the Project as a common interest development, in accordance with California
Government Code § 65915(i).
2.3 Development Concessions, Incentives, and Waivers. As set forth in the City
entitlements, Developer petitioned for and is hereby granted the following concessions, incentives,
and waivers as part of the approval of Density Bonus Application:
2.3.1 Concession. In accordance with Government Code Section 65915(d)(1),
Developer is granted the following concession(s):
(a) The setback at the north end of the parcel shall be reduced from ten
feet (10') to six feet (6'), and the setback at the west side of the parcel shall be reduced to seven
feet (7') (provided that the Project provides a minimum of 1,200 square feet of open space per
unit).
(b) The building separation shall be reduced from fifteen feet (15') to
nine to ten feet (9-10').
(c) The open space requirement for a private balcony for unit five, as
identified on the Project entitlements, shall be reduced from one hundred (100) square feet to
ninety one (91) square feet, provided that the unit is also provided with four hundred twelve (4 12)
square feet of private yard space.
(d) The private yard fencing encroachment into the front -yard area for
unit one, as identified on the Project entitlements, shall be allowed to exceed the height restriction
of three feet (3') but shall not exceed six feet (6'), as necessary to allow for the screening of the
air conditioner.
2.3.2 Waivers. In accordance with Government Code Section 65915(e)(1),
Developer is granted the following waiver(s): The drive aisle area by the trash enclosures shall be
reduced by eight inches (8") to a total of eighteen feet ten inches (18' 10") to accommodate PWA
trash pickup requirements.
2.4 Parking Requirements. Onsite parking shall be provided in compliance with
Government Code Sections 65915 (p)(1)(A) and 65915 (p)(1)(B). All units will have a private
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two -car garage with direct access to each unit (residents shall be required to parr vehicles in the
garages and not use garages only for storage). The Project must also provide short-term
overflow/guest parking spots as follows: two (2) standards parking spots and one (1) accessible
parking spot.
2.5 No Further Concessions, Incentives, or Waivers. Developer acknowledges and
agrees that the concessions, incentives, and waivers set forth in section 2.3, and the parking
requirements set forth in section 2.4, above fully satisfies any duty City may have under the City
Density Bonus Ordinance, the Density Bonus Law, or any other law or regulation to provide any
density bonus incentive or to waive any building, zoning, or other requirement in connection with
a density bonus. By this Agreement, Developer releases any and all claims Developer may have
against City in any way relating to or arising from City's obligation to waive requirements of or
provide development incentives pursuant to the City Density Bonus Ordinance and the Density
Bonus Law applicable to the Project.
2.6 Affordable Units. The Project, for purposes of this Agreement, shall have no less
than six (6) Affordable Units, restricted for homeownership opportunities to Low Income
Households, pursuant to the terms and conditions of this Agreement. Each Affordable Unit shall
be consistent with all City approvals, and meet the following requirements:
2.6J Each unit shall have three (3) bedrooms and a minimum of two (2)
bathrooms;
2.6.2 Each unit shall have a private two -car garage with direct access to the
interior living space;
2.6.3 The interior living space of each unit shall range from a minimum of 1,100
square feet to 1,430 square feet;
2.6.4 Each unit shall have a private yard; and,
2.6.5 One unit shall be constructed as an accessible unit with mobility and
communication features in compliance with the California Building Code.
2.7 Permits and Processin • Compliance with Laws. Developer, at its sole cost and
expense, or as otherwise set forth in a separate written agreement, shall secure or cause to be
secured any and all permits that may be required for development of the Project by City or any
other federal, state, or local governmental entity having or claiming jurisdiction over the Property
or Project. Upon securing any and all permits, and all necessary financing and property interests,
Developer shall carry out and perform the development, operation, and maintenance of the Project
or cause the performance of the development, operation, and maintenance of the Project, in
conformity with all applicable federal, state, and local laws and regulations, and all conditions of
approval issued by the City Council and City's Planning Commission for the Project. Any changes
to the Project shall be reviewed by the City to determine compliance with this Agreement. If any
changes to the Project shall materially alter the ability of Developer to comply with any terms of
this Agreement in City's sole determination, then City and Developer shall meet and confer to
address amendments and revisions to this Agreement as necessary.
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2.8 Common Interest Development. The Project shall be operated as a "common
interest development" as defined in California Civil Code § 4100 and operated in accordance with
all state laws regarding common interest developments.
2.9 Mechanic's Lions; Indemnification. Developer shall take all actions reasonably
necessary to remove any future mechanic's liens or other similar liens (including design
professional liens) against the Property or Project, or any part thereof, by reason of work, labor,
services, or materials supplied or claimed to have been supplied to Developer or caused by, at the
direction of, or on behalf of Developer. Prior to the recording of this Agreement (or memorandum
thereof) pursuant to Section 4.1 below, Developer shall provide evidence from the Title Company
of any new recordings against the Property or Project. City hereby reserves all rights to post notices
of non -responsibility and any other notices as may be appropriate upon a filing of a mechanic's
lien. In addition to any other indemnity provided by Developer under this Agreement, Developer
shall indemnify, defend (with counsel of City's choosing and the consent of Developer, which shall
not be unreasonably withheld, conditioned or delayed and which may be joint defense counsel
upon City's and Developer's consent), and hold harmless City and all of its officials, officers,
employees, representatives, volunteers and agents from any and all alleged or actual claims, causes
of action, liabilities, and damages from any third party by reason of a mechanic's lien or work,
labor, services, or materials supplied or claimed to have been supplied to Developer or caused by,
at the direction of, or on behalf of Developer.
3. AFFORDABILITY
3.1 Total Affordability Term. Each Affordable Unit shall be restricted for sale to an
Eligible Household for a total period of no less than forty-five (45) years ("Total Affordability
Term"). The Total Affordability Term for an Affordable Unit shall commence on the date that the
Affordable Unit receives all required occupancy permits from the City and a Certificate of
Occupancy.
3.2 Memorializing Commencement of Total Affordability Term. Developer shall keep
or cause to be kept detailed records of the commencement date of the Total Affordability Term for
each Affordable Unit. City shall have the right to review and verify said records without a fee from
City to Developer to ensure that the commencement date specified by Developer for an Affordable
Unit coincides with the date that the initial Affordable Unit received all permits from City required
for occupancy of the Unit. In the event that a conflict exists between the date specified by
Developer for the commencement of the Total Affordability Term for an Affordable Unit and the
date specified by City's issuance of all required permits for occupancy of the Unit, the date
specified by City's issuance of all required permits for occupancy of the Unit shall control.
3.3 Affordability Covenants and Restrictions.
3.3.1 Affordable Homeownership. Developer covenants that, during the Total
Affordability Term, each Affordable Unit shall be sold to, or held vacant for sale to, an Eligible
Household for an Affordable Sales Price.
3.3.2 Affordable Sales Price. The Affordable Sales Price is equal to the sum of
the Supportable Mortgage plus, if applicable, the Benchmark Down Payment. Prior to the sale of
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any Affordable Unit, Developer shall provide the City with at least thirty (30) days' written notice
of the determined amount, and the City shall have ten (10) days to approve or disapprove of the
proposed Affordable Sales Price. The Affordable Sales Price for Affordable Units shall be
adjusted quarterly until all Affordable Units are sold and, thereafter, determined in connection with
each re -sale, as applicable.
3.4 Notice to City. Prior to entering into an agreement for the transfer of an Affordable
Unit, Developer shall provide at least thirty (30) days written notice to the City, along with a
proposed written agreement setting forth the terms of the sale, including the proposed Affordable
Sales Price. For the initial sale of an Affordable Unit from Developer to a Homebuyer, Developer
shall also provide a proposed equity share promissory note and a deed of trust.
3.5 Homebuyer Documents. The sale of each Affordable Unit is subject to satisfaction
of the following conditions:
3.5.1 City and Homebuyer shall enter into the Homebuyer Loan Agreement,
which memorializes a loan from the City to Homebuyer in the amount equal to the difference
between (a) the Affordable Sales Price for the Affordable Unit and (b) the fair market value of the
Affordable Unit without any restrictions on affordability or resale price as set forth herein, which
amount shall be the amount of the City Promissory Note, The Homebuyer Loan Agreement shall
also set forth the terms of the Affordable Housing Resale Restrictions, the City Deed of Trust, and
the Notice of Affordability Restrictions (collectively, the "City Loan Documents"). The Parties
agree and understand that the Homebuyer Loan Agreement does not require the payment of funds
from City to Homebuyer, but rather evidences a promise to pay the amount of the City Promissory
Note in the event of a breach of the obligations, covenants, and restrictions set forth in the City
Loan Documents.
3.5.2 Each Homebuyer shall execute the Affordable Housing Resale Restrictions,
the City Deed of Trust, and the Notice of Affordability Restrictions, each of which shall be
recorded against the Affordable Unit.
3.5.3 Each Homebuyer of an Affordable Unit shall execute the City Promissory
Note, which shall be secured by the City Deed of Trust.
3.6 Equity Sharing Agreement. The Affordable Housing Resale Restrictions for each
initial sale from Developer to a Homebuyer shall include an equity sharing agreement in
accordance with California Government Code § 65915(c)(2)(A). The City and Developer agree
that Developer shall recapture the equity share pursuant to Government Code § 65915(c)(2)(C).
the amount of the equity share shall be determined in accordance with this Section 3.6, and shall
be evidenced by a promissory note secured by a deed of trust in favor of Developer.
3.6.1 Except in the event of a conflict with requirements of another public funding
source, the following provisions of the equity sharing agreement shall be enforced when the initial
Homebuyer sells an Affordable Unit:
(i) The Homebuyer selling the Affordable Unit shall retain the
value of any improvements and the down payment that were paid for by the seller, and the
seller's proportionate share of appreciation.
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(ii) Developer shall recapture its "initial subsidy," in
accordance with Government Code Section 65915(c)(2)(C)(v), in an amount equal to the fair
market value of the Affordable Unit at the time of the initial sale from Developer to the
Homebuyer, minus the Affordable Sales Price, plus any down payment assistance or mortgage
assistance.
(iii) Developer shall recapture its "proportionate share of
appreciation," in accordance with Government Code Section 65915(c)(2)(C)(v), in an amount
equal to: (A) the ratio of the City's initial subsidy to the fair market value of the home at the time
of the initial sale multiplied by (B) the fair market value of the Affordable Unit at the time of the
sale from the Homebuyer to a new Eligible Household.
(iv) The proceeds of the sale of an Affordable Unit from a
Homebuyer to a new Eligible Household shall be disbursed in the following priority: first, to
satisfy a first deed of trust from a primary lender, as approved by City at the time of the initial
sale, or subsequent approval in the event of a refinance event; second, to the Developer for the
equity share determined in accordance with this Section 3.6.1; and, third, the remainder to the
selling Homebuyer.
(v) Developer shall use one hundred percent (100%) of the
proceeds to promote homeownership for lower income households as defined by Section
50079.5 of the Health and Safety Code within the jurisdiction of the City. By way of example,
and without approval from the City or limiting any the eligible uses, these uses may include:
financing a silent second for a homeownership program, neighborhood improvements and
revitalization; outreach and qualification of new homebuyers; financial education and
counseling; advocacy and policy work; and, homeowner support networks. Developer is solely
responsible for determining compliance with requirements of state law for using proceeds
referenced herein.
3.6.2 To determine the fair market value of the Affordable Unit for purposes of
this Section 3.6, Developer shall require an appraisal by a qualified appraisal at the time of the
initial sale to an Eligible Household and for the initial re -sale by a Homebuyer. If a Homebuyer
disputes the appraised value, the Homebuyer may pay for the costs of a second appraisal and, if
there is still disagreement, the average of the two appraisals shall be used to determine the fair
market value.
4. OPERATION OF THE PROJECT BY DEVELOPER
4.1 Recording of Documents.
4.1.1 Prior to issuance of a building permit for the Project, Developer and the City
shall record or cause to be recorded in the Official Records for Orange County, California, an
executed original of this Agreement. City shall cooperate with Developer in promptly executing
in recordable form this Agreement. The date of recording of the Agreement shall be the Effective
Date of the Agreement. Upon the date of recording, the terms and conditions of this Agreement
shall be binding upon and run with the Property and each Affordable Unit for the Total
Affordability Term. It is the express intent and agreement between the Parties that this Agreement
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shall remain binding and enforceable against the Property, the Project, and the Affordable Units
to ensure compliance with the Conditional Grant Agreement, the State Density Bonus Law and
City Density Bonus Ordinance, and to ensure the continued supply of Affordable Units in the
Project, except as expressly set forth in this Agreement.
4.1.2 Prior to the sale of an individual Affordable Unit to a Homebuyer,
Developer shall cause each Eligible Household purchasing an Affordable Unit to sign the
Affordable Housing Resale Restrictions and, as required by Section 3, the City Deed of Trust, as
approved by the City pursuant to Section 4.5, below, and Developer shall record them or cause
them to be recorded in the Official Records for Orange County, California.
4.2 Occupancy Levels. Subject to state or federal laws and regulations, the number of
persons permitted to occupy each three -bedroom Affordable Unit shall not exceed eight (8)
occupants.
4.3 Use of the Property. All uses conducted on the Property by Developer, including,
without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall
conform to all applicable provisions of the Santa Ana Municipal Code and other applicable federal,
state, and local laws, rules, and regulations.
4.4 Maintenance. Developer shall, at all times during the term of this Agreement, cause
the Property and the Project to be maintained in a decent, safe and sanitary manner, regardless of
cause of the disrepair. Developer and each Homebuyer shall be fully and solely responsible for
costs of maintenance, repair, addition and improvements. City, and any of its employees, agents,
contractors or designees shall have the right to enter upon the Property at reasonable times and in
a reasonable manner to inspect the Project, after providing notice as follows: (i) at least a 24-hour
notice to Developer and Tenants / Homebuyer of the Affordable Unit which will be inspected, or
(ii) at least 48 hours' notice to Developer, which shall promptly give notice to Tenants / Owners
of the Affordable Unit to be inspected.
4.5 Preparation and Recordation of Transfer Documents. Developer shall prepare and
obtain City's approval, which approval shall not be unreasonably withheld, conditioned or delayed,
of the City Loan Documents for each Affordable Unit to Eligible Households required by Section
3.5 of this Agreement. Developer shall not sell an Affordable Unit unless and until the City has
reviewed and approved the Homebuyer as an Eligible Household for the purchase of the
Affordable Unit, and the Homebuyer has executed and submitted to the Program Director, in
recordable form, the Homebuyer Loan Agreement, the Affordable Housing Resale Restrictions,
the City Promissory Note, the City Deed of Trust, the Notice of Affordability Restrictions, and the
approved financing for the Homebuyer,
4.6 Selection of Homebu,+�.
4.6.1 The Developer shall, at its sole cost and expense, conduct all procedures
and comply with all requirements as set forth in this Agreement and the Administrative Procedures
Manual in selecting Eligible Homebuyers for each Affordable Unit. Specific procedures are set
forth in Attachment C in the Administrative Procedures Manual.
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4.6.2 Developer shall be responsible for the selection of Eligible Homebuyers for
the Affordable Units in compliance with lawful and reasonable criteria and the requirements of
this Agreement. Prior to marketing any Affordable Units, Developer shall submit to the City for
review and approval a proposed form purchase and sale agreement ("Form PSA") to be used for
transferring the Affordable Units to Homebuyers. The Form PSA must contain all disclosures
required by the Administrative Procedures Manual, and copy of the Affordable Housing Resale
Restrictions, the City Promissory Note and the City Deed of Trust.
4.6.3 Subject to applicable laws and regulations governing nondiscrimination and
preferences in housing occupancy required by the State of California, the Developer shall give a
local preference in selecting Homebuyers of the Affordable Units in the following order of priority:
(a) First priority shall be given to persons who have been permanently
displaced or who face permanent displacement from housing in the City as a result of any of the
following: (i) for projects funded by the Low -Moderate Income Housing Asset Fund, a
redevelopment project undertaken pursuant to California's Community Redevelopment Law
(Health & Safety Code Sections 33000, et seq.); (ii) Ellis Act, owner -occupancy, or removal permit
eviction; (iii) earthquake, fire, flood, or other natural disaster; (iv) cancellation of a Housing
Choice Voucher HAP Contract by property owner; or (v) governmental action, such as Code
Enforcement.
(b) Second priority shall be given to persons who are either: (i) residents
of Santa Ana, (ii) individuals working in the City at least thirty two (32) hours per work for at least
six (6) months prior to the occupancy, (iii) persons who seek to reside in the City as an
accommodation to a mental or physical disability, or (iv) households with students who attend
public school in the City.
4.6.4 The initial Homebuyer for each Affordable Unit shall have provided at least
five hundred (500) hours of sweat equity pursuant to a written program implemented by Developer,
with written documentation of the requisite number of hours.
4.6.5 Developer shall select Homebuyers in accordance with their Homebuyer
Selection Process, which shall be provided to City upon request.
4.6.6 If a prospective Homebuyer qualifies as an Eligible Household, as defined
herein, the Homebuyer shall be required to execute the Developer's Form PSA for the purchase
and sale of an Affordable Unit. The Developer shall seek and obtain all approvals required from
the City pursuant to the Form PSA and the Administrative Procedures Manual, and shall provide
the City with all documentation required pursuant to this Agreement and the Administrative
Procedures Manual. The Developer must submit a copy of the executed Form PSA for the
purchase and sale of the Affordable Unit. The Program Director shall have not less than thirty
(30) days to review the agreement to verify the total purchase price and the Homebuyer down
payment amount to determine whether the terms are consistent with the requirements of this
Agreement. The City has approval rights over any material amendments to the Form PSA made
after it has been reviewed and approved by the Program Director.
4.7 Income Verification and Certification.
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4.7.1 Developer shall verify income of prospective Homebuyers and certify the
verification to the City. In evaluating prospective Homebuyers, Developer shall consider the
following sources of income in order of preference: (i) employment income; (ii) business income;
(iii) income from Social Security, Supplemental Security Income (SSI), welfare, disability, or
pension payments; and (iv) alimony or child support. To verify income, Developer shall comply
with the procedures set forth in Section A-3 of the Administrative Procedures Manual. Subject to
the foregoing preferences, Developer shall consider Gross Household Income from all adult
Household members, which is anticipated to be received during the 12-month period following the
date of the determination of Gross Household Income. Within fifteen (15) days of delivery of the
executed Form PSA for a prospective Homebuyer to the City, Developer shall provide City with
the Income Verification Form set forth in Exhibit F.
4.8 RESERVED
4.9 Notice of Affordability Restrictions on Transfer of Property. For each sale of an
Affordable Unit, Developer and the proposed buyer shall execute and deposit into escrow, a Notice
of Affordability Restrictions, in a form substantially similar to Exhibit E, which is attached hereto
and must be executed by the parties prior to any transfer of the Property.
4.10 Property Management Plan. Prior to issuance of a Certificate of Completion,
Developer shall submit, for the reasonable approval of the City, a "Management Plan" that sets
forth in detail Developer's property management duties to operate the Project in accordance with
this Agreement, including but not limited to the rules and regulations for the Property and manner
of enforcement, an operating budget, the identity and emergency contact information of the
professional property manager who will provide property management services for the Property,
and other matters relevant to the management of the Property. The Management Plan may include,
or be submitted in coordination with, the Emergency Evacuation Plan required under Section 4.11,
the Crime Free Housing Plan required by Section 4.12, the Onsite Parking Management Plan
required by Section 4.13, and the Marketing and Resident Selection Plan required by Section 4.14.
4.11 Emergency Evacuation Plan. Developer shall submit and obtain approval of an
Emergency Evacuation Plan (the EEP) from City Police and Fire Protection agencies prior to
issuance of a Certificate of Occupancy. Up-to-date 24-hour emergency contact information for
the on -site personnel shall be provided to the City on an ongoing basis and the approved EEP shall
be kept onsite and also be submitted to the following City Agencies:
(a) Police Department
(b) Fire Department
(c) Planning and Building Agency
(d) Community Development Agency
4.12 Crime Free Housing. Developer shall submit a crime -free housing policy,
procedure, and design plan (the "CFH Plan"), which includes the following provisions:
(a) Require parking areas to contain security cameras;
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553 94.00 1 01\42405923.1
(b) Require routine unit inspections; and
(c) Have policies in place to ensure that common use areas such as trash
enclosures are maintained in good condition and repair (e.g., well -lit, kept clean., etc.).
Developer shall submit and obtain approval from the City's Planning and Building
Agency ("PBA") that the CFH Plan meets the requirements of this Subsection 4.12 prior to
issuance of the Certificate of Occupancy. The approved CFH Plan shall be implemented and
administered by Developer or its designated property manager, subject to all legal requirements,
prohibitions against discrimination or unlawful housing practices.
4.13 Onsite Parking Management Plan. Developer shall provide onsite parking for
residents and visitors of the Project and actively monitor the parking demand of the Project site.
Developer shall continually monitor and take the following measures to manage the parking
demand of the Project site to mitigate the use of offsite parking spaces on private or public
properties and/or right-of-way.
(a) Require onsite parking permits (such as stickers or hang tags) for
any parking in the short-term overflow/guest parking spots;
(b) Policies for maximum time vehicles maybe parked in the short-term
overflow/guest parking spots; and
(c) Policies for towing unauthorized vehicles, vehicles parked in
unauthorized locations (such as fire lanes), vehicles parking in short-term overflow/guest parking
spots without a sticker, hang -tag, or other identifiers, and vehicles parked longer than any
maximum guest parking timeframes allowed.
Prior to issuance of the Certificate of Occupancy, Developer shall subunit and obtain
approval from the PBA a Parking Management Plan (the "PMP") including those measures above.
The approved PMP shall be adhered to and be enforced by the Project at all times.
4.14 Marketing and Resident Selection Plan.
4.14.1 Prior to Certificate of Occupancy, Developer shall prepare and obtain City's
approval of a marketing program and resident selection plan for the sale of the Affordable Units
at the Project ("Marketing Program"). The sale of the Affordable Units shall thereafter be
marketed in accordance with the Marketing Program as the same may be amended from time to
time with City's prior written approval. Upon request, Developer shall provide City with periodic
reports with respect to the sale of the Affordable Units.
4.14.2 The Marketing Program shall include, but is not limited to, marketing and
community outreach activities, proposed homebuyer selection criteria, occupancy standards,
income requirements, timeline and details for outreach and marketing, data collection, record
keeping and monitoring, procedures for complaints, and compliance assessment. Components of
the resident selection plan shall include, but are not limited to, the application process, interview
procedure, Affordable Unit offer and assignment for selected homeowners, rejected applications,
and wait list management. The resident selection process shall contain the Local Preference set
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forth in Section 4.6.3. All requirements set forth herein shall be incorporated in the Marketing
Program.
4.15 Non -Discrimination in Housing;. Developer, and any successors in interest, shall
not discriminate any person or group of persons on account of race, color, religion, sex, gender,
gender identity, gender expression, sexual orientation, marital status, national origin, ancestry,
familial or marital status, disability, veteran or military status, genetic information, political
affiliation or opinion, medical condition, pregnancy or pregnancy -related condition, or condition
of physical or mental disability or other handicap, age, or source of income or status with regard
to public assistance in the transfer, use, occupancy, tenure or enjoyment of the Property or the
Affordable Units, and the Developer, or any person claiming under or through it, shall not establish
or permit any such practice of discrimination or segregation with reference to the selection,
location, number, use or occupancy of any Homebuyer or resident of the Property or the Affordable
Units.
5. TERM OF THIS AGREEMENT
5.1 Term. The term of this Agreement shall commence on the Effective Date and shall
continue until the date that is forty-five (45) years after the City issues the last certificate of
occupancy for the building in which the Affordable Units are located.
6. DEFAULT AND TERMINATION, INDEMNIFICATION
6.1 Default. Failure or delay by any Party to perform any term or provision of this
Agreement, which is not cured within thirty (30) days after receipt of notice from the other Party
specifying the default (or such other period specifically provided herein), constitutes a default
under this Agreement; provided, however, if such default is of the nature requiring more than thirty
(30) days to cure, the defaulting Party shall avoid default hereunder by commencing to cure within
such thirty (30) day period, and thereafter diligently pursuing such cure to completion within an
additional sixty (60) days following the conclusion of such thirty (30) day period (for a total of
ninety (90) days). Except as required to protect against further damages, the injured Party may
not institute proceedings against the Party in default until the time for cure has expired. Failure or
delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time
of default.
6.2 Rights and Remedies Cumulative,
6.2.1 The rights and remedies of the Parties are cumulative, and the exercise by
either Party of one or more of its rights or remedies shall not preclude the exercise by it, at the
same or different times, of any other rights or remedies for the same default or any other default
by the other Party. City's rights and remedies to enforce this Agreement include any and all civil,
administrative, or criminal remedies as set forth in local, state, or federal law. Notwithstanding
anything to the contrary contained in this Agreement, in no event shall either Party be liable for
speculative, consequential, punitive or other indirect damages, and each Party waives any right to
collect speculative, consequential, punitive or other indirect damages against the other Party.
6.2.2 The City's actions and remedies may include, but are not limited to, the
following;
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553 94. 00101 \42 40 5 92 3.1
(a) Actions for specific performance of this Agreement or to enjoin any
actions by the Developer or any other person in violation of this Agreement, the Conditional Grant
Agreement, or the requirements of the Administrative Procedures Manual;
(b) Actions to disapprove, revoke or suspend any permit, including a
building permit, Certificate of Occupancy or other discretionary approval;
(c) Actions for civil damages, restitution, or other monetary relief;
(d) Injunctive relief and damages; or
(e) Civil citations with monetary penalties.
6.2.3 If the Developer sells any of the Affordable Units in violation of this
Agreement, as restitution to the City, the Developer shall forfeit all monetary amounts obtained
through the sale of the Affordable Units.
6.2.4 All such restitution shall be made to the City. Any funds received by the
City under this provision of this Agreement shall be placed in the City's Inclusionary Housing
Fund.
6.3 Indemnification. In addition to any other indemnity specifically provided in this
Agreement, Developer agrees to defend (with counsel of City's choosing and the consent of
Developer, which shall not be unreasonably withheld, conditioned or delayed and which may be
joint defense counsel upon City's and Developer's consent) indemnify and hold harmless City and
its respective officers, officials, agents, employees, representatives, and volunteers (collectively,
"Indemnitees") from and against any loss, liability, claim, or judgment arising from any act or
omission of Developer in carrying out its obligations under this Agreement, except to the extent
caused by the negligence or willful misconduct of Indemnitees.
7. ASSIGNMENT; COVENANTS RL WITH THE LAND
7.1 Assignment by Developer.
7.1.1 Prohibited Transfers or Assignments. Developer shall not sell, transfer, or
assign the Property or Project in whole or in part, or transfer or assign Developer's rights and
obligations in this Agreement, in whole or in part, unless the sale, transfer, or assignment complies
with this section ("Permitted Transfer"). If Developer seeps to sell, transfer or assign the Property
or Project, or any rights and obligations in this Agreement, in a manner that does not constitute a
Permitted Transfer, Developer shall request City's written consent, and City shall respond within
thirty (30) days with a written approval or denial, which City may determine in its sole and absolute
discretion. If City approves such a request, then prior to any such sale, transfer or assignment,
Developer shall pay City's reasonable fees as compensation for the City's review of the request.
City's failure to respond to the request within thirty (30) days shall be deemed an approval.
7.1.2 Sale of Property. Developer agrees and declares that the Property and the
Project shall be held, conveyed, mortgaged, encumbered, used, occupied, operated, sold, and
approved subject to all obligations set forth or incorporated in this Agreement, all of which are for
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the purpose of enhancing and protecting the value and attractiveness of the Property and the
Project. All of the obligations set forth or incorporated in this Agreement shall constitute
covenants which run with the land and shall be binding on Owner and its successors and assigns,
and all parties having or acquiring any right, title or interest in, or to any part of the Property or
Project. Owner further understands and agrees that the Density Bonus permit approvals received
for this Project have been made on the condition that Owner and all subsequent owners, or other
successors and assigns of the Property and/or Project sell the Affordable Units in accordance with
the terms, conditions, covenants, and restrictions of this Agreement for the Total Affordability
Term.
7.1.3 Subsequent Assignment. As used in this Agreement, the term "Developer"
shall be deemed to include any such transferee or assignee after the date such sale, transfer, or
assignment occurs in compliance with this Agreement.
7.1.4 Unpermitted Assignments Void. Any sale, transfer, or assignment made in
violation of this Agreement shall be null and void, and City shall have the right to pursue any right
or remedy at law or in equity to enforce the provisions of the restriction against unpermitted sales,
transfers, or assignments.
7.2 Covenants Run with the Land. The Property shall be used, occupied and improved
subject to the covenants, conditions, and restrictions set forth herein. The covenants, conditions,
restrictions, reservations, equitable servitudes, liens and charges set forth in this Agreement shall
run with the Property and shall be binding upon Developer and all persons having any right, title
or interest in the Property, or any part thereof, their heirs, and successive owners and assigns, shall
inure to the benefit of City and its successors and assigns, and may be enforced by City and its
successors and assigns. The covenants established in this Agreement shall, without regard to
technical classification and designation, be binding for the benefit and in favor of City and its
successors and assigns, and the parties hereto expressly agree that this Agreement and the
covenants herein shall run in favor of City. City is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the land, for and in its own right
and for the purposes of protecting the interests of the community and other parties, public or
private, in whose favor and for whose benefit this Agreement and the covenants running with the
land have been provided. Developer hereby declares its understanding and intent that the burden
of the covenants set forth herein touch and concern the land and that the Developer's interest in the
Property is rendered less valuable thereby. Developer hereby further declares its understanding
and intent that the agreement provides a public benefit in furtherance of benefit of such covenants
touch and concern the land by enhancing and increasing the enjoyment and use of the Property by
the citizens of City and by furthering the health, safety, and welfare of the residents of City.
8.1 Entire Agreement. This Agreement and all of its exhibits and attachments set forth
and contain the entire understanding and agreement of the parties with respect to the matters set
forth herein, and there are no oral or written representations, understandings or ancillary covenants,
undertaldngs or agreements which are not contained or expressly referred to herein. No testimony
or evidence of any such representations, understandings or covenants shall be admissible in any
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55394.0010 R42405923.1
proceeding of any kind or nature to interpret or determine the terms or conditions of this
Agreement.
8.2 Amendment. Any alteration, change or modification of or to this Agreement, in
order to become effective, shall be made in writing and in each instance approved by the City
Council, and signed on behalf of each party. Any requested alteration, change or modification of
the Agreement by Developer shall require the payment of fees or deposit by Developer to City, as
applicable, for the City's review of the request. Each alteration, change, or modification to this
Agreement shall be recorded against the Property in the Official Records of Orange County,
California.
8.3 Notices.
8.3.1 Deliverv. As used in this Agreement, "notice" includes, but is not limited
to, the communication of notice, request, demand, approval, statement, report, acceptance,
consent, waiver, appointment or other communication required or permitted hereunder. All notices
shall be in writing and shall be considered given either: (i) when delivered in person to the recipient
named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United
States mail in a sealed envelope as either registered or certified mail with return receipt requested,
and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) two
(2) days after deposit in the United States mail in a scaled envelope, first class mail and postage
prepaid, and addressed to the recipient named below; or (iv) one (1) day after deposit with a known
and reliable next -day document delivery service (such as Federal Express), charges prepaid and
delivery scheduled next -day to the recipient named below, provided that the sending party receives
a confirmation of delivery from the delivery service provider; or (v) the first business day
following the date of transmittal of any facsimile, provided confirmation of successful transmittal
is retained by the sending Party; or (vi) upon transmission thereof (as evidenced by the recipient's
reply to such notice or other competent evidence of actual receipt) if transmitted by electronic
transmission (email), provided that a copy of such notice is concurrently sent by first-class mail
postage prepaid. All notices shall be addressed as follows:
If to City: City of Santa Ana
Community Development Agency
20 Civic Center Plaza (M-26)
P.O. Box 1988
Santa Ana, California 92702
Attention: Housing Manager
With a copy to: Office of the City Attorney
City of Santa Ana
20 Civic Center Plaza, 7th Floor (M-29)
Santa Ana, California 92702
If to Developer: Habitat for Humanity of Orange County
2200 S. Ritchey Street
Santa Ana, CA 92705
Attn: Executive Director
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55394.0010 A42405923.1
8.3.2 Change of Address. Either Party may, by notice given at any time, require
subsequent notices to be given to another person or entity, whether a party or an officer or
representative of a party, or to a different address, or both. Notices given before actual receipt of
notice of change shall not be invalidated by the change.
8.4 Severability. If any term, provision, covenant or condition of this Agreement shall
be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected
thereby to the extent such remaining provisions are not rendered impractical to perform, taking
into consideration the purposes of this Agreement.
8.5 Interpretation and Governing Law. This Agreement and any dispute hereunder
shall be governed and interpreted in accordance with the laws of the State of California without
regard to conflict of law principles. This Agreement shall be construed as a whole according to
its fair language and common meaning to achieve the objectives and purposes of the Parties hereto,
and the rule of construction to the effect that ambiguities are to be resolved against the drafting
Party shall not be employed in interpreting this Agreement, all Parties having been represented by
counsel in the negotiation and preparation hereof.
8.6 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
8.7 Singular and Plural. As used herein, the singular of any word includes the plural,
and vice versa, as context so dictates. Masculine, feminine, and neuter forms of any word include
the other as context so dictates.
8.8 Joint and Several Obligation s. If at any time during the term of this Agreement the
Property and/or Project is owned, in whole or in part, by more than one Developer, all obligations
of such Developer under this Agreement shall be joint and several, and the default of any such
Developer shall be the default of all such Developers.
8.9 Time of Essence. Time is of the essence in the performance of the provisions of
this Agreement as to which time is an element.
8,10 Computation of Days. Unless otherwise specified in this Agreement or any Exhibit
attached hereto, use of the term "days" shall mean calendar days. For purposes of this Agreement
and all Exhibits attached hereto, "business days" shall mean every day of the week except
Saturdays, Sundays, official State holidays as recognized in Government Code Section 19853(a)
or successor statute, and any days in which Santa Ana City Hall is closed for business.
8.11 Waiver. Failure by a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon
the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand
strict compliance by the other Party with the terms of this Agreement thereafter.
8.12 Non -Discrimination in Employment. In performing its obligations under this
Agreement, Developer shall not discriminate because of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, reproductive health decisionmaking,
medical condition, genetic information, marital status, sex, gender, gender identity, gender
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expression, age, sexual orientation, or veteran or military status, as defined and prohibited by
applicable law, in the recruitment, selection, training, utilization, promotion, termination or other
related activities. Developer affirms that it is an equal opportunity employer and shall comply with
all applicable federal, state and local laws and regulations.
8.13 Third Party Beneficiaries. No person or entity, other than City and Developer shall
have any right of action based upon any provision of this Agreement.
8.14 Force Majeure. Neither Party shall be deemed to be in default where failure or
delay in performance of any of its obligations under this Agreement is caused by floods,
earthquakes, other Acts of God, fires, pandemics as declared by federal, state, or local emergency
resolution, wars, riots or similar hostilities, strikes and other labor difficulties beyond the Party's
control (including the Party's employment force), court actions (such as restraining orders or
injunctions), or other causes beyond the Party's control, including delays by any governmental
entity (although the City may not benefit from this provision for a delay that results from City's
failure to perform its obligations under this Agreement), or an insurance company of either party.
If any such events shall occur, the term of this Agreement and the time for performance by either
Party of any of its obligations hereunder may be extended by the written agreement of the Parties
for the period of time that such events prevented such performance.
8.15 Mutual Covenants. The covenants contained herein are mutual covenants and also
constitute conditions to the concurrent or subsequent performance by the Party benefited thereby
of the covenants to be performed hereunder by such benefited Party.
8.16 Successors in Interest. The burdens of this Agreement shall be binding upon, and
the benefits of this Agreement shall inure to, all permitted successors in interest to the Parties to
this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and
constitute covenants running with the land. Each covenant to do or refrain from doing some act
hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon
every portion of the Property; (b) runs with the Property and each portion thereof; and (c) is binding
upon each Party and each successor in interest approved pursuant to this Agreement during
ownership of the Property or any portion thereof.
8.17 Counterparts. This Agreement may be executed by the Parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the Parties had
executed the same instrument.
8.18 Jurisdiction and Venue. Any action at law or in equity under this Agreement or
brought by a Party hereto for the purpose of enforcing, construing or determining the validity of
any provision of this Agreement shall be filed and tried in the Superior Court of the County of
Orange, State of California, and the Parties hereto waive all provisions of law providing for the
filing, removal or change of venue to any other court.
8.19 Project as a Public -Private Undertaking. It is specifically understood and agreed
by and between the Parties hereto that the development of the Project is a public -private
development, that neither Party is acting as the agent of the other in any respect hereunder, and
that each Party is an independent contracting entity with respect to the terms, covenants and
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conditions contained in this Agreement. No partnership, joint venture or other association of any
kind is formed by this Agreement. The only relationship between City and Developer is that of a
government entity regulating the development of public -private property and the Developer of
such property.
8.20 Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the performance
of all obligations under this Agreement and in the satisfaction of the Project and conditions of this
Agreement. Upon the request of either Party at any time, the other Party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or the Project
or to evidence or consummate the transactions contemplated by this Agreement. City hereby
authorizes City Manager to take such other actions and negotiate and execute any additional
agreements or amendments to this agreement as may be reasonably necessary or proper to fulfill
the City's obligations under this Agreement. The City Manager may delegate her or his powers
and duties under this Agreement to an authorized management level employee of the City.
8.21 Estoppel Certificate. Within ten (10) business days following a written request by
any of the Parties, the other Party shall execute and deliver to the requesting Party a statement
certifying that (i) either this Agreement is unmodified and in full force and effect or there have
been specified (date and nature) modifications to the Agreement, but it remains in full force and
effect as modified; and (ii) either there are no known current uncured defaults under this
Agreement or that the responding Party alleges that specified (date and nature) defaults exist. The
statement shall also provide any other reasonable information requested. The failure to timely
deliver this statement shall constitute a conclusive presumption that this Agreement is in full force
and effect without modification, except as may be represented by the requesting Party, and that
there are no uncured defaults in the performance of the requesting Party, except as may be
represented by the requesting Party.
8.22 No Subordination. City's approval of the necessary land use entitlements that
authorize Developer to develop, operate, and maintain the Project was based upon Developer's
obligation to provide the Affordable Units pursuant to the State Density Bonus Law, City Density
Bonus Ordinance, and the terms and conditions of this Agreement. For the Total Affordability
Term, this Agreement shall have priority over any and all mortgages, deeds of trust, and other
similar forms of secured financing recorded against the Property or any portion thereof. Developer
expressly understands and acknowledges that state law requires preservation of affordability
covenants in connection with the approval of this density bonus project.
8.22.1 Furthermore, the City will require each Homebuyer purchasing an
Affordable Unit to execute an Affordable Housing Resale Restrictions and Notice of Affordability
on Transfer of Property. The Affordable Housing Resale Restrictions and Notice of Affordability
on Transfer of Property shall have priority over any and all mortgages, deeds of trust, and other
similar forms of secured financing recorded against the Property or any portion thereof.
8.23 Attorneys' Fees and Costs. If either Party to this Agreement commences an action
against the other Party to this Agreement arising out of or in connection with this Agreement, the
23
55394.00 10 1 \42405923.1
prevailing Party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs
of investigation, and costs of suit from the losing Party.
8.24 Authority to Execute. The person or persons executing this Agreement on behalf
of each Party warrants and represents that he or she/they have the authority to execute this
Agreement on behalf of his or her/their corporation, partnership or business entity and warrants
and represents that he or she/they has/have the authority to bind the Party to the performance of its
obligations hereunder.
(Signatures on following page)
24
55394.00101 \42405 923.1
IN WITNESS WHEREOF, the parties hereto have caused this Affordable Housing
Regulatory Agreement and Declaration of Covenants and Restrictions to be executed on the date
set forth at the beginning of this Agreement.
DEVELOPER
HABITAT FOR HUMANITY OF - NGE COUNTY
a California nonprofit religious co oration.
By.
Name: 0104A57L VALIVift�1
Title:_ PR"S5CGO
25
5 5394. 00 10 1 \42405923.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
"A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the
document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. "
State of California )
) ss.
County of Orange )
On TLA LY 2-+ , 2024, before me, Rita A. Ross, a Notary Public, personally
(Hcre insert the name and title of the alfiour)
appeared l L. VA_Le_NT11`l0
who proved to me on the basis of satisfactory evidence to be the person(-s) whose name(-r,6/tee
subscribed to the within instrument and acknowledged to me thatOi /may executed the
same in (0/fir authorized capacity(ies), and that by 49r 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 ra hand and official
signature
*my
RITA A. ROSS
Notary Public - California
Orange CountyCommissin � # 2441617
Comm. Expires Apr 15, 2921
[Seall
Attached to: RU4f1U LAID f S' Y A ('=--REFFA krr C -Ty aF tTA, MA
ATTEST:
APPROVED AS TO FORM:
SONIA R. CARVALHO, City Attorney
Matthew Cody
Best, Best & Krieger
Special Counsel for the City
Dated: June 25, 2024
RECOMMENDED FOR APPROVAL:
Michael L. Garcia
Executive Director
Community Development Agency
Dated: L4,g e— )4, _ 20,7-
IR
55394.00101 \42405923.1
CITY OF SANTA ANA
' W-A
Alvaro Nunez
Acting City ff�i M ger
Dated: (7-o 2-
CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document
to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California 1
County of Ora nu J}
On S� i 1()M before me, aA-rra , NIv�qru P4b1,�
Date Here Insert Name and Title of the 6fficer
personally appeared �'lVai� MU'P 2 Z
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)6are subscribed
to the within instrument and acknowledged to me that i s ie/they executed the same in(g/her/their
authorized capacity(ies), and that by0her/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
EyELYHIBaRRA
µauryPublic•califarnla j paragraph is true and correct.
K orange County
Cammimian a 2489063
• lAyCamm.Eupiresaay3,2�28 WITNESS my hand and official seal.
Signature
Place Notary Seal and/or Stamp Above Sig ature of Notary Public
Completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document,
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer —
❑ Partner — ❑ Limite
❑ Individual
d
Title(s):
❑ General
❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer is Representing:
92019 National Notary Association
Number of Pages:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer is Representing:
EXHIBITS
Exhibit A: Legal Description of the Property
Exhibit B: Affordable Housing Resale Restrictions
Exhibit C: City Deed of Trust
Exhibit D: City Promissory Note
Exhibit E: Notice of Affordability Restrictions
Exhibit F: Income Verification Form
Exhibit G: Certification of Continued Occupancy
27
553 94.00101 \42405923.1
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
55394.00 10 1 \42347096.1
**Hs1N01*181:71-Ufd107k7,I
Real property in the City of Santa Ana, County of Orange, State of California, described
as follows:
LOT 4 IN BLOCK A OF TRACT NO. 451, IN THE CITY OF SANTA ANA, AS PER MAP
RECORDED IN BOOK
16, PAGE 41 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID ORANGE
COUNTY.
EXCEPTING THEREFROM THE WEST 7 FEET AND THE EAST 3 FEET.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE CITY OF
SANTA ANA AS DESCRIBED
1N DOCUMENT RECORDED FEBRUARY 25, 1983 AS INSTRUMENT NO. 83-84912
OF OFFICIAL RECORDS.
APN: 405-101-37
EXHIBIT B
AFFORDABLE HOUSING RESALE RESTRICTIONS
55394.00 1 0114234709G.1
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
City of Santa Ana )
20 Civic Center Plaza (M-37) )
Santa Ana, California 92702 )
Attn: Housing Manager )
This document is exempt from payment of a recording fee
pursuant to Government Code Sections 27383 and 6103.
AFFORDABLE HOUSING RESALE RESTRICTION
(Conditions, Covenants, and Restrictions Affecting Real Property and the Resale,
Ownership, Occupancy, Maintenance, and Other Matters Related to Real Property)
This AFFORDABLE HOUSING RESALE RESTRICTION ("Restriction") is made
as of , by ("Homebuyer") in favor of the CITY OF SANTA
ANA, a charter city and municipal corporation ("City").
RECITALS
A. Homebuyer has purchased a single family house located at ,
Santa Ana, California 9270_, as such real property is more particularly described in "Exhibit A"
attached hereto and incorporated herein ("Property"),
B. Homebuyer and City have entered into that certain Homebuyer Loan Agreement
("Loan Agreement") dated of even date herewith, which is incorporated herein by reference and
a copy of which is on file with City at its offices and is a public record, pursuant to which City
has agreed for the Property to be sold to Homebuyer at an Affordable Sales Price by providing
certain financial assistance for the Project, which benefits the Homebuyer ("Homebuyer Loan")
and Homebuyer has agreed to subject the Property to certain conditions, covenants and
restrictions. Capitalized terms used herein and not otherwise defined shall have the same
meaning as set forth in the Loan Agreement.
C. Homebuyer and City desire and intend to restrict the Property and the
improvements thereon in accordance with this Restriction to preserve its value for the benefit of
Homebuyer, its successors and the surrounding neighborhood. Homebuyer agrees and
acknowledges that these Restrictions are intended to implement and further the intent of the
Regulatory Agreement Imposing Affordable Housing Covenants and Restrictions (Density
Bonus) (hereafter, the "Regulatory Agreement"), entered into between City and Developer of the
Property, which was recorded against the Affordable Unit to impose the conditions, covenants,
and restrictions as set forth herein. These Restrictions shall be construed in accordance with the
Regulatory Agreement and, in the event of a conflict, the provisions of the Regulatory
Agreement shall control.
EXHIBIT B
D. Homebuyer is a Low Income Household, as that term is defined in this
Restriction.
E. Homebuyer has represented to City that Homebuyer and Homebuyer's household
intend to reside in the Property as Homebuyer's principal residence at all times during
Homebuyer's ownership of the Property.
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
1. Definitions
"Affordability Period" means that period of time commencing upon the Date of this
Restriction and terminating on the forty-fifth (45th) anniversary of such date.
"Affordable Housing Cost" means the purchase price for Moderate Income Households
pursuant to California Health & Safety Code Section 50052.5, the implementing regulations of
Sections 6920, 6924 and 6930 of Title 25 of the California Code of Regulations for Moderate
Income Households
Notwithstanding the provisions of this Restriction, if the Property is sold during the
Affordability Period by Homebuyer to a Low Income Household, and the Sales Price does not
exceed an "Affordable Housing Cost" to such Buyer, then so long as the Maker is not in default
(either Ownership Default or Maintenance Default) of the Agreement, the Note may be assumed
by the eligible Buyer by an assignment and assumption agreement that is reasonably acceptable
to City. Upon the effective date of such assignment and assumption, the assigning Homebuyer
shall no longer be liable for any further obligations under the Loan Agreement or this Restriction
that accrue after the date of such assignment and assumption. In order to verify the Buyer's
status as a Low Income Household, Homebuyer shall submit to the City the identity of the
proposed Buyer and adequate information evidencing the income and household size of the
proposed Buyer. Said income information shall be submitted together with the notice of
proposed sale pursuant to Section 2 of the Loan Agreement not less than thirty (30) days prior to
opening of escrow for the proposed sale and shall include original or true copies of pay stubs,
income tax records or other financial documents in order that the City may determine and verify
the household income of the proposed Buyer to determine whether the Buyer is a Low Income
Household, and whether the Property is being transferred to such Buyer at an Affordable
Housing Cost, If the City is unable to verify the Buyer's income as provided herein prior to the
proposed sale, then the Buyer's income shall be deemed to exceed the maximum allowable
income limit for Eligible Persons and Families.
"City" means the City of Santa Ana, California, a California municipal corporation, and
the City's successors and assigns.
"County" means the County of Orange, California.
"Date of this Restriction" means the date in the first paragraph of this Restriction.
"Default" means the failure of a party to perform any action or covenant required by this
Restriction within the time periods provided herein following notice and opportunity to cure.
2
EXHIBIT B
The term default also includes an Ownership Default and a Maintenance Default as more fully
defined and described herein. Notwithstanding the foregoing for purposes of acceleration of the
Homebuyer Loan, or initiation of foreclosure proceedings there shall be a distinction between the
types of default hereunder, including an "Ownership Default" and a "Maintenance DefauIt." The
term "Ownership Default" means the failure of Homebuyer to perform any action or covenant
required by the Affordable Housing Resale Restriction related to ownership, owner -occupancy,
lien priority, and restrictions on sale and resale of. the Property subject to the notice and
opportunity to cure provisions set forth herein. A default of any obligation secured by the First
Lien shall be a cross -default and also constitute an Ownership Default. The term "Maintenance
Default" means the failure of Homebuyer to perform any action or covenant required by
Restriction relating to a "Maintenance Deficiency," including the ongoing upkeep, maintenance,
and use of the Property in decent, safe, sanitary, clean, and neighborly manner, subject to the
notice and opportunity to cure provisions set forth herein (and expressly excluding an Ownership
Default).
"Developer" means Habitat for Humanity of Orange County, a non-profit public benefit
corporation.
"First Lien" means the lien of the institution making the purchase money mortgage loan
to Homebuyer for the purchase of the Property.
"Homebuyer" means the person or persons set forth in the first paragraph of this
Restriction, and their successors and assigns.
"Legal Description" means the legal description of the Property which is attached hereto
as Exhibit A and incorporated herein.
"Low Income" and "Low Income households" means low income households as
defined in Health & Safety Code Section 50079.5.
"Notice of Intent to Transfer" means the Notice of Intent to Transfer attached hereto as
Exhibit B and incorporated herein by reference.
hereof.
"Permitted Transfer" means any Transfer which is permitted pursuant to Section 4
"Prohibited Transfer" means any Transfer which is not permitted pursuant to Section 4
hereof.
"Property" means that certain real property located at the street address set forth in
Recital A and legally described in the Legal Description.
"Purchase Agreement" means that certain agreement pursuant to which Homebuyer has
agreed to purchase the Property from the Developer.
"Request for Approval of Proposed Transferee" means the Request for Approval of
Proposed Transferee attached hereto as Exhibit B and incorporated herein.
EXHIBIT B
"Request for Notice" means the Request for Notice of Default attached hereto as Exhibit
C and incorporated herein.
"Restriction" means this Affordable Housing Resale Restriction.
"Sales Price" means the sum to be paid by a Transferee for the Transfer of the Property.
"Transfer" shall mean any sale, assignment, conveyance, lease or transfer, voluntary or
involuntary, of any interest in the Property. Without limiting the generality of the foregoing,
Transfer shall include (i) a transfer by devise, inheritance or intestacy to a party who does not
meet the definition of a Low or Moderate Income Household; (ii) a life estate; (iii) creation of a
joint tenancy interest; (iv) a gift of all or any portion of the Property; or (v) any voluntary
conveyance of the Property. Transfer shall not include transfer to a spouse in a dissolution
proceeding.
"Transferee" shall mean any natural person or entity who obtains ownership or
possessory rights in the Property pursuant to a Transfer.
2. Restrictions on, Sale of Property. Homebuyer covenants and agrees that during
the Affordability Period, each subsequent resale of the Property by the then -owner thereof shall
be to a Low Incozue Household at an Affordable Housing Cost.
3. Homebuyer's Representations and Warranties as to the Sale of the Property
to Homebuyer. Homebuyer represents and warrants to City that the financial and other
information which Homebuyer has provided to City with respect to Homebuyer's income and the
purchase price of the Property was true and correct at the time such information was provided,
and remains true and correct as of the Date of this Restriction.
4. Permitted Sales of the Property. City hereby permits sales of the Property to
proposed Transferees who are Low Income Households, and are approved in accordance with
this Section 4, provided the Sales Price does not exceed an Affordable Housing Cost to such
proposed Transferee ("Permitted Transfers"). In the event that Homebuyer desires to Transfer
the Property during the Affordability Period, prior to the Transfer the owner shall notify City by
delivering a Notice of Intent to Transfer to City, which shall indicate the identity of the proposed
Transferee who desires to purchase the Property, whether the purchaser is a Low Income
Household, and whether the sales price is at an Affordable Housing Cost. In addition to
Homebuyer's and the proposed Transferee's delivery of the Notice of Intent to Transfer, the
following procedure shall apply:
a. Notice to City. Homebuyer shall send the Notice of Intent to Transfer to
City at the address set forth in Section 24.
b. Qualification of Proposed Transferee. The proposed Transferee shall
provide City with sufficient information in the form provided by City including without
limitation, a certification as to the income and family size of the proposed Transferee, for City to
determine if the proposed Transferee is a Low or Moderate Income Household, and the purchase
price is at an Affordable Housing Cost.
4
EXHIBIT B
C. Certificates from Parties. Homebuyer and proposed Transferee each
shall certify in writing, in a form acceptable to City, that the Transfer shall be closed in
accordance with, and only with, the terms of the sales contract and other documents submitted to
and approved by City and that all consideration delivered by the proposed Transferee to owner
has been fully disclosed to City. The written certificate shall also include a provision that in the
event a Transfer is made in violation of the terms of this Restriction or false or misleading
statements are made in any documents or certificate submitted to City for its approval of the
Transfer, City shall have the right to file an action at law or in equity to make the parties
terminate and/or rescind the sales contract and/or declare the sale void notwithstanding the fact
that the Transfer may have closed and become final as between Homebuyer and Transferee.
d. Written Consent of City Required Before Transfer. During the
Affordability Period, the Property, and any interest therein, shall not be conveyed by any
Transfer except with the express written consent of City, which consent shall be given only if the
Transfer is in accordance with the provisions of this Restriction. This provision shall not
prohibit the encumbering of title for the sole purpose of securing financing of the purchase price
of the Property.
C. Notice of Prohibited Transfer. Within twenty (20) days after receiving
notification of a proposed Transfer in accordance with Section 4a., City shall determine and give
notice to Homebuyer as to whether the proposed Transfer is a Permitted Transfer or Prohibited
Transfer, or whether the Transfer would cause an acceleration of the Note. In the event that the
proposed Transfer is a Prohibited Transfer, such notice to Homebuyer shall specify the nature of
the Prohibited Transfer. If the violation is not corrected to the satisfaction of City within ten (10)
days after the date of the notice, or within such further time as City determines is necessary to
correct the violation, City may declare a Default under this Restriction. Upon the declaration of
a Default, City may apply to a court of competent jurisdiction for specific performance of this
Restriction, for an injunction prohibiting a proposed sale or Transfer in violation of this
Restriction, for a declaration that the Prohibited Transfer is void, or for any such other relief as
may be appropriate.
f. Delivery of Documents. Upon the close of the proposed Transfer,
Homebuyer and Transferee, as applicable, shall provide the City with a copy of the final sales
contract, settlement statement, escrow instructions, all certificates required by this Section 4 and
any other documents City may request.
EXHIBIT B
5. Encumbrances.
a. Subordination. Except as provided otherwise herein, the provisions of
the Loan Agreement, this Restriction, the Notice of Affordability Restrictions and the City Deed
of Trust and Rider, the obligations herein and therein, shall be subordinate only to the First Lien
on the Property and, if applicable, other loan(s) as approved by the Executive Director, including
lien instruments that secure other Homebuyer purchase money and/or down payment assistance,
including without limitation City, State of California, or federal affordable housing programs,
which liens shall not impair the rights under the First Lien in the event of default under the First
Lien by Homebuyer. Such remedies under the First Lien include the right of foreclosure or
acceptance of a deed or assigmnent in lieu of foreclosure. If title to the Property is transferred by
foreclosure or acceptance of a deed in lieu of foreclosure, or assignment of the First Lien to the
Secretary of the Department of Housing and Urban Development, the Loan Agreement, this
Restriction, and City Deed of Trust shall be automatically terminated and shall have no further
effect as to the Property or any Transferee thereafter. However, in no event shall the Loan
Agreement, the City Deed of Trust, and this Affordable Housing Resale Restriction, be
subordinate to any First Lien on the Property securing a loan with provisions which allow
negative amortization, or to refinancing of the lien of the First Lien for a loan amount in excess
of the sum of the then current loan balance secured by the First Lien and loan closing costs.
b. Request for Notice of Default, City may cause a Request for Notice to
be recorded on the Property subsequent to the recordation of the First Lien deed of trust or
mortgage requesting a statutory notice of default as set forth in California Civil Code Section
2924b. A form of a Request for Notice is attached hereto as Exhibit C and incorporated herein.
e. Further Encumbrances. Homebuyer agrees that it shall not record or
cause the recordation of any deed of trust ("Further Encumbrance") securing a note having an
original principal sum which, when added to the sum of the principal amount(s) of any notes
secured by any deeds of trust against the Property as of the date of recordation of the Further
Encumbrance, exceeds one hundred percent (100%) of the fair market value of the Property.
6. Reserved.
7. Uses. Homebuyer covenants and agrees to devote, use and maintain the Property
in accordance with this Restriction. All uses conducted on the Property, including, without
limitation, all activities undertaken by Homebuyer pursuant to this Restriction, shall conform to
all applicable provisions of the Santa Ana Municipal Code, and the recorded documents
pertaining to and running with the Property.
S. Nondiscrimination Covenants. Homebuyer covenants by and for itself, its
successors and assigns, and all persons claiming under or through them that there shall be no
discrimination against or segregation of, any person or group of persons on account of any basis
listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are
defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of
Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the
grantee or any person claiming under or through him or her, establish or permit any practice or
6
EXHIBIT B
practices of discrimination or segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessecs, or vendees in the premises herein
conveyed. The foregoing covenants shall run with the land. All deeds, leases or contracts
relating to the Property, or any part thereof, shall contain or be subject to substantially the
following non-discrimination or non -segregation 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 Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section
12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the premises herein conveyed, nor shall the grantee 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."
(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 Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section
12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy,
tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself,
or any person claiming under or through him or her, establish or permit any such practice
or practices of discrimination or segregation with reference to the selection, location,
number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the
premises herein leased."
(c) In contracts: "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 Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the premises which are the subject of this Agreement,
nor shall the grantee 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."
7
EXHIBIT B
The covenants established in this Section 8 shall, without regard to technical
classification and designation., be binding for the benefit and in favor of City and its successors
and assigns, and shall remain in effect in perpetuity.
9. Maintenance of Property. Homebuyer shall maintain the improvements and
landscaping on the Property in a manner consistent with community standards which will uphold
the value of the Property, in accordance with the Santa Ana Municipal Code. Homebuyer also
agrees to comply with all applicable federal, state and local laws.
a. Exterior Maintenance. Except as to be maintained by the homeowners
association, as applicable, all exterior, painted surfaces of any structures located on the Property
shall be maintained at all times in a clean and good condition. Any defacing marks shall be
cleaned or removed within a reasonable period of time.
b. Front and Side Exteriors. Except as to be maintained by the
homeowners association, as applicable, Homebuyer shall at all times maintain the front exterior,
any visible side exteriors, and yards, if any, in a clean, safe and presentable manner.
C. Graffiti Removal. All graffiti and defacement of any type, including but
not limited to marks, words and pictures, shall be promptly removed from the Property within
two (2) days of the time they were made and any necessary painting or repair completed in a
timely and expeditious manner after notice thereof, whichever is less.
d. No Nuisance. Homebuyer shall not maintain, cause to be maintained, or
allow to be maintained on or about the Property any public or private nuisance, including without
limitation, the conduct of criminal activities set forth in the nuisance abatement provisions of the
Uniform Controlled Substances Act (Health & Safety Code Sections 11570, et seq.) or the Street
Terrorism Enforcement and Prevention Act (Penal Code Sections 186.22 et seq.), or any
successor statute or law.
10. Occupancy Standards, The Property shall be used as the principal personal
residence of Homebuyer and Homebuyer's immediate family/household and for no other
purpose. Homebuyer shall not enter into an agreement for the rental or lease of all or any part of
the Property. Homebuyer shall not rent out a room or rooms at the Property. Homebuyer may
request a temporary waiver of the foregoing requirement in the event of extreme hardship
requiring Homebuyer to move to another geographical area or to less expensive housing,
including, for example and without limitation, transfer of job location, loss of job, or unexpected
major expenses. City may approve or disapprove such request in its sole discretion, and may
require as a condition of approval that Homebuyer only rent the Property to Eligible Low Income
Households at an affordable rent (as defined in Section 50052.5 and 50053 of the California
Health & Safety Code.) Subject to applicable state or federal law, the standard occupancy for the
Property shall be consistent with the Regulatory Agreement. Homebuyer shall, upon demand by
City, submit to City an affidavit of occupancy verifying Homebuyer's compliance with this
Section 10. Such affidavit may be required by City on an annual basis.
EXHIBIT B
11. Effect of Violation of the Terms and Provisions of this Restriction.
a. In General. The covenants established in this Restriction shall, without
regard to technical classification and designation, be binding for the benefit and in favor of City,
its successors and assigns, as to those covenants which are for its benefit. The covenants
contained in this Restriction shall remain in effect for the periods of time specified herein. The
covenants against discrimination shall remain in effect in perpetuity. City is deemed the
beneficiary of the terms and provisions of this Restriction 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 Restriction and the
covenants running with the land have been provided. This Restriction and the covenants herein
shall run in favor of City, without regard to whether City has been, remains or is an owner of any
land or interest therein in the Property or in the Project Area. City shall have the right, if the
Restriction or covenants are breached, to exercise all rights and remedies, and to maintain any
actions or suits at law or in equity or other proper proceedings to enforce the curing of such
breaches to which it or any other beneficiaries of this Restriction and covenants may be entitled.
b. Acceleration. The whole of the Note Amount (as defined in
Section 1.2.b. of the Loan Agreement) and all other payments due under the Homebuyer Loan
shall become due and immediately payable to City by Homebuyer upon the occurrence of any
one of the following events of acceleration;
(i) Homebuyer, in Hornebuyer's sole discretion, elects to Transfer the
Property for a price in excess of an Affordable Housing Cost, and Transfers the Property;
(ii) Homebuyer makes a Prohibited Transfer of title to or any interest
in the Property in violation of this Restriction;
(iii) Homebuyer refinances any lien or encumbrance to which City
Deed of Trust is subordinate (each such lien, a "First Lien") for a loan amount in excess of the
then current loan balance secured by such lien or encumbrance and loan closing costs;
(iv) Homebuyer fails to occupy the Property as Homebuyer's principal
residence pursuant to Section 7 of the Regulatory Agreement or is in Default of any other
obligation under the Loan Agreement;
(v) Homebuyer has an Ownership Default violating any affordable
housing terms or provisions of this Restriction.
12. Hardship. At the request of Homebuyer, and for a specific occasion, City may,
in its sole and absolute discretion, in writing waive the requirements of Section 11, subparagraph
(b) and defer repayment and/or extend the term of the Note. Any waiver or deferment shall be
on a case -by -case basis, and no future rights for waiver or deferment shall arise or be implied.
Notwithstanding the foregoing„ Homebuyer may, upon written approval by City, refinance any
First Lien with a fixed rate loan for a loan amount equal to or less than the then current loan
balance secured by such First Lien with no reduction in term.
13. Reserved.
9
EXHIBIT B
14. Compliance with Laws; Governing Law. Homebuyer hereby agrees to comply
with all applicable ordinances, rules, and regulations of City. Nothing herein is intended to be,
nor shall it be deemed to be, a waiver of any City ordinance, rule, or regulation. This Restriction
shall be governed by the laws of the State of California. Any legal action brought under this
declaration must be instituted in the Superior Court of the County of Orange, State of California,
or in the Federal District Court in the Central District, Santa Ana Division,
15. Indemnification. Homebuyer shall pay for, defend, indemnify and hold harmless
City and the City and their respective officers, officials, agents, employees, representatives, and
volunteers from and against any loss, liability, claim, or judgment relating in any manner to
Homebuyer's use of the Property or Homebuyer's violation of this Restriction. Homebuyer shall
remain fully obligated for the payment of taxes, liens and assessments related to the Property.
There shall be no reduction in taxes for Homebuyer, nor any transfer of responsibility to City to
make such payments, by virtue of this Restriction.
lb. Insurance. Homebuyer shall maintain, during the term of this Restriction, an
all-risk property insurance policy insuring the Property in an amount equal to the full
replacement value of the structures on the Property. The policy shall contain a statement of
obligation on behalf of the carrier to notify the City 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. Homebuyer shall transmit a copy of the certificate of
insurance to City within thirty (30) days of the effective date of this Restriction, and Homebuyer
shall annually transmit to City a copy of the certificate of insurance, signed by an authorized
agent of the insurance carrier setting forth the general provisions of coverage. The copy of the
certificate of insurance shall be transmitted to City at the address set forth in Section 24 hereof.
The form, content and issuer of any certificate of insurance approved by City.
17. Defaults. Failure or delay by either party to perform any term or provision of this
Restriction which is not cured within thirty (30) days after receipt of notice from the other party
constitutes a default under this Restriction; provided, however, that if such default is of the
nature requiring more than thirty (30) days to cure, the defaulting party shall avoid default
hereunder by commencing to cure within such thirty (30) day period, and thereafter diligently
pursuing such cure to completion. The party who so fails or delays must immediately commence
to cure, correct or remedy such failure or delay, and shall complete such cure, correction or
remedy with diligence. The injured party shall give written notice of default to the party in
default, specifying the default complained of by the injured party. Except as required to protect
against further damages, the injured party may not institute proceedings against the party in
default until thirty (30) days after giving such notice. Failure or delay in giving such notice shall
not constitute a waiver of any default, nor shall it change the time of default.
18. Non -Waiver. Failure to exercise any right City may have or be entitled to, in the
event of default hereunder, shall not constitute a waiver of such right or any other right in the
event of a subsequent default.
19. Further Assurances. Homebuyer shall execute any further documents consistent
with the terms of this Restriction, including documents in recordable form, as City shall from
10
EXHIBIT B
time to time find necessary or appropriate to effectuate its purposes in entering into this
Restriction.
20. Governing Law. Homebuyer hereby agrees to comply with all ordinances, rules
and regulations of City and the City. Nothing in this Restriction is intended to be, nor shall it be
deemed to be, a waiver of any City ordinance, rule or regulation. This Restriction shall be
governed by the laws of the State of California. Any legal action brought under this Restriction
must be instituted in the Superior Court of the County of Orange, State of California, or in the
Federal District Court in the Central District of California, Santa Ana Division.
21. Amendment of Restriction. No modification, rescission, waiver, release or
amendment of any provision of this Restriction shall be made except by a written agreement
executed by Homebuyer and City.
22. City May Assign. City may, at its option, assign its rights hereunder without
obtaining the consent of Homebuyer.
23. Homebuyer Assignment Prohibited. In no event shall Homebuyer assign or
transfer any portion of this Restriction without the prior express written consent of City, which
consent shall be given by City only in the event that City determines that the assignee or
transferee is a Low or Moderate Income Household, that the assignee's or transferee's monthly
housing payments are at an Affordable Housing Cost, and that the assignee or transferee has
expressly assumed this Restriction by execution of a written assignment document to be
provided by City. This section shall not affect or diminish City's right to assign all or any
portion of its rights hereunder.
24. Notices. Any notices, requests or approvals given under this Restriction from one
party to another may be personally delivered or deposited with the United States Postal Service
for mailing, postage prepaid, registered or certified mail, return receipt requested to the following
address:
To Homebuyer:
Santa Ana, CA 92704
To City: Housing City
City of Santa Ana
20 Civic Center Plaza (M-37)
Santa Ana, California 92701
Attn: Housing Manager
Either party may change its address for notice by giving written notice thereof to the
other party.
11
EXHIBIT B
25. Attorneys' Pees and Costs. In the event that any action is instituted to enforce
payment or performance under this Restriction, the parties agree the non -prevailing party shall be
responsible for and shall pay all costs and all attorneys' fees incurred by such prevailing party in
enforcing this Restriction.
26. Entire Agreement. This Restriction, together with the Loan Agreement and all
attachments thereto and hereto, constitutes the entire understanding and agreement of the parties.
This Restriction integrates all of the terms and conditions mentioned herein or incidental thereto,
and supersedes all prior negotiations, discussions and previous agreements between the City and
Homebuyer concerning all or any part of the subject matter of this Restriction.
[Signature block begins on follow page.]
12
EXHIBIT B
IN WITNESS WHEREOF, the parties have executed this Restriction as of the date set
forth above.
CITY:
ATTEST:
HOMEBUYER:
CITY OF SANTA ANA
By: By:
City Cleric City Manager
Dated: Dated:
APPROVED AS TO FORM:
City Attorney
Dated:
RECOMMENDED FOR APPROVAL:
By:
Executive Director
Community Development Agency
13
EXHIBIT B
Exhibit A
Legal Description
14
EXHIBIT B
EXHIBIT C
CITY DEED OF TRUST
55394,001 01\42347096.1
DEED OF TRUST WITH ASSIGNMENT OF RENTS
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
City of Santa Ana )
20 Civic Center Plaza (M-37)
Santa Ana, California 92702
Attn: Housing Manager
This document is exempt from payment of a recording fee
pursuant to Government Code Sections 27383 and 6103.
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(SHORT FORM)
This DEED OF TRUST is made as of between
herein called TRUSTOR, whose address is
herein called TRUSTEE, and the CITY OF SANTA ANA, a charter city and
municipal corporation, herein called BENEFICIARY.
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that property
in the City of Santa Ana, County of Orange, State of California, described as:
SEE EXHIBIT 1 ATTACHED HERETO AND MADE A PART HEREOF.
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 apply such rents,
issues and profits for the purpose of securing (1) that Promissory Note dated concurrently
herewith, made by Trustor in favor of Beneficiary, and extensions or renewals thereof, in the
principal sum of $ , with the balance of the indebtedness, due and payable on
occurrence of an event of acceleration as defined in the Promissory Note, (2) the performance of
each agreement of Trustor incorporated by reference or contained herein, and (3) payment of
additional sums and interest thereon which may hereafter be loaned to Trustor, or his successors
or assigns, when evidenced by a promissory note or notes reciting that they are secured by this
Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the property above
described, Trustor expressly makes each and all of the agreements, and adopts and agrees to
perform and be bound by each and all of the terms and provisions set forth in subdivision A, and
it is mutually agreed that each and all of the terms and provisions set forth in subdivision B of
the fictitious deed of trust recorded in Orange County August 17, 1964, and in all other counties
August 18, 1964, in the book and at the page of Official Records in the office of the county
recorder of the county where said property is located, noted below opposite the name of such
county, namely:
Exhibit C
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
Alameda
1289
556
Kings
858
713
Placer
1028
379
Sierra
38
187
Alpine
3
130-31
Lake
437
110
Plumas
166
1307
Siskiyou
506
762
Amador
133
438
Lassen
192
367
Riverside
3778
347
Solano
1287
621
Butte
1330
513
Los Angeles
T3878
874
Sacramento
5039
124
Sonoma
2067
427
Calaveras
195
338
Madera
911
136
San Benito
300
405
Stunislaus
1970
56
Colusa
323
391
Marin
1849
122
S. Bernardino
6213
768
Sutter
655
585
Contra Costa
4684
1
Mariposa
90
453
S, Francisco
A-304
596
Telrama
457
183
Del Norte
101
549
Mendocino
667
99
S. Joaquin
2855
283
Trinity
108
595
El Dorado
704
635
Merced
1660
753
S.Luis Obispo
1311
137
Tulnre
2530
109
Fresno
5052
623
Modoc
191
93
San Mateo
4778
175
Tuolmnne
177
160
Glenn
469
76
Mono
69
302
Santa Barbara
2065
881
Ventura
2607
237
Humboldt
801
83
Monterey
357
239
Santa Clara
6626
664
Yolo
769
16
Imperial
1189
701
Napa
704
742
Santa Cruz
1638
607
Yuba
398
693
1nyo
165
672
Nevada
363
94
Shasta
800
633
KOM
3756
690
Orange
7182
t8
San Diego
1964
149774
Series 5
shall inure to and bind the parties hereto, with respect to the property above described. Said
agreements, terms and provisions contained in said subdivisions A and B, (identical in all
counties, and printed on pages 3 and 4 hereof) are by the within reference thereto, incorporated
herein and made a part of this Deed of Trust for all purposes as fully as set forth at length herein,
and Beneficiary may charge for a statement regarding the obligation secured hereby, provided
the charge therefor does not exceed the maximum allowed by law.
The undersigned Trustor also agrees to all terms set forth in Exhibit 2, 3 and 4, attached
hereto and incorporated herein by reference.
The undersigned Trustor, requests that a copy of any notice of default and any notice of
sale hereunder be mailed to him/her at the address hereinbefore set forth.
TRUSTOR;
Exhibit C
Address:
EXHIBIT 1 TO DEED OF TRUST
LEGAL DESCRIPTION
Exhibit C
EXHIBIT 2 TO DEED OF TRUST
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded
in each county in California as stated in the foregoing Deed of Trust and incorporated by
reference in said Deed of Trust as being a part thereof as if set forth at length therein.
A. To protect the security of this Deed of Trust, Trustor agrees:
(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 and workmanlike
manner any building which may be constructed, damaged or destroyed thereon and to pay when
due all claims for labor performed and materials furnished therefor; 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; to cultivate irrigate, fertilize, fumigate, prune and 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, maintain and deliver to Beneficiary fire insurance satisfactory
to and with loss payable to Beneficiary. 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.
(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 thereof, may: 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; appear in
and defend any action or proceeding purporting to affect the security hereof or the rights or
powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance,
charge or lien which in the judgment of either appears to be prior or superior hereto; and, in
exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable
fees.
Exhibit C
(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 by the Beneficiary not to
exceed the maximum allowed by law at the time when said statement is demanded.
B. It is mutually agreed:
(1) 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 who may apply or release such monies received by him in the same manner and with
the same effect as above provided for disposition of proceeds of fire or other insurance.
(2) 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.
(3) That at any time or from time to time, without liability therefor and
without notice, upon written request of Beneficiary and presentation of this Deed and said note
for endorsement, and without affecting the personal liability of any person for payment of the
indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the
making of any map or plat thereof; join in granting any easement thereon; or join in any
extension agreement or any agreement subordinating the lien or charge hereof.
(4) That upon written request of Beneficiary stating that all sums secured
hereby have been paid, and upon surrender of this Deed and said note to Trustee for cancellation
and retention or other disposition as Trustee in its sole discretion may choose and upon payment
of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The
recitals in such reconveyance or 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."
(5) That as additional security, Trustor hereby gives to and confers upon
Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the
rents, issues and profits of 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 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.
Exhibit C
(6) That upon default Truster in payment of any indebtedness secured hereby
or in performance of any agreement hereunder, 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 of election to cause to be sold said property, which
notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this
Deed, said note and all documents evidencing expenditures secured hereby.
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
purchaser 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 as hereinafter
defined, may purchase 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 suns then secured hereby; and the
remainder, if any, to the person or persons legally entitled thereto.
(7) 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 is recorded and
the name and address of the new Trustee.
(8) That this Deed applies to, inures to the benefit of, and binds all parties
hereto, their hens, legatees, devisees, administrators, executors, successors and assigns. The
term Beneficiary shall mean the owner and holder, including pledgees, of the note secured
hereby, whether or not named as Beneficiary herein. In this Deed, whenever the context so
requires, the masculine gender includes the feminine and/or neuter, and the singular number
includes the plural.
(9) That Trustee accepts this Trust when this Deed, 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 other Deed of Trust or of any action or proceeding in
which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
Exhibit C
EXHIBIT 3
DO NOT RECORD
REQUEST FOR FULL RE, CONVEYANCE
TO ,TRUSTEE
The undersigned is the legal owner and holder of the note or notes, and of all other
indebtedness secured by the foregoing Deed of Trust. Said note or notes, together with all other
indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are
hereby requested and directed on payment to you of any sums owning owing to you under the
terms of said Deed of Trust, to cancel said note or notes above mentioned, and all other
evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with
the said Deed of Trust, and to reconvey, without warranty, to the parties designated by the terms
of said Deed of Trust, all the estate now held by you under the same.
Dated:
Please mail Deed of Trust,
Note and Reconveyance to
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be
delivered to the Trustee for cancellation before reconve ante will be made.
DEED OF TRUST
with power of sale
TRUSTEE
Exhibit C
EXHIBIT 4
RIDER TO DEED OF TRUST
This RIDER TO DEED OF TRUST is made and delivered pursuant to and in
implementation of the Homebuyer Loan Agreement entered by and between the Trustor and the
Beneficiary dated concurrently herewith ("Agreement"), a copy of which is on file as a public
record with the Beneficiary at 20 Civic Center Plaza, Santa Ana, California 92701 and is
incorporated herein by reference. Unless definitions of terms have been expressly set out at
length herein, each term shall have the same definition as set forth in the Agreement. Trustor
and Beneficiary further covenant and agree as follows:
1. Acceleration of Payment. The whole of the Note Amount and all other
payments due hereunder and under the Agreement shall become due and be immediately payable
to the Beneficiary by the Trustor upon the occurrence of any one of the following events of
acceleration:
(a) the sale or transfer of the Property (or any part thereof) by any means,
including, without limitation, the lease, exchange or other disposition of the Property or any
interest therein, whether voluntary or involuntary, except (A) a sale of the Property to a qualified
Low Income Household at an Affordable Housing Cost with the Beneficiary's prior written
approval accomplished in strict conformity with Section 4 of the Agreement, or (B) the transfer
of the Property solely as a result of the marriage, divorce, incompetence or death of one or more
individuals constituting the Trustor, so long as the transferee(s) give written notice supported by
reasonable evidence of such event to the Beneficiary within thirty (30) days of its occurrence and
the transferee(s) assume(s) the Trustor's obligations under the Agreement, by execution of an
assignment and assumption agreement to be provided by the Beneficiary, or (C) a sale or transfer
which under federal law would not, by itself, permit the Beneficiary to exercise a due on sale or
due on encumbrance clause;
(b) the Trustor refinances any purchase money lien or encumbrance to which
the Authority Deed of Trust is subordinate (each such lien, a "First Lien") for a loan amount in
excess of the then current loan balance secured by such lien or encumbrance and loan closing
costs; and/or
(c) the Trustor fails to own and occupy the Property as thew principal
residence pursuant to Section 7 of the Agreement or is in Ownership Default as defined in
Section 18 of the Agreement.
At the request of the Trustor, and for a specific occasion, the Beneficiary may, in
its sole and absolute discretion, in writing waive the requirements of these subparagraphs. Any
waiver or deferment shall be on a case by case basis, and no future rights for waiver or deferment
shall arise or be implied. Notwithstanding the foregoing, the Trustor may, upon prior written
approval by the Beneficiary, refinance any First Lien for a loan amount equal to or less than the
then current loan balance secured by such First Lien.
2. Reserved.
Exhibit C
3. Sale to Low Income Household. During the Affordability Period, the Note
Amount will not become due and payable, if Trustor sells or otherwise conveys the Property to a
Low Income Household at an Affordable Sales Price (an "Eligible Household"), and the
purchaser assumes the Note and the Agreement by an assignment and assumption agreement
which is reasonably acceptable to the Beneficiary.
For the purposes of this Authority Deed of Trust, the Note, and the Agreement, "Low
Income" and "Low Income Households" means low income households as defined in Health &
Safety Code Section 50079.5.
3.1. Affordable Sales Price and Affordable Housing Cost — Low Income
Household.
"Affordable Housing Cost" shall be as defined in Health & Safety Code Section 50052.5
(or its successor statute) and the implementing regulations thereto promulgated by the Housing
and Community Development Department of the State of California.
Notwithstanding the provisions of this Section 3, if the Property is sold during the
Affordability Period by the Trustor to a Low Income Household and the Affordable Sales Price
does not exceed an "Affordable Housing Cost" to such Buyer, then so long as the Trustor is not
in default (either Ownership Default or Maintenance Default) of the Agreement, this Note may
be assumed by the eligible Buyer by an assignment and assumption agreement which is
reasonably acceptable to the Beneficiary. Upon the effective date of such assignment and
assumption, the assigning Trustor shall no longer be liable for any further obligations under the
Agreement, the Note or the City Deed of Trust that accrue after the date of such assignment and
assumption. In order to verify the Buyer's status as a Low Income Household, the Trustor shall
submit to the Beneficiary the identity of the proposed Buyer and adequate information
evidencing the income and household size of the proposed Buyer. Said income information shall
be submitted together with the notice of proposed sale pursuant the Agreement not less than
thirty (30) days prior to opening of escrow for the proposed sale and shall include original or true
copies of pay stubs, income tax records or other financial documents in order that the Holder
may determine and verify the household income of the proposed Buyer to determine whether the
Buyer is a Low Income Household, and whether the Property is being transferred to such Buyer
at an Affordable Housing Cost. If the Holder is unable to verify the Buyer's income as provided
herein prior to the proposed sale, then the Buyer's income shall be deemed to exceed the
maximum allowable income limit for Eligible Persons and Families.
4. Subordination. Except as provided otherwise herein, the provisions of the
Agreement, the Notice of Affordability Restrictions, this Rider and Deed of Trust, and the
Affordable Housing Resale Restriction, and the obligations therein, shall be subordinate only to
the First Lien on the Property held by the Lender and, if applicable, other loan(s) as approved by
the Executive Director, including lien instruments that secure other homebuyer purchase money
and/or downpayment assistance, including without limitation City, State of California, or federal
affordable housing programs, which liens shall not impair the rights of Lender, or Lender's
assignee or successor in interest or the City, if applicable, to exercise their remedies under the
First Lien in the event of default under the First Lien by the Homebuyer. Such remedies under
the First Lien include the right of foreclosure or acceptance of a deed or assignment in lieu of
Exhibit C
foreclosure. If title to the Property is transferred by foreclosure or acceptance of a deed in lieu of
foreclosure, or assignment of the First Lien to the Secretary of the Department of Housing and
Urban Development, this Agreement and the Authority Deed of Trust shall be automatically
terminated and shall have no further effect as to the Property or any transferee thereafter.
However, in no event shall this Agreement, the Deed of Trust, and the Affordable Housing
Resale Restriction, be subordinate to any First Lien on the Property securing a loan with
provisions which allow negative amortization, or to refinancing of the lien of the First Lien for a
loan amount in excess of the sum of the then current loan balance secured by the First Lien and
loan closing costs.
Trustor agrees it shall instruct the Escrow Agent for the acquisition of the
Property by Trustor that the order of recording in the escrow for the purchase of the Property by
Trustor shall occur as follows; (1) the Grant Deed, (2) the First Lien; (3) other affordable
housing loan(s), if applicable; (4) the Affordable Housing Resale Restriction; (5) the Notice of
Affordability Restrictions and (b) the Deed of Trust. City shall cause a Request for Notice of
Default to be recorded on the Property subsequent to the recordation of the First Lien deed of
trust or mortgage requesting a statutory notice of default as set forth in the California Civil Code
Section 2924b, and shall cause a request for Notice of Delinquency to be recorded on the
Property subsequent to the recordation of the First Lien deed of trust or mortgage.
IN WITNESS WHEREOF, Trustor has executed this Rider to Deed of Trust as of the
date set forth below.
TRUSTORMOMEBUYER:
Exhibit C
EXHIBIT D
CITY PROMISSORY NOTE
5 53 94.00101 \42347096.1
PROMISSORY NOTE SECURED BY DEED OF TRUST
$ Santa Ana, California
Date:
Property Address: Street, Santa Ana, CA 9270
FOR VALUE RECEIVED, the undersigned (the "Maker" or
"Homebuyer") promises to pay to the CITY OF SANTA ANA, a public body, corporate and
politic (the "Holder") at 20 Civic Center Plaza, Santa Ana, California 92701, or at such other
address as the Holder may direct from time to time in writing, the sums specified in the terms
and provisions of this Promissory Note as the "Note Amount".
1. Loan Agreement. This Promissory Note Secured by Deed of Trust (this "Note")
is made and delivered pursuant to and in implementation of the Homebuyer Loan. Agreement
entered into by and between the Holder and the Maker dated concurrently herewith
("Agreement'), a copy of which is on file as a public record with the Holder. The Agreement is
incorporated herein by this reference. The Maker acknowledges that but for the execution of this
Note, the Holder would not enter into the Agreement or make the loan contemplated therein.
Unless definitions of terms have been expressly set out at length herein, each term shall have the
same definition as set forth in the Agreement.
2. Term. The term of the Note shall be forty-five (45) years from the Homebuyer
Loan Date ("Term"),
3. Note Amount. The sums due and payable pursuant to the terms and provisions of
this Note consists of the Homebuyer Loan Amount (the "Note Amount"). Maker shall pay to the
City the principal amount of Dollars ($.) (the "Homebuyer Loan
Amount"), with zero percent (0%) interest thereon. [The Homebuyer Loan Amount shall be
determined as the difference between the Affordable Sates Price and the fair market value of the
Property, as determined in. accordance with the Homebuyer Loan Agreement and the Regulatory
Agreement Imposing Affordable Housing Covenants and Restrictions (Density Bonus), which
restricts the sale and resale of Affordable Units.]
4. Homebuyer Loan Amount; Interest Deferred Until Acceleration. The
Homebuyer Assistance Loan Amount shall accrue zero percent (0%) interest unless and until an
event of acceleration occurs as set forth in Section 6.
5. Homebuyer Loan Amount; Time of Payment. In the event that the Homebuyer
Loan Amount does not become due and payable prior to the forty-fifth (45`11) Anniversary
("Maturity Date") as set forth below in Section 6, the full amount of the Promissory Note shall
be considered mature and the obligation to pay shall be extinguished as of the Maturity Date.
6. Acceleration. The whole of the Note Amount and all other payments due
hereunder and under the Agreement shall become due and be immediately payable to the Holder
by the Maker upon the occurrence of any one of the following events of acceleration:
Exhibit D
(a) the sale or transfer of the Property (or any part thereof) by any means,
including, without limitation, the lease, exchange or other disposition of the Property or any
interest therein, whether voluntary or involuntary, except (i) a sale of the Property to a qualified
Low Income Household at an Affordable Housing Cost with the City's prior written approval
accomplished in strict conformity with [Section 4] of the Agreement, or (ii) the transfer of the
Property solely as a result of the marriage, divorce, incompetence or death of one or more
individuals constituting the Homebuyer, so long as the transferee(s) give written notice
supported by reasonable evidence of such event to the Authority within thirty (30) days of its
occurrence and the transferee(s) assume(s) the Homebuyer's obligations under the Agreement,
by execution of an assignment and assumption agreement to be provided by the Authority, or
(iii) a sale or transfer which under federal law would not, by itself, permit the City to exercise a
due on sale or due on encumbrance clause;
(b) the Maker refinances any purchase money lien or encumbrance to which
the City Deed of Trust is subordinate (each such lien, a "First Lien") for a loan amount in excess
of the then current loan balance secured by such lien or encumbrance and loan closing costs;
and/or
(c) the Maker (and all co -signors and co -mortgagors, if any) fails to own and
occupy the Property as their principal residence pursuant to [Section 7] of the Agreement or is in
Ownership Default as defined in [Section 1 S] of the Agreement.
At the request of the Maker, and for a specific occasion, the Holder may, in its
sole and absolute discretion, in writing waive the requirements of these subparagraphs and defer
repayment and/or extend the term of this Note. Any waiver or deferment shall be on a case by
case basis, and no future rights for waiver or deferment shall arise or be implied.
Notwithstanding the foregoing, the Maker may, upon prior written approval' by the Holder,
refinance any First Lien for a loan amount equal to or less than the then current loan balance
secured by such First Lien.
7. Reserved.
8. Right of First Refusal. Homebuyer shall notify the Holder of any desire to sell
the Property immediately. Homebuyer shall also immediately notify Developer (Habitat for
Humanity of Orange County) as required by the terms of the Agreement and documents executed
between Homebuyer and Developer provide Developer an option and the right of first refusal to
purchase the Property.
9. Sale to Low Income Household at Affordable Housing Cost. During the
Affordability Period, the Note will not become due and payable in connection with such sale, if
the Maker sells or otherwise conveys the Property to an Eligible Household, and the purchaser
assumes this Note and the Agreement by an assignment and assumption agreement which is
reasonably acceptable to the Holder.
9.1. Affordable Housing Cost — Low Income Household. The Maker has qualified
as and each eligible and qualified successor -in -interest to the Maker shall be a Low Income
Household. The term "Affordable IIousing Cost" as used herein and for each Homebuyer (and
2
Exhibit D
all successors thereto during the Affordability Period) shall be as defined in Health & Safety
Code Section 50079.5 (or its successor statute) and the implementing regulations thereto
promulgated by the Housing and Community Development Department of the State of
California; provided, however, that the term Affordable Housing Cost shall include Monthly
Housing Cost as defined in Section 6924 of Title 25 of the Regulations.
Notwithstanding the provisions of this Section 9.1, if the Property is sold during
the Affordability Period by the Maker to an Eligible Household, and the Sales Price does not
exceed an "Affordable Housing Cost" to such Buyer, then so long as the Maker is not in default
(either Ownership Default and/or Maintenance Default) of the Agreement, this Note may be
assumed by the Eligible Household by an assignment and assumption agreement which is
reasonably acceptable to the Holder. Upon the effective date of such assignment and
assumption, the assigning Maker shall no longer be liable for any further obligations under the
Agreement or this Note that accrue after the date of such assignment and assumption. In order to
verify the Buyer's status as a Low Income Household, the Maker shall submit to the Holder the
identity of the proposed Buyer and adequate information evidencing the income and household
size of the proposed Buyer. Said income information shall be submitted together with the notice
of proposed sale pursuant to Section 2 of the Agreement not less than thirty (30) days prior to
opening of escrow for the proposed sale and shall include original or true copies of pay stubs,
income tax records or other financial documents in order that the Holder may verify the
household income of the proposed Buyer to determine whether the Buyer is a Low Income
Household, and whether the Property is being transferred to such Buyer at an Affordable
Housing Cost. If the Holder is unable to verify the Buyer's income as provided herein prior to
the proposed sale, then the Buyer's income shall be deemed to exceed the maximum allowable
income limit for an Eligible Household.
10. Security for Note. This Note shall be secured by a subordinate deed of trust and
rider thereto of even date herewith encumbering the Property (the "City Deed of Trust"),
executed by the Maker, as Trustor, in favor of the Holder, as beneficiary.
11. Prepayment of Note. The Maker may prepay this Note to the Holder, provided
that any prepayment must be in full and not in part. Prepayment shall be treated in the same
manner as refinancing of the Property. In any event, the Affordable Housing Resale Restrictions
shall continue in full force and effect, notwithstanding such prepayment.
12. Holder May Assign. The Holder may, at its option, assign its right to receive
payment under this Note without necessity of obtaining the consent of the Maker.
13. Maher Assignment Prohibited. In no event shall the Maker assign or transfer
any portion of this Note, the Note Amount and/or the Agreement without the prior express
written consent of the Holder, as provided in Section 9.
14. Joint and Several. The undersigned, if more than one, shall be jointly and
severally liable hereunder.
15. Attorneys' Fees and Costs. In the event that any action is instituted to enforce
payment under this Note, the parties agree the non -prevailing party shall be responsible for and
3
Exhibit D
shall pay to the prevailing party all count costs and all attorneys' fees incurred in enforcing this
Note.
16. Amendments. This Note may not be modified or amended except by an
instrument in writing expressing such intention executed by the parties sought to be bound
thereby, which writing must be so firmly attached to this Note so as to become a permanent part
thereof.
17. Maker's Waivers. The Maker waives any rights to require the Holder to:
(a) demand payment of amounts due (known as "presentment"), (b) give notice that amounts due
have not been paid (known as "notice of dishonor"), and (c) obtain an official certification of
nonpayment (known as "protest").
18. Notice. Any notice that must be given to the Maker under this Note shall be
given by personal delivery or by mailing it by certified mail addressed to the Maker at the
Property address above or such other address, as Maker shall direct from time to time in writing.
Failure or delay in giving any notice required hereunder shall not constitute a waiver of any
default or late payment, nor shall it change the time for any default or payment. Any notice to
the Holder shall be given by certified mail at the address stated above.
19. Successors Bound. This Note shall be binding upon the parties hereto and their
respective heirs, successors and assigns.
20. Effect of Foreclosure. If title to the Property is transferred by foreclosure or
acceptance of a deed in lieu of foreclosure, or assignment of the First Lien to the Secretary of the
Department of Housing and Urban Development, the Agreement, the Affordable Housing Resale
Restriction executed pursuant to the Agreement, Notice of Affordability Restrictions and the
Authority Deed of trust shall be automatically terminated and shall have no further effect as to
the Property or any transferee thereafter.
IN WITNESS WHEREOF, Maker has executed this Note as of the date set forth below.
MAKER and HOMEBUYER:
Lo
4
Exhibit D
EXHIBIT E
NOTICE OF AFFORDABILITY RESTRICTIONS
55394.00101 \42347096.1
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
City of Santa Ana )
20 Civic Center Plaza (M-37) )
Santa Ana, California 92702 )
Attn: Housing Manager )
This document is exempt from
payment of a recording fee
pursuant to Government Code
Sections 27383 and 6103.
NOTICE OF AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY
This Notice of Affordability Restrictions on Transfer of Property (or "Notice
of Affordability Restrictions") is executed and recorded pursuant to the Regulatory
Agreement Imposing Affordable Housing Covenants and Restrictions (Density
Bonus), recorded on or about , 2024, in the Official Records of San
Orange County, against that certain real property generally located
at ,in the City of Santa Ana, California ("City") as legally
described in Exhibit A hereto ("Property"). The City of Santa Ana, a charter city
and municipal corporation ("City"), and
(collectively "Homebuyer") have entered into
that certain Homebuyer Loan Agreement dated concurrently herewith
("Homebuyer Loan Agreement").
1. The Homebuyer Loan Agreement provides for affordability
restrictions and restrictions on the transfer of the Property, as more particularly set
forth in the Homebuyer Loan Agreement. A copy of the Homebuyer Loan
Agreement is on file with City as a public record and is deemed incorporated
herein. Reference is made to the Homebuyer Loan Agreement with regard to the
complete text of the provisions of such agreement and all defined terms therein,
which provides for affordability restrictions and restrictions on the transfer of the
Property.
2. The Homebuyer Loan Agreement generally provides for City to lend
to Homebuyer and for Homebuyer to borrow from City a loan in order to assist
1
EXHIBIT E
Homebuyer's purchase of the Property pursuant to the Program and subject to the
terms and conditions set forth herein. For a period commencing upon the date on
which Homebuyer acquires fee title to the Property and terminating on the forty-
fifth (45th) anniversary thereof, the Property may only be transferred to another
eligible, qualified Low Income Household at an Affordable Housing Cost; such
restrictions are set forth at greater length in a document entitled Affordable
Housing Resale Restriction (Conditions, Covenants, and Restrictions Affecting
Real Property and the Resale, Ownership, Occupancy, Maintenance, and Other
Matters Related to Real Property), substantially in the form of Exhibit "D" to the
Homebuyer Loan Agreement ("Affordable Housing Resale Restriction"), which
has been entered into by and between City and Homebuyer, and which is expected
to be recorded substantially concurrently herewith among the Official Records of
Orange County, California. The Affordable Housing Resale Restriction and the
Homebuyer Loan Agreement are deemed to be incorporated herein by reference.
3. Section 4 of the Affordable Housing Resale Restriction provides as
follows:
"4. Permitted Sales of the Property. City hereby permits sales of
the Property to proposed Transferees who are Low Income Households, and are
approved in accordance with this Section 4, provided the Sales Price does not
exceed an Affordable Housing Cost to such proposed Transferee ("Permitted
Transfers"). In the event that Homebuyer desires to Transfer the Property during
the Affordability Period, prior to the Transfer the owner shall notify City by
delivering a Notice of Intent to Transfer to City, which shall indicate the identity of
the proposed Transferee who desires to purchase the Property, whether the
purchaser is a Low or Moderate Income Household, and whether the sales price is
at an Affordable Housing Cost. In addition to Homebuyer's and the proposed
Transferee's delivery of the Notice of Intent to Transfer, the following procedure
shall apply:
a. Notice to City. Homebuyer shall send the Notice of Intent to
Transfer to City at the address set forth in [Section 28] of the Loan Agreement.
b. Qualification of Proposed Transferee. The proposed
Transferee shall provide City with sufficient information in the form provided by
City including without limitation, a certification as to the income and family size
of the proposed Transferee, for City to determine if the proposed Transferee is a
Low Income Household, and the purchase price is at an Affordable Housing Cost.
2
EXHIBIT E
C. Certificates from Parties. Homebuyer and proposed
Transferee each shall certify in writing, in a form acceptable to City, that the
Transfer shall be closed in accordance with, and only with, the terms of the sales
contract and other documents submitted to and approved by City and that all
consideration delivered by the proposed Transferee to owner has been fully
disclosed to City. The written certificate shall also include a provision that in the
event a Transfer is made in violation of the terms of this Restriction or false or
misleading statements are made in any documents or certificate submitted to City
for its approval of the Transfer, City shall have the right to file an action at law or
in equity to make the parties terminate and/or rescind the sales contract and/or
declare the sale void notwithstanding the fact that the Transfer may have closed
and become final as between Homebuyer and Transferee.
d. Written Consent of City Required Before Transfer. During
the Affordability Period, the Property, and any interest therein, shall not be
conveyed by any Transfer except with the express written consent of City, which
consent shall be given only if the Transfer is in accordance with the provisions of
this Restriction. This provision shall not prohibit the encumbering of title for the
sole purpose of securing financing of the purchase price of the Property.
e. Notice of Prohibited Transfer. Within twenty (20) days after
receiving notification of a proposed Transfer in accordance with Section 4a., City
shall determine and give notice to Homebuyer as to whether the proposed Transfer
is a Permitted Transfer or Prohibited Transfer, or whether the Transfer would cause
an acceleration under the Note under Section 1.f. of the Agreement, in which case,
upon Homebuyer's payment of the Contingent Equity Participation Amount as set
forth in Section 3 of the Agreement such Transfer would be deemed a Permitted
Transfer. In the event that the proposed Transfer is a Prohibited Transfer, such
notice to Homebuyer shall specify the nature of the Prohibited Transfer. If the
violation is not corrected to the satisfaction of City within ten (10) days after the
date of the notice, or within such further time as City determines is necessary to
correct the violation, City may declare a Default under this Restriction. Upon the
declaration of a Default, City may apply to a court of competent jurisdiction for
specific perforinance of this Restriction, for an injunction prohibiting a proposed
sale or Transfer in violation of this Restriction, for a declaration that the Prohibited
Transfer is void, or for any such other relief as may be appropriate.
f. Delivery of Documents. Upon the close of the proposed
Transfer, Homebuyer and Transferee, as applicable, shall provide the City with a
copy of the final sales contract, settlement statement, escrow instructions, all
certificates required by this Section 4 and any other documents City may request."
3
EXHIBIT E
4. The restrictions contained in the Affordable Housing Resale
Restriction commence upon the date on which Homebuyer acquires fee title to the
Property and terminate on the forty-fifth (45th) anniversary thereof.
5. The commonly known address for the Property is
Street, Santa Ana, California 92701.
6. The assessor's parcel number for the Property is APN
7. The legal description of the Property is attached hereto as Exhibit A,
and is incorporated herein by reference.
8. The Affordable Housing Resale Restriction, which includes the
affordability restrictions referenced above, is expected to be submitted for
recordation in the Office of the Orange County Recorder contemporaneously with
this Notice of Affordability Restrictions.
9. The Homebuyer Loan Agreement and the Affordable Housing Resale
Restriction both remain in full force and effect and are not amended or altered in
any manner whatsoever by this Notice of Affordability Restrictions.
10. Capitalized terms shall have the meaning established under the
Homebuyer Loan Agreement (including all Attachments thereto) excepting only to
the extent as otherwise expressly provided under this Notice of Affordability
Restrictions.
11. Persons having questions regarding this Notice of Affordability
Restrictions, the Homebuyer Loan Agreement or the Attachments thereto
(including the Affordable Housing Resale Restriction) should contact City at its
offices (20 Civic Center Plaza, Santa Ana, California 92701, or such other address
as may be designated by City from time to time).
HOMEBUYER:
LE
4
EXHIBIT E
CITY:
ATTEST:
CITY OF SANTA ANA
By: By:
City Clerk City Manager
Dated: Dated:
APPROVED AS TO FORM:
City Attorney
ME
Dated:
RECOMMENDED FOR APPROVAL:
By:
Executive Director
Community Development Agency
EXHIBIT E
EXHIBIT F
INCOME VERIFICATION FORM
55394.00101 \42347096.1
EXHIBIT "F"
INCOME VERIFICATION FORM
Inclusionary Unit Address:
Head of Household (Print Name):
Current Address (if
different from above):
Telephone Number: Home:
Email address:
Date of Birth:
Work:
Social Security # or TIN:
Household Composition
Cell:
List All Household Members Living in the Inclusionary Unit
Dependent Social Security #
Name Sex Age I (YIN) I or Taxpayer ID #
List additional household members on a separate sheet of paper.
Income Verification Form Page 1
Santa Ana, California
EXHIBIT "F"
INCOME VERIFICATION FORM
Monthly Gross Income *
List All Sources of Income of All Household Members Living in the Inclusionary Unit
Part 1: Earned Income
Other
Head of
Household
Household
Members
Total
1.
Gross wages, before payroll deductions and
$
$
$
including overtime pay, commissions, fees, tips
and bonuses.
2.
Net income from self employment, independent
$
$
$
contractor work or a business.
3.
Social security and any payments from annuities,
$
$
$
insurance policies, pension/retirement funds,
disability or death benefits received periodically.
4.
Payment in lieu of earnings, such as
$
$
$
unemployment, disability compensation, worker's
compensation and severance pay.
5.
Public assistance, welfare payments
$
$
$
6.
Alimony, child support, other periodic allowances
$
$
$
7.
Regular pay, special pay and allowances of
$
$
$
members of the Armed Forces
8.
Other
$
$
$
Subtotal: Monthly Earned Income $
Total Monthly Earned Income x 12 = $ Total Annual Household Gross Earned Income
Income Verification Form Page 2
Santa Ana, California
EXHIBIT "1="
INCOME VERIFICATION FORM
Monthly Gross Income *
List All Sources of Income of All Household Members Living in the Inclusionary
Unit
Part 2: Investment Income
Total
Other Adult
Household
Head of
Household
Investment
Household
Members
Income
1.
Interest paid on Bank and Savings accounts
$
$
$
2.
Dividends and other payments from stocks and
$
$
$
bonds
3.
Income from real property (i.e. rental property)
$
$
$
4.
Other (describe)
$
$
$
Subtotal: Monthly Investment Income:
$
Total Monthly Investment Income x 12 = $ Total Annual Household Investment Income
*Note: The following items are not considered income: casual or sporadic gifts; amounts specifically for or in
reimbursement of medical expenses; lump sum payments such as inheritances, insurance payments, capital
gains and settlement for personal or property losses; educational scholarships paid directly to the student or
educational institution; special pay to a serviceman head of family away from home and under hostile fire;
relocation payments under federal, state or local law; foster child care payments; value of coupon allotments
for purpose of food under Food Stamp Act of 1964 which is in excess of amount actually charged the eligible
household; payments received pursuant to participation in the following programs: VISTA, Service Learning
Programs, and Special Volunteer Programs, SCORE, ACE, Retired Senior Volunteer Program, Foster
Grandparent Program, Older American Community Services Program, and National Volunteer Program to
Assist Small Business Experience.
Income Verification Form
Santa Ana, California
EXHIBIT "F
INCOME VERIFICATION FORM
Assets
List the Current Value of All Assets of All Household Members Living in the Inclusionary Unit
If the Asset generates income, that income must be specified In Part 2 above
Head of
Household
Other Adult
Household
Members
Total Value of
Value
Value
Assets
1.
Bank and Savings accounts
$
$
$
2.
Stocks and bonds
$
$
$
3.
Real property (i.e. rental property)
$
$
$
4.
Other (describe)
$
$
$
Total Asset Value $
"Note: Necessary items, such as furniture and automobiles, used for personal use are excluded from
household assets. Collections of items for hobby, investment or business purposes must be included in
household assets. If the total value of household assets exceeds $5,000, the calculation of the household's
annual income shall include the greater of the actual amount of income, if any, derived from all of the
household assets; or 10% of the total value of the assets.
Income Verification Form Page 4
Santa Ana, California
EXHIBIT "F"
INCOME VERIFICATION FORM
If the total asset value exceeds $5,000, perform the calculations in the following table. If the total asset value
is less than $5,000, the amount of investment income to be included in annual household income is $0.
Calculation of Investment Income to be Included in Annual Household Income
1.
Total Annual Household Investment Income
$
2.
Total Asset Value
$
x 10%
$
The Greater of #1 or #2 = Investment Income to be Included in Annual Household Income $
Calculation of the Household's Total Annual Income
Total Annual Household Gross Earned Income
Total Investment Income to be Included in Annual Household Income
Total Household Income
Documentation
Attach True Copies of the Relevant Documents Listed Below
Paycheck stubs from three most recent
pay periods
Employment verification
Three years Income tax returns for Title
Holders
Social security verification
Alimony/child support verification
Other (Describe)
Bank/Savings account verification
Self-employment verification
Unemployment verification
Welfare verification
Disability income verification
Income Verification Form Page 5
Santa Ana, California
EXHIBIT "F"
AFFIDAVIT
This Affidavit is made with the knowledge that it will be relied upon by and the City of Santa
Ana to determine maximum income for eligibility to purchase the Inclusionary Unit listed above. (I/we) warrant
that all information set forth in this document is true, correct and complete and based upon information (I/we)
deem reliable and based upon such investigation as (I/we) deemed necessary.
(IIWe) acknowledge that (Ilwe) have been advised that the making of any misrepresentation or misstatement in
this affidavit will constitute a material breach of (my/our) purchase agreement and will additionally enable the
seller to terminate the purchase contract and sell the lnclusionary Unit to another party.
(I/We) do hereby swear under penalty of perjury that the foregoing statements are true and correct and that
this affidavit has been executed as of the date specified below by each adult member of the household which
intends to occupy an lnclusionary Unit located at
Signature
Printed Name
Executed at
Signature
Printed Name
Executed at
,Santa Ana, California.
Date
Santa Ana, California
Date
Santa Ana, California
Affidavit Page 6
Santa Ana, California
EXHIBIT G
CERTIFICATION OF CONTINUED OCCUPANCY
55394.00 10 1 \42347096.1
EXHIBIT G
CERTIFICATION OF CONTINUED OCCUPANCY
Date:
Owner(s) Name;
Address; Santa Ana, CA
We are the Owners of an lnclusionary Unit that was produced under the requirements of the City of Santa Ana
Incluslonary Housing Ordinance. We understand and agree that the lnclusionary Unit must be used as our Primary
Residence and for no other purpose.
By this Certification, we declare under penalty of perjury that;
1, We currently occupy the Incluslonary Unit; and
2. We have occupied the lnclusionary Unit for at least ten (10) out of the past twelve (12) months; and
3. We have not used the lnclusionary Unit for any other purpose than as our Primary Residence; and
4. We are not renting or leasing any part of the lnclusionary Unit to another party.
We have attached true and accurate copies of two utility bills or other documentation evidencing our continued
occupancy of the lnclusionary Unit.
We acknowledge that any intentional or negligent misrepresentation in this Certification may result in civil liability
and/or criminal penalties including, but not limited to, fine or imprisonment, or both, and liability for monetary
damages under the provisions of Title 18, United States Code, Section 100.1, et seq.
OWNER:
Signature:
Print Name:
Date:
EXHIBIT G
SIGNATURE PAGE
W
OCCUPANCY RECERTIFICATION FORM
Signature:
Print Name:
Date:
CO.OWNER: