HomeMy WebLinkAbout80A - JOINT PH - RESO AND DDA WITH HABITAT FOR HUMANITYREQUEST FOR COUNCIL/
AGENCY ACTION
MEETING DATE:
MARCH 21, 2011
TITLE:
JOINT PUBLIC HEARING - RESOLUTIONS AND
DISPOSITION AND DEVELOPMENT AGREEMENT
WITH HABITAT FOR HUMANITY, INC.
j %
CITY MANAGER EXECUTI DIRECTOR
RECOMMENDED ACTION
CITY COUNCIL
CLERK OF COUNCIL USE ONLY:
APPROVED
? As Recommended
? As Amended
? Ordinance on 1st Reading
? Ordinance on 2nd Reading
? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
FILE NUMBER
Adopt a resolution making certain findings with respect to the consideration to be received by the
Community Redevelopment Agency pursuant to a Disposition and Development Agreement between
the Community Redevelopment Agency and Habitat for Humanity of Orange County, Inc., for the
sale of certain real property in the City of Santa Ana and approving the sale of said real property upon
the terms and conditions contained in that Agreement.
COMMUNITY REDEVELOPMENT AGENCY
Adopt a resolution approving a Disposition and Development Agreement between the Community
Redevelopment Agency and Habitat for Humanity of Orange County, Inc. for the development of
affordable, 17 single family homes at 719 and 812 North Concord, 1314 Eastwood, 4809 West
Edinger, 4010, 4018, 4030, 4106 and 4110 West McFadden, 1029 McLean, 1114 and 1121 South
Cypress, and 717 East Third.
COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION
At its regular meeting on February 15, 2011, by a vote of 5:0 (Bist absent), the Community
Redevelopment and Housing Commission approved adopting the City Council and Community
Redevelopment Agency resolutions.
8OA-1
Joint Public Hearing - DDA and Resolutions
March 21, 2011
Page 2
DISCUSSION
A key objective of the Redevelopment Agency (Agency) is to expand and preserve affordable
housing. Staff was directed in December 2009 to negotiate a Disposition and Development
Agreement (DDA) with the developers resulting from a Request for Qualifications for both single
family and multi-family residential units on properties owned by the Agency. Habitat for Humanity
of Orange County, Inc. (Habitat) was selected as developer for the single-family housing parcels.
Habitat was created for the purpose of constructing and selling new homes to low and moderate
income families. Their strength and experience over the past 21 years has been in the design and
development of small, irregular, scattered sites for the construction of single family dwellings.
Negotiations have been concluded and we are prepared to move forward with a DDA. Under the
proposed DDA, the Agency will convey properties in three phases. A typical site plan and
elevations for the various sites is attached as Exhibit 1.
In accordance with redevelopment law, a Summary of Sale has been prepared by Keyser Marston
Associates, which outlines in detail the financial terms of the proposed transaction. A summary of
the terms and conditions contained in the proposed DDA are as follows:
• Developer will construct a total of 17 single family homes:
o 9 three bedrooms and 8 four bedrooms
o 7 low-income (80% Area Median Income- AMI) homes
o 10 moderate income(120% AMI) homes
• Construction will be accomplished in three phases;
• Conveyance of Agency parcels at no cost;
• Agency will loan an amount not to exceed $1,615,513, (includes planning, transportation
and school fees), which will be repaid in the form of 45 year affordability covenants ;
• Agency to provide a Developer fee in the amount of $50,000 per affordable unit at time of
sale to qualified home buyer;
• Affordability covenants will run with land for 45 years.
The following identifies the size of the homes and level of affordability:
8OA-2
Joint Public Hearing - DDA and Resolutions
March 21, 2011
Page 3
No. of No. Beds AMI
Address Type of Unit Units 3 4 Low Mod
719 N. Concord Single Family 2 2 2
812 N. Concord Single Family 1 1 1
1314 Eastwood Single Family 1 1 1
4809 W. Edinger Single Family 1 1 1
4010, 4018, 4030, 4106 and
4110 W. McFadden
Att. Single Family
7
3 3
4
3
1029 McLean Single Family 1 1 1
1114 S. Cypress Single Family 2 1 1 1 1
1121 S. Cypress Single Family 1 1 1
717 E. T Single Family 1 1 1
Totals 17 9 8 7 10
Habitat agrees to construct all single family homes including landscaped front and rear yards.
Each of the homes will be sold to low- and moderate income households at an affordable price
ranging from approximately $166,000 to $385,000 to income-qualified households and will be
restricted for a period of at least forty-five years. The homes will consist of 3 and 4 bedrooms, 1 '/2
to 2 '/2 bathrooms and range in size from approximately 1,300 square feet to 1,600 square feet.
Homes will be one or two-story with 2-car garages. All homes will provide sustainable amenities
such as water conserving plumbing fixtures, tank less water heaters, on-demand hot water system,
drought-resistant landscaping and high efficiency electrical fixtures.
Sources
Habitat Funding Sources $2,299,749
Land Value $1,834,000
Tax-Increment
$ 1,615,513
Total $7,327,313
Uses
Land Value $1,834,000
Construction $ 3,544,115
Soft Costs $ 835,925
Developer Fee & Overhead $ 850,000
Financing Costs $ 263,273
Total $7,327,313
Construction of these units will assist the City and Agency in meeting the Regional Housing Needs
Assessment (RHNA) goals identified in the Housing Element, Consolidated Plan and the
Implementation Plan.
8OA-3
Joint Public Hearing - DDA and Resolutions
March 21, 2011
Page 4
ENVIRONMENTAL COMPLIANCE
In accordance with the California Environmental Quality Act, the proposed project is exempt from
further review.
FISCAL IMPACT
Funds are available in the Tax Increment Housing Set-Aside account (no. 50718830-66220).
Shelly La ry-Bayle
Housing Manager
Community Development Agency
NTE/SLB/mlr
Exhibits: 1. Map
2. Council Resolution
3. CRA Resolution
4. DDA
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
8OA-4
to
a
LA
' ¦ ?' FAIRHAVEN AV,
o
22
7
J
W
TRABK AV. p
? SANTA CLARA AV.
MEELJL? r 17TH ST.
¦
WASHINGTON AV.
¦ 5 y
CIVIC CE ER DR. z
5TH ST. STH ST
. .
' SANT A ANA RL. 4TH ST
.
• 1ST ST,
m
?
?.
on ;-Z
?
P MCFAD
to
DEN AV.
m
¦ MCFADDEN AV.
Ur .. n
a
EDINGER AV,
o w ¢
o
? a
z
w 3 ST. ANDR PL,
z
(
a
WARNER AV. P'
o?o?no?num DYER RD
r=
y
ALTON AV. ALTON AV.
¦. ¦ MACARTHUR BL.
SUNFLOWER W0
5 N
Site Address Site Address
1
719 N. Concord Street
812 N. Concord Street
5 4010 & 4018,4030 W. McFadden Ave
4106 W. McFadden Ave
4110 W. McFadden Ave
2 1114 S. Cypress Avenue
1121 S. Cypress Avenue
6
1029 McLean Drive
3 1314 Eastwood Avenue
4 4809 W. Edinger Avenue 7 717 E Third Street
Exhibit 1
8OA-5
8OA-6
RESOLUTION NO.2011-
A RESOLUTION OF THE CITY COUNCIL OF
SANTA ANA MAKING CERTAIN FINDINGS WITH
RESPECT TO THE CONSIDERATION TO BE
RECEIVED BY THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF
SANTA ANA PURSUANT TO A DISPOSITION AND
DEVELOPMENT AGREEMENT BETWEEN THE
AGENCY AND HABITAT FOR HUMANITY OF
ORANGE COUNTY, INC. FOR THE SALE OF
CERTAIN REAL PROPERTY, AND APPROVING
THE SALE OF SAID REAL PROPERTY UPON THE
TERMS AND CONDITIONS CONTAINED IN THAT
AGREEMENT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA, AS
FOLLOWS:
Section 1: The City Council of the City of Santa Ana hereby finds, determines and
declares as follows:
A. The Community Redevelopment Agency of the City of Santa Ana
(hereinafter referred to as the "Agency") is engaged in activities necessary
to execute and implement the Redevelopment Plan for the Merged
Redevelopment Projects, including strengthening of public-private
partnerships to provide more affordable housing, and particularly to
provide decent, safe, sanitary, and affordable housing to the lower income
citizens of the City of Santa Ana.
B. In order to implement the Redevelopment Plan, the Agency
proposes to sell said real property located at 719 and 812 N. Concord, 1314
Eastwood, 4809 W. Edinger, 4010, 4018, 4030, 4106, and 4110 W.
McFadden, 1029 McLean, 1114 and 1121 S. Cypress, and 717 E. Third
Street (the Properties) pursuant to the terms and provisions of a
Disposition and Development Agreement (hereinafter referred to as the
"Agreement") between the Agency and Habitat for Humanity of Orange
County, Inc., a non-profit, public benefit corporation ("Developer"), which is
on file in the office of the Executive Director of the Agency.
C. Developer proposes to construct and sell seventeen (17) single
family homes to low and moderate income qualified households. The term
EXHIBIT 2
8OA-7
of affordability on each of the homes will be forty-five (45) years.
D. The consideration for the Properties is not less than the fair market
value of the land at the use and with the long term affordability covenants
and conditions and development costs authorized by the sale.
E. The Agreement contains all of the provisions, terms, conditions and
obligations required by the state and local laws, as well as long-term
affordability covenants benefiting the Agency.
F. Developer possesses the qualifications and financial resources
necessary to acquire and insure development of the Properties as a three
single-family homes to be sold to qualified low income families in
accordance with the purpose and objectives of the Redevelopment and
Implementation Plan.
G. In accordance with the California Environmental Quality Act, the
proposed project is exempt from further review.
H. Pursuant to the provisions of the California Redevelopment Law, the
Agency and the City Council have held a duly noticed joint public hearing on
the proposed sale of the Properties in compliance with Health and Safety
Code section 33433. The City Council has considered all evidence
submitted, both oral and written, as fully advised prior to adoption of this
Resolution.
Section 2. The City Council has considered all terms and conditions of the
proposed sale to Developer and hereby finds and determines that the sale and
development of the Properties pursuant to the Agreement is in the best interest of the City
of Santa Ana and the health, safety and welfare of its residents, and is in accord with the
public purpose and provisions of the applicable state and local laws.
Section 3. The City Council hereby finds and determines that the consideration
for the sale of the Properties pursuant to the Disposition and Development Agreement is
not less than the fair market value of the Properties determined in accordance with the
covenants and conditions governing the sale.
Section 4. The sale of the Properties by the Agency to Developer upon the
terms and conditions contained in the Agreement is hereby approved.
Section 5. The Clerk of the Council shall attest to and certify the vote adopting
this Resolution.
2
8OA-8
ADOPTED this day of , 2011.
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
City Attorney
By:
Lisa E. Storck
Assistant City Attorney
AYES: Councilmembers:
NOES: Councilmembers:
ABSTAIN: Councilmembers:
NOT PRESENT: Councilmembers:
CERTIFICATION OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached
Resolution No. 2011- to be the original resolution adopted by the City Council
of the City of Santa Ana on , 2011.
Date:
Clerk of Council
City of Santa Ana
8OA-9
8OA-10
RESOLUTION NO.2011-
A RESOLUTION OF THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF
SANTA ANA APPROVING A DISPOSITION AND
DEVELOPMENT AGREEMENT BETWEEN THE
AGENCY AND HABITAT FOR HUMANITY OF
ORANGE COUNTY, INC.
BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF SANTA ANA, AS FOLLOWS:
Section 1: The Board of the Community Redevelopment Agency of the City of
Santa Ana hereby finds, determines and declares as follows:
A. The Community Redevelopment Agency of the City of Santa Ana
(hereinafter referred to as the "Agency") is engaged in activities necessary
to execute and implement the Redevelopment Plan for the Merged
Redevelopment Project Areas (the "Redevelopment Plan"), including
strengthening of public-private partnerships to provide more affordable
housing, and particularly to provide decent, safe, sanitary, and affordable
housing to the lower income citizens of the City of Santa Ana.
B. In order to implement the Redevelopment Plan, the Agency has
agreed, subject to the approval of the City Council, to sell certain real
property located at 719 and 812 N. Concord, 1314 Eastwood, 4809 W.
Edinger, 4010, 4018, 4030, 4106, and 4110 W. McFadden, 1029 McLean,
1114 and 1121 S. Cypress, and 717 E. Third Street (the Properties)
pursuant to the terms and provisions of a Disposition and Development
Agreement (hereinafter referred to as the "Agreement") between the
Agency and Habitat for Humanity of Orange County, Inc., a non-profit,
public benefit corporation ("Developer"), which is on file in the office of the
Executive Director of the Agency, in which said real property, is described.
C. Developer proposes to construct and sell seventeen (17) single
family homes to low and moderate income qualified households. The term
of affordability on each of the homes will be for forty-five (45) years.
D. The Agreement contains all of the provisions, terms, conditions and
obligations required by the state and local laws.
EXHIBIT 3
1
8OA-11
E. Developer possesses the qualifications and financial resources
necessary to acquire and insure development of the Properties in
accordance with the purpose and objectives of the Redevelopment Plan.
F. In accordance with the California Environmental Quality Act, the
proposed project is exempt from further review.
G. Pursuant to the provisions of the California Redevelopment Law, the
Agency and the City Council have held a duly noticed joint public hearing on
the proposed sale of the Properties pursuant to the Agreement. The
Agency Board has considered all evidence submitted, both oral and written,
as advised prior to adoption of this Resolution.
Section 2. The Disposition and Development Agreement is hereby approved,
and the Executive Director of the Agency, or his/her designee, is hereby authorized to
execute the Agreement, with such non-substantive changes as may be approved by
Agency's General Counsel.
Section 3. The Executive Director of the Agency, or his/her designee, is hereby
authorized to take all steps, and to sign all documents and instruments necessary to
implement and carry out the Agreement on behalf of the Agency.
2
8OA-12
ADOPTED this day of , 2011.
Miguel A. Pulido
Chair
APPROVED AS TO FORM:
General Counsel
By:
Lisa E. Storck
Assistant General Counsel
AYES: Boardmembers:
NOES: Boardmembers:
ABSTAIN: Boardmembers:
NOT PRESENT: Boardmembers:
CERTIFICATION OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Secretary of the Agency, do hereby attest to and certify the
attached Resolution No. 2011- to be the original resolution adopted by the
Community Redevelopment Agency of the City of Santa Ana on
2011.
Date:
Secretary
Community Redevelopment Agency
of the City of Santa Ana
3
8OA-13
8OA-14
2/9/2011
DISPOSITION AND DEVELOPMENT AGREEMENT
(Phase VI)
by and between the
COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF SANTA ANA
and
HABITAT FOR HUMANITY OF ORANGE COUNTY, INC.,
a California non-profit public benefit corporation
Community Redevelopment Agency Resolution No.
, 2011
EXHIBIT 4
8OA-15
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is
entered into on this day of , 2011, by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corporate
and politic ("Agency"), and HABITAT FOR HUMANITY OF ORANGE COUNTY, INC., a
non-profit public benefit corporation ("Developer").
RECITALS
The following recitals are a substantive part of this Agreement:
A. In furtherance of the objectives of the California Community Redevelopment
Law, the Agency desires to redevelop Agency-owned Sites located at: 717 E. Third Street, 719
N. Concord Street, 812 N. Concord Street, 1114 S. Cypress Avenue, 1121 Cypress Avenue, 1314
Eastwood Avenue, 4809 W. Edinger Avenue, 4010 & 4018 W. McFadden Avenue, 4106 W.
McFadden Avenue, 4110 W. McFadden Avenue and 1029 McLean Drive within the City of
Santa Ana, as more particularly described on Exhibit A and incorporated herein (the "Sites").
The Sites are all undeveloped vacant property. The Sites are depicted on the Site Map is
attached hereto as Exhibit B.
B. The Sites are currently owned by the Agency.
C. The Agency and Developer desire by this Agreement for the Agency to convey
the Sites, in three (3) Phases (each, a "Phase"), to the Developer and for the Developer to agree
to construct the number of single-family homes as set forth in Section 301 with landscaped front
yards on the Sites. Each of the single-family homes will be sold at an affordable price to
income-qualified households and future sales of such single-family homes will be restricted to
income-qualified households for a period of at least forty-five (45) years.
D. The Agency shall convey each Site to Developer upon execution of the Grant Deed
with Developer ("Developer Grant Deed" - see Exhibit C attached hereto and incorporated
herein). There will be an Agency Loan to Developer for development of each of the Sites and
the Developer shall sign a Promissory Note ("Developer Promissory Note"- see Exhibit D
attached hereto and incorporated herein) for each Site and a deed of trust will be executed and
recorded against each Site ("Developer Deed of Trust" - see Exhibit E attached hereto and
incorporated herein).
E. The Agency's disposition of the Sites to the Developer, and the Developer's
acquisition of the Sites and construction of the Improvements pursuant to the terms of this
Agreement, are in the vital and best interest of the City and the health, safety, and welfare of its
residents, and in accord with the public purposes and provisions of applicable state and local
laws and requirements under which the redevelopment of the Project has been undertaken.
EXHIBIT 4
8OA-16
F. It is agreed by and between the Parties that the foregoing Recitals are a
substantive part of this Agreement and the following terms and conditions are approved and
together with the Recitals and all exhibits and attachments hereto, shall constitute the entire
agreement between the Agency and Developer.
NOW THEREFORE, the Agency and Developer hereby agree as follows:
100. DEFINITIONS
"Affordable Housing Resale Restrictions"" means the document containing the
covenants and restrictions pertaining to affordability of the Units for a term of at least forty-five
(45) years running with the land, to be executed by the Agency and each Homebuyer and
recorded against each of the Properties. The Affordable Housing Resale Restrictions, along with
the legally required Notice, are attached hereto as Exhibit F and incorporated herein by this
reference.
"Affordable Housing Cost" means the maximum purchase price of an Affordable For-
Sale Unit by a Low and Moderate Income Household pursuant to California Health and Safety
Code Section 50052.5(b)(3) and 50052.5(b)(4).
"Affordable Unit" means each of the Homes to be constructed and sold at an Affordable
Housing Cost pursuant to this Agreement.
"Agency" means the Community Redevelopment Agency of the City of Santa Ana, a
public body, corporate and politic, exercising governmental functions and powers and organized
and existing under Chapter 2 of the Community Redevelopment Law of the State of California,
and any assignee of or successor to its rights, powers and responsibilities.
"Agency's Conditions Precedent" means the conditions precedent to each Closing to
the benefit of the Agency, as set forth in Section 205.1 hereof.
"Agreement" means this Disposition and Development Agreement between the Agency
and Developer.
"Area Median Income" means the median income figures for Orange County adopted
by the State of California pursuant to Health and Safety Code Section 50093, as amended from
time to time.
"City" means the City of Santa Ana, a charter city and municipal corporation.
"Closing" means the close of escrow for the conveyance of the Sites in a Phase from the
Agency to the Developer and shall occur at the time and on the day the Grand Deed is filed for
record with the Orange County Recorder's Office.
"Closing Date" means the day on which the Closing of a Phase occurs.
"Condition of Title" is defined in Section 203 hereof.
2 EXHIBIT 4
8OA-17
"Conveyance" means the conveyance of the Sites in each Phase to Developer by
recordation of the Grant Deeds from the Agency on the Closing Date.
"Date of Agreement" is set forth in the first paragraph hereof.
"Default" means the failure of a party to perform any action or covenant required by this
Agreement within the time periods set forth herein following notice and opportunity to cure, as
set forth in Section 501 hereof.
"Design Development Drawings" means those plans and drawings to be submitted to
the City for its approval, pursuant to Section 302 hereof.
"Developer" means Habitat for Humanity of Orange County, Inc., a California non-profit
public benefit corporation.
"Developer Deed of Trust" means each Deed of Trust, signed by Developer, which
shall be recorded as an encumbrance against each Site, as conveyed by Agency to Developer
substantially in the form of Exhibit E hereto which is incorporated herein.
"Developer Grant Deed" means the grant deed for the conveyance of each Site in a
Phase from the Agency to the Developer, substantially in the form of Exhibit C hereto which is
incorporated herein.
"Developer Parties" is defined in Section 208.7.
"Developer Promissory Note" means each Promissory Note signed by Developer in the
amount of the Agency assistance for each Site substantially in the form of Exhibit D hereto
which is incorporated herein.
"Developer's Conditions Precedent" means the conditions precedent to each Closing to
the benefit of the Developer, as set forth in Section 205.2.
"Environmental Laws" means a federal, state or local law, statute, ordinance or
regulation pertaining to environmental regulation, contamination or cleanup of any Hazardous
Materials including, but not limited to: (i) Sections 25115, 25117, 25122.7, or 25140 of the
California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law),
(ii) Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8
(Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory), (iv) Section 25281 of the California Health and Safety Code,
Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) Article 9 or
Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (vi) Section
311 of the Clean Water Act (33 U.S.C. section 1317), (vii) Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. section 6901, et seq. (42 U.S.C. section 6903, (viii)
Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. section 9601 et seq., or (ix) any state or federal lien or "superlien" law, any
environmental cleanup statute or regulation, or any permit, approval, authorization, license,
variance or permission required by any governmental authority having jurisdiction.
EXHIBIT 4
8OA-18
"Escrow" is defined in Section 202 hereof.
"Escrow Agent" is defined in Section 202 hereof.
"Exceptions" is defined in Section 203 hereof.
"Executive Director" means the Executive Director of the Agency, or her/his designee.
"Family" means natural individuals, related or not, who live as a single household in a
House.
"Force Majeure" shall mean delays of performance by either parry hereunder due to
war; insurrection; strikes; lockouts; labor disputes; riots; floods; earthquakes; fires; casualties;
acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack
of transportation; governmental restrictions or priority; litigation including, but not limited to,
litigation challenging the validity of this transaction or any element thereof (except
condemnation); severe weather; inability to secure necessary labor, materials or tools; delays of
any contractor, subcontractor, or supplies; acts of the other party; acts or failure to act of the City
or any other public or governmental agency or entity (other than acts or failure to act on the part
of the Agency or the City shall not excuse performance by the Agency); or any other cause
beyond the control, or without the fault of the parry claiming an extension of time to perform;
provided that notice by the party claiming such extension is sent to the other party within thirty
(30) days of the commencement of the cause or event resulting in such delays. Any such
extension shall be for the duration of the cause of the delay.
"Governmental Requirements" means all applicable laws, ordinances, statutes, codes,
rules, regulations, orders, and decrees of the United States, the State of California, the County of
Orange, the City, or any other political subdivision with jurisdiction over property within the
City, and of any other political subdivision, agency, or instrumentality exercising jurisdiction
over the Agency, Developer or the Sites, including all applicable federal, state, and local
occupation, safety and health laws, rules, regulations and standards, applicable state and labor
standards, applicable prevailing wage requirements, the City zoning and development standards,
City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to
work undertaken pursuant to this Agreement, and all other provisions of the City and its
Municipal Code (as they apply to work undertaken pursuant to this Agreement), and the Unruh
Civil Rights Act, Civil Code § 51 et seq.
"Hazardous Materials" means any substance, material, or waste which is or becomes,
regulated by any local governmental authority, the State of California, or the United States
government, including, but not limited to, any material or substance which is (i) defined as a
"hazardous waste," "extremely hazardous waste," or "restricted hazardous waste under Section
25115, 25117, or 25122.7, or listed pursuant to Section 25140 of the California Health and
Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a
"hazardous substance" under Section 25316 of the California Health and Safety Code, Division
20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a
"hazardous material," "hazardous substance," or " hazardous waste" under Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
4 EXHIBIT 4
8OA-19
Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of
the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls,
(viii) listed under Article 9 or Administrative Code, Division 4, Chapter 20, (ix) designated as
"hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section
1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (42 U.S.C. section 6903) or (xi)
defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. section 9601 et seq.
"Homebuyer Documents" refers to the documents to be executed by the Homebuyer
upon purchase of the affordable House as set forth in Section 403.4.
"House" means the building and appurtenant structures located on a Parcel and designed
and intended for use and occupancy as a residence by a single Family.
"Household Size Appropriate for the Unit," for the purpose of determining Affordable
Housing Cost only, means four persons for a three bedroom Affordable Unit and five persons for
a four bedroom Affordable Unit. Household Size Appropriate for the Unit is not intended to
constitute a limitation on the number of persons who may live in the Unit.
"Improvements" means the improvements to be constructed by the Developer upon the
Sites in a Phase, all more specifically defined herein and in the Scope of Development.
"Lender" is defined in Section 311.2 hereof.
"Low Income" and "Low Income Households" shall mean persons and families whose
income does not exceed the qualifying limits for Low Income families in Orange County as
established by the State of California pursuant to Health and Safety Code section 50079.5, as
such qualifying limit is amended from time to time.
"Moderate Income" or "Moderate Income Households" shall mean persons and
families whose income does not exceed the qualifying limits for Moderate Income Households in
Orange County as established by the State of California pursuant to Health and Safety Code
section 50093, as such qualifying limit is amended from time to time.
"Monthly Housing Costs" shall mean (i) one-twelfth of the annual cost of principal and
interest payments on each loan secured by a mortgage on the Affordable Unit and loan insurance
fees, if any, associated with such mortgages; (ii) one-twelfth of the annual cost of property taxes
and assessments; (iii) one-twelfth of the annual cost of fire and casualty insurance covering
replacement value of property improvements; (iv) one-twelfth of the annual cost of property
maintenance and repairs; (v) one-twelfth of the annual cost of a reasonable allowance for utilities
the County Utility Schedule as adopted by the Santa Ana Housing Authority (as amended from
time to time), including garbage collection, sewer, water, gas, electricity, and other heating,
cooking or refrigeration fuels, but not telephone service, and (vi) one-twelfth of annual
homeowners association dues and assessments.
"Mortgage" is defined in Section 311.2 hereof.
5 EXHIBIT 4
80A-20
"Notice" shall mean notice in the form prescribed by Section 601 hereof.
"Notice of Affordability" shall mean the document recorded against each of the Parcels
pursuant to Section 33334.3(f)(3)(B) of the California Health & Safety Code as amended by
AB 987, Chapter 690, Statutes of 2007 (herein, "Chapter 690") substantially in the form of
Exhibit G hereto which is incorporated herein.
"Outside Date" shall mean the last date a Closing of a Phase shall occur, as set forth in
Section 202.4 hereof.
"Parcel" shall mean a legal parcel of real property on which a House is constructed or to
be constructed and which will be conveyed to a Program Participant along with the House.
"Phase" means a group of Sites, and the Houses and other Improvements to be
constructed thereon. The three (3) Phases are depicted on the Site Map attached hereto as
Exhibit B and listed in the Legal Description of Sites.
"Program Participant" (used interchangeably with "Homebuyer") means the selected
eligible person or Family who will be purchasing a House. Each Program Participant will be
providing not less than five hundred (500) hours of sweat equity toward the development of their
House, or any other improvements as may be designated by the Developer. Each Program
Participant is to be selected by the Developer as more fully set forth in its Marketing Outreach
and Sales Program.
"Project" means with respect to each Phase, the predevelopment activities related to the
Sites in such Phase, including the acquisition of the Sites by Developer, the construction of the
number of Affordable Units assigned to such Phase, the sale thereof to qualified purchasers of
the Affordable Units at an Affordable Housing Cost and any other activities undertaken in
connection therewith.
"Project Budget" means the budget for the project submitted and approved by the
Agency, attached hereto and incorporated herein as Exhibit H.
"Purchase Price" means, with respect to each Phase, the price to be paid by the
Developer to the Agency in consideration for the conveyance of fee title to the Sites included in
such Phase.
"Release of Construction Covenants" means the document which evidences the
Developer's satisfactory completion of the Improvements, as set forth in Section 310 hereof, in
substantially the form of Exhibit I hereto which is incorporated herein.
"Report" means the preliminary title report, as described in Section 203 hereof.
"Schedule of Performance" means the Schedule of Performance attached hereto as
Exhibit J and incorporated herein, setting out the dates and/or time periods by which certain
obligations set forth in this Agreement must be accomplished. The Schedule of Performance is
subject to revision from time to time as mutually agreed upon in writing between the Developer
6 EXHIBIT 4
8OA-21
and the Agency's Executive Director, and the Agency's Executive Director is authorized to make
such revisions as he or she deems reasonably necessary.
"Scope of Development" means the Scope of Development attached hereto as Exhibit K
and incorporated herein, which describes the scope, amount and quality of development of the
Improvements to be constructed by the Developer pursuant to the terms and conditions of this
Agreement. The Scope of Development is subject to revision from time to time as mutually
agreed upon in writing between the Developer and the Executive Director.
"Sites" is defined in Recital A above.
"Site Legal Description" means the legal description of each Site attached hereto as
Exhibit A, and incorporated herein.
"Site Map" means the map depicting the Sites which is attached hereto as Exhibit B.
"Term of Affordability" shall be forty five (45) years.
"Title Company" is defined in Section 204 hereof.
"Title Policy" is defined in Section 204 hereof.
200. CONVEYANCE OF THE SITES
201. Purchase and Sale of Sites. The Agency currently holds fee title to the Sites.
Subject to all of the terms and conditions of this Agreement, Agency shall transfer the Sites to
Developer, and Developer shall develop the Sites from Agency, in three (3) Phases in exchange
for the Developer's assumption of the obligations set forth herein with respect to such Phase.
Upon conveyance of each Site, the Developer shall execute a Promissory Note ("Developer
Promissory Note") for the amount of the Agency assistance ("Agency Loan Amount") along
with a corresponding Deed of Trust ("Developer Deed of Trust") which shall be recorded against
the Site. The Developer Deed of Trust shall be reconveyed upon sale of the House to a qualified
purchaser and execution of the Homebuyer documents as set forth in section 403.4.
201.1 Conveyance of Sites in Phases. The Sites shall be separately conveyed in
three separate Phases. The Sites are more specifically identified in the Legal Description of the
Sites and depicted on the Site Map. The addresses contained in each Phase may be altered or
changed with written approval of both parties.
A. The street addresses and Agency Loan Amounts for the Sites in
Phase 1 are:
1121 S. Cypress Street ($,124,937.09)
812 Concord ($174,936.99)
1314 Eastwood ($240,932.99).
7 EXHIBIT 4
8OA-22
Phase 2 are:
B. The street addresses and Agency Loan Amounts for the Sites in
1114 Cypress ($363,069.99)
719 N. Concord ($349,873.99)
717 E. 3rd Street($345,540.99)
Phase 3 are :
C. The street addresses and Agency Loan Amountsfor the Sites in
4010-4030 W. McFadden ($1,015,284.97)
4030-4110 W. McFadden ($360,869.99)
1029 S. McLean ($165,932.99)
4809 W. Edinger Avenue ($308,132.99)
201.2 Neighborhood Input. Developer shall be responsible for providing the
concept plans to the surrounding neighborhood groups/associations to be reviewed/discussed at
neighborhood meetings in order to obtain neighborhood input regarding such concept plans.
201.3 Timing. The Conveyance of each of the three Phases of Sites shall
comply with all of the provisions of this Article including, without limitation, the Escrow
provisions set forth in Section 202 hereof, the title provisions set forth in Sections 203 and 204
hereof, and the Conditions Precedent set forth in Section 205 hereof.
201.4 Right of Entry. Agency agrees to grant Developer a Right of Entry for
each of the Sites in order for Developer to perform its due diligence.
201.5 Subcontractors. Prior to Conveyance of each of the Phases of Sites,
Developer shall provide Agency with a list of its proposed subcontractors for construction,
marketing and sales with respect to such Phase. Subcontractors shall be licensed and in good
standing with the State Contractor's Board.
202. Escrow.
202.1 Procedures.
(a) Agency shall transfer to Developer the Phases at the times set forth
in the Schedule of Performance attached as Exhibit J hereto, subject to the satisfaction of all the
conditions precedent to Closing.
(b) The Agency agrees to open escrow for each Phase of the sale of
the Sites to the Developer with First American Title Insurance Company, or such other escrow
company mutually agreed upon by the parties (the "Escrow Agent") at a time sufficient to
satisfy Developer's obligation set forth in Section 202.1(a) above. This Agreement and Escrow
Agent's Standard Form Escrow Instructions shall constitute the joint escrow instructions of the
8 EXHIBIT 4
8OA-23
Agency and the Developer and a duplicate original of this Agreement shall be delivered to the
Escrow Agent upon the opening of each escrow.
(b) The Agency's Executive Director and the Developer shall provide
such additional escrow instructions as shall be necessary and consistent with this Agreement.
The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its
acceptance of this Section in writing, delivered to the Agency and within five (5) days after
delivery of Agreement, shall carry out its duties as Escrow Agent hereunder.
(c) After delivery to the Escrow Agent by the Agency of a deed for
each of the Sites in a Phase, and upon close of escrow of that Phase, the Escrow Agent shall
record such deeds in accordance with these escrow instructions, provided that the title to the
Sites can be vested in the Developer in accordance with the terms and provisions of this
Agreement. The Escrow Agent shall buy, affix, and cancel any transfer stamps required by law
and pay any transfer tax required by law. Any insurance policies relating to such property shall
not be transferred to Developer by Agency.
(d) The Agency and the Developer shall deliver to the Escrow Agent
all documents necessary for the conveyance of title to the Sites in each Phase in conformity with,
within the times, and in the manner provided in Agreement.
202.2 Costs of Conveyance. With regard to the conveyance of title to the Sites
in each Phase to Developer:
(1) The Developer shall pay the following fees, charges and costs:
(a) Developer's share of the premium for any title insurance
policies as set forth in Section 205 of this Agreement;
(b) One-half (1/2) of escrow fees and recording fees;
(c) One-half (1/2) of notary fees.
(2) The Agency shall pay all other fees, charges and costs, including
without limitation:
(a) Costs necessary to place title in the condition required by
the provisions of this Agreement ;
(b) Ad valorem taxes, if any, upon the property conveyed for
any time prior to conveyance of title;
(c) Any federal, state, county or city documentary stamps and
transfer taxes;
(d) The Agency's share of the premium for the Title Policy as
set forth in Section 205 of this Agreement;
9 EXHIBIT 4
8OA-24
(e) One-half (1/2) of escrow fees and recording fees; and
(f) One-half (1/2) of notary fees.
202.3 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer and Agency, and Escrow Agent to whom these instructions are
delivered is hereby empowered to act under this Agreement. The Parties hereto agree to execute
and deliver such documents (in recordable form as required), pay or deposit such funds, do all
such acts consistent with their respective obligations hereunder as may be reasonably necessary
to close the Escrow for each Phase in the shortest possible time and in any event on or before the
Outside Date for such Phase. All funds received in the Escrow shall be deposited with other
escrow funds in a general escrow account(s) and may be transferred to any other such escrow
trust account in any State or National Bank doing business in the State of California. All
disbursements shall be made by check from such account. If in the opinion of Escrow Agent or
either Party it is necessary or convenient in order to accomplish the Closing of a Phase, such
Party may require that the Parties sign supplemental escrow instructions; provided that if there is
any inconsistency between this Agreement and the supplemental escrow instructions, then the
provisions of this Agreement shall control. The Parties agree to execute such other and further
documents as may be reasonably necessary, helpful or appropriate to effectuate the provisions of
this Agreement, the Escrow Agent is instructed to release Agency's and Developer's escrow
closing statements to both Parties.
202.4 Authority of Escrow Agent. With respect to the Closing of each Phase,
Escrow Agent is authorized to, and shall:
a. Pay and charge Agency for the premium of the Title Policy and
any amount necessary to place title in the condition necessary to satisfy Section 203 of this
Agreement.
b. Pay and charge Developer and Agency for their respective shares
of any escrow fees, charges, and costs payable under Section 202.1 of this Agreement.
C. Pay and charge Developer for any endorsements to the Title Policy
which are requested by the Developer.
d. Disburse funds, and deliver and record the Grant Deeds when both
the Developer's Conditions Precedent and the Agency's Conditions Precedent have been
fulfilled or waived by Developer and Agency.
e. Do such other actions as necessary, including obtaining the Title
Policy, to fulfill its obligations under this Agreement.
f. Within the discretion of Escrow Agent, direct Agency and
Developer to execute and deliver any instrument, affidavit, and statement, and to perform any act
reasonably necessary to comply with the provisions of FIRPTA and any similar state act and
regulation promulgated thereunder. Agency agrees to execute a Certificate of Non-Foreign
Status by individual transferor and/or a Certification of Compliance with Real Estate Reporting
10 EXHIBIT 4
8OA-25
Requirement of the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to
be supplied by Escrow Agent.
g. Prepare and file with all appropriate governmental or taxing
authorities a uniform settlement statement, closing statement, tax withholding forms including an
IRS 1099-S form, and be responsible for withholding taxes, if any such forms are provided for or
required by law.
202.5 Closing. The Closing of each Phase of this transaction shall occur within
ten (10) days of the parties' satisfaction of all Conditions Precedent to Closing as set forth in
Section 205 hereof, and only after issuance of building permits and adequate approved proof of
financing. The Closing of each Phase shall occur at the offices of Escrow Agent at a time
and place reasonably agreed on by the parties
202.6 Termination.
A. Termination by the Developer. In the event that:
(i) The Developer is unable to obtain financing necessary for
the construction of the Improvements, or
(ii) The Agency is in default of the Agreement and has not
cured or commenced to cure such default within the time period set forth herein.
Then, subject to any applicable cure provisions contained in this Agreement, at
the option of the Developer, thirty (30) days after written notice thereof is delivered to the
Agency, all provisions of this Agreement regarding the future purchase of Phases shall terminate
and be of no further force and effect. Thereafter, neither the Agency nor the Developer shall
have any further rights against or liability to the other with respect to this Agreement and any
Phase not previously purchased.
B. Termination by the Agency. In the event that:
(i) The Developer (or any successor in interest) assigns or
attempts to assign this Agreement or any rights therein or in the improved parcels in violation of
this Agreement; or
(ii) The Developer fails to proceed with or suspends work on
any Project; or
(iii) The Developer does not submit certificates of insurance,
construction plans, drawings and related documents as required by this Agreement, in the
manner and by the dates respectively provided in this Agreement and such default or failure shall
not be cured within thirty (30) days after the date of written demand therefor by the Agency; or
(iv) The Developer does not satisfy the Agency's Conditions to
the Conveyance of the corresponding Houses and corresponding Parcels by the time established
therefor in the Schedule of Performance; or
1 I EXHIBIT 4
8OA-26
(v) The Developer is otherwise in default under this Agreement
and has not cured or commenced to cure such default within the time period set forth herein.
Then, at the option of the Agency, thirty (30) days after written notice thereof is
delivered to the Developer, the provisions of this Agreement regarding the future Phases shall be
terminated, and thereafter, neither party shall have any further rights against the other under this
Agreement.
202.7 Closing Procedure. Escrow Agent shall close Escrow for each Phase of
the Sites as follows:
a. Record the Grant Deeds for the Sites with instructions for the
Orange County Recorder's Office, California, to deliver the Grant Deeds after recordation to the
Developer;
b. Record the Deeds of Trust with instructions for the Recorder of
Orange County, California to deliver the Deeds of Trust after recordation to the Agency;
C. Instruct the Title Company to deliver the Title Policy for the Sites
in the Phase to Developer and to deliver the Lender's Policy for the Sites in the Phase to the
Agency;
d. File any informational reports required by Internal Revenue Code
Section 6045(e), as amended, and any other applicable requirements; and
e. Deliver the Promissory Note to Agency;
f. Deliver the FIRPTA Certificate, if any, to Developer; and
g. Forward to both Developer and Agency a separate accounting of
all funds received and disbursed for each party and copies of all executed and recorded or filed
documents deposited into Escrow, with such recording and filing date and information endorsed
thereon.
203. Review of Title. Within the time set forth in the Schedule of Performance, the
Agency shall cause First American Title Insurance Company or another title company mutually
agreeable to both parties (the "Title Company"), to deliver to Developer a preliminary title
report or reports, together with color plotted easements if reasonably available (collectively, the
"Title Report") with respect to the title, together with legible copies of the documents
underlying the exceptions ("Exceptions") set forth in the Title Report. Developer shall have the
right to reasonably approve or disapprove the Exceptions; provided, however, that Developer
hereby approves the following Exceptions:
a. The Redevelopment Plan, and
b. The lien of any non-delinquent property taxes, special taxes and/or
assessments (to be prorated as of the Closing Date); and,
12 EXHIBIT 4
8OA-27
the Deed of Trust
d. Any and all routine easements of record.
204. Title Insurance.
A. Owner's Policy. Concurrently with recordation of the Grant Deed(s)
conveying title to each Sites in a Phase, there shall be issued to Developer an ALTA Owner's
Policy of Title Insurance with Western Regional Exceptions (the "Title Policy"), together with
such endorsements as are reasonably requested by the Developer, issued by First American Title
Insurance Company ("Title Company") insuring that the title to the Sites in such Phase is vested
in Developer in the condition required by Section 203 of this Agreement. The Title Company
shall provide the Agency with a copy of the Title Policy. The Title Policy shall be for the
amount of the fair market value of each Site in the Phase. The Agency agrees to remove on or
before the Closing any deeds of trust or other monetary liens against the Sites. The Agency shall
pay that portion of the premium for the Title Policy equal to the cost of the ALTA standard
coverage title policy in the amount of the fair market value of the Sites. Any additional costs,
including the cost of an ALTA extended coverage policy or any endorsements requested by the
Developer, shall be borne by the Developer.
B. Lender's Policy. Concurrently with recordation of the Deed(s) of Trust
covering the Sites in a Phase, there shall be issued to Agency an ALTA Lender's Policy of Title
Insurance with Western Regional Exceptions ("Lender's Policy") together with such
endorsements as are reasonable requested by the Agency, used by the Title Company insuring
the lien of Agency's Deed(s) of Trust subject only to such exceptions as Developer shall have
approved pursuant to Section 203 of this Agreement. The Lender's Policy shall be for the
amount of the Promissory Note delivered to Agency in connection with the purchase of the
applicable Phase.
205. Conditions of Closing. The Closing of each Phase of the Sites is conditioned
upon the satisfaction (or written waiver by the benefited Party or Parties in its or their sole and
absolute discretion) of the following terms and conditions within the times designated below:
205.1 Agency's Conditions of Closing. Agency's obligation to proceed with
the Closing of the sale of the Sites in each Phase is subject to the fulfillment or waiver by
Agency of each and all of the conditions precedent (a) through (1), inclusive, described below
("Agency's Conditions Precedent"), which are solely for the benefit of Agency, and which
shall be fulfilled or waived by the time periods provided for herein:
a. No Default. Prior to the Close of Escrow, Developer is not in
default in any of its obligations under the terms of this Agreement and all representations and
warranties of Developer contained herein shall be true and correct in all material respects.
b. Execution of Documents. The Developer shall have executed the
Promissory Note and Deed of Trust for each Site in the applicable Phase and executed any other
documents required hereunder and delivered such documents into Escrow.
13 EXHIBIT 4
8OA-28
C. Payment of Closing Costs. Prior to the Close of Escrow,
Developer shall have paid all required costs of Closing into Escrow in accordance with Section
202 hereof.
d. Design Approvals. The Developer shall have obtained approval
by the Agency of the Design Development Drawings as set forth in Section 302 hereof.
e. Land Use Approvals. The Developer shall have paid for and
received all land use approvals, entitlements and permits required for the Improvements by the
City or any other governmental agency affected by such construction work.
f. Insurance. The Developer shall have provided proof of insurance
as required by Section 306 hereof.
g. Financing. The Agency shall have approved financing of the
Improvements on the Sites in the applicable Phase as provided in Section 311.1 hereof, and such
financing shall be available for development of the improvements or, to the extent said financing
consists of a third party loan or loans, said loan or loans have closed and funded or shall be ready
to close and fund upon the Closing.
h. No Litigation. No litigation shall be pending or threatened by any
third parties which seek to enjoin the transactions contemplated herein.
i. Representations and Warranties. All representations and
warranties of Developer contained in this Agreement shall be true and correct as if made on and
as of the Closing.
j. Corporate Resolution. Developer shall deliver to Agency a
certified copy of a resolution of Developer's Board of Directors authorizing (or ratifying) the
execution of this Agreement and establishing funding for fulfilling Developer's obligations
under this Agreement.
205.2 Developer's Conditions of Closing. Developer's obligation to proceed
with the purchase of the Sites in each Phase is subject to the fulfillment or waiver by Developer
of each and all of the conditions precedent (a) through (1), inclusive, described below
("Developer's Conditions Precedent"), which are solely for the benefit of Developer, and
which shall be fulfilled or waived by the time periods provided for herein (provided, however,
that if the reason for the failure of any of the following conditions is due to a Developer Default,
such failure shall not be deemed to constitute the failure of Developer's Conditions Precedent):
a. No Default. Prior to the Close of Escrow, Agency is not in default
in any of its obligations under the terms of this Agreement and all representations and warranties
of Agency contained herein shall be true and correct in all material respects.
b. Execution of Documents. The Agency shall have executed the
Grant Deeds for the Sites in the Phase and any other documents required hereunder, and
delivered such documents into Escrow.
14 EXHIBIT 4
8OA-29
C. Payment of Closing Costs. Prior to the Close of Escrow, Agency
shall have deposited in Escrow funds necessary to pay all required costs of Closing for the
applicable Phase into Escrow in accordance with Section 202 hereof.
d. Financing. Developer shall have secured financing for the
improvements on the Sites as provided in Section 311.1 hereof, and such financing shall be
available for development of the improvements or, to the extent said financing consists of a third
party loan or loans, said loan or loans have closed and funded or shall be ready to close and fund
upon the Closing.
e. Review and Approval of Title. Developer shall have reviewed
and approved the condition of title of the Sites in the applicable Phase, as provided in Section
203 hereof.
f. Lender's Policy. The Title Company shall, upon payment of Title
Company's regularly scheduled premium, have agreed to issue the Lender's Policy for the
applicable Phase of the Sites upon the Close of Escrow, in accordance with Section 204 hereof.
g. Condition of Sites. The Developer shall have approved the
environmental, physical and soils condition of the applicable Site and shall not have elected to
cancel Escrow and terminate this Agreement pursuant to Section 208 hereof, the Remediation of
the applicable Site (if required pursuant to that Section) shall have been completed as provided
therein, and Agency is prepared to deliver exclusive possession of the Sites in the applicable
Phase to Developer at the Closing.
h. Design Approvals. The Developer shall have obtained approval
by the Agency of the Design Development Drawings as set forth in Section 302 hereof.
i. Land Use Approvals. The Developer shall have paid for and
received all land use approvals, entitlements and permits required for the Improvements by the
City or any other governmental agency affected by such construction work.
j. Financing. The Developer shall have obtained construction
financing of the Improvements on the applicable Phase as provided in Section 311.1 hereof.
k. No Litigation. No litigation shall be pending or threatened by any
third parties which seek to enjoin the transactions contemplated herein.
1. Representations and Warranties. All representations and
warranties of Agency contained in this Agreement shall be true and correct as if made on and as
of the Closing.
205.3 Legal Parcel. It shall be a Condition Precedent to Closing of a Phase,
which neither parry may waive, that all the Sites in such Phase shall be legal parcels in
compliance with the Subdivision Map Act.
15 EXHIBIT 4
8OA-30
206. Representations and Warranties.
as follows:
206.1 Agency Representations. Agency represents and warrants to Developer
a. Authority. Agency is a public body, corporate and politic,
existing pursuant to the California Community Redevelopment Law (California Health and
Safety Code Section 33000), which has been authorized to transact business pursuant to action of
the City. Agency has full right, power and lawful authority to grant, sell and convey the Sites as
provided herein and the execution, performance and delivery of this Agreement by Agency has
been fully authorized by all requisite actions on the part of Agency.
b. FIRPTA. Agency is not a "foreign person" within the parameters
of FIRPTA or any similar state statute, or is exempt from the provisions of FIRPTA or any
similar sate statue, or that Agency has complied and will comply with all the requirements under
FIRPTA or any similar state statute.
C. No Conflict. To the best of Agency's knowledge, Agency's
execution, delivery and performance of its obligations under this Agreement will not constitute a
default or a breach under any contract, agreement or order to which Agency is a party or by
which it is bound.
d. No Legal Proceedings. There are no claims, causes of action or
other litigation or proceedings pending or, to the best knowledge of the Agency, threatened with
respect to the ownership, operation or environmental condition of the Sites or any part thereof
(including disputes with mortgagees, governmental authorities, utility companies, contractors,
adjoining landowners or suppliers of goods and services).
e. Notices. Agency has received no notices from any governmental
agency of any known or suspected violation of any of the Environmental Laws with respect to
the Sites in the applicable Phase or the known or suspected existence of any Hazardous Materials
on any of the Sites in the applicable Phase.
C Violations. To the best knowledge of the Agency, there are no
violations of any health, safety, pollution, zoning or other laws, ordinances, rules or regulations
with respect to the Sites, which have not heretofore been entirely corrected. In the event Agency
has actual knowledge of any such violations, Agency shall (i) immediately provide Developer
with copies of all documents evidencing such violation, and (ii) cure such violation prior to
Closing except as expressly provided herein.
Until the Closing, Agency shall, upon learning of any fact or condition
which would cause any of the warranties and representations in this Section 206.1 not to be true
as of Closing, immediately give written notice of such fact or condition to Developer. Such
exception(s) to a representation shall not be deemed a breach by Agency hereunder, but shall
constitute an exception which Developer shall have a right to approve or disapprove is such
exception would have an effect on the value of the Sites and/or ability to develop the Sites in the
Phase. If Developer elects to close Escrow following disclosure of such information, Agency's
representations and warranties contained herein shall be deemed to have been made as of the
16 EXHIBIT 4
8OA-31
Closing, subject to such exception(s). If, following the disclosure of such information,
Developer elects to not close Escrow, then this Agreement and the Escrow shall automatically
terminate with respect to the applicable Phase, and neither party shall have any further rights,
obligations or liabilities hereunder with respect to such Phase. The representations and
warranties set forth in this Section 206.1 shall survive the Closing.
206.2 Developer's Representations. Developer represents and warrants to
Agency as follows:
a. Authority. Developer is a duly organized non-profit corporation
formed within and in good standing under the laws of the State of California. Developer has full
right, power and lawful authority to purchase and accept the conveyance of the Sites and
undertake all obligations as provided herein and the execution, performance and delivery of this
Agreement by Developer has been fully authorized by all requisite actions on the part of the
Developer.
b. No Conflict. To the best of Developer's knowledge, Developer's
execution, delivery and performance of its obligations under this Agreement will not constitute a
default or a breach under any contract, agreement or order to which the Developer is a parry or
by which it is bound.
C. No Developer Bankruptcy. Developer is not the subject of a
bankruptcy proceeding and there is no action, legal or administrative proceeding, pending, or to
the Developer's best knowledge threatened, looking toward the dissolution or liquidation of the
Developer.
d. No Legal Proceedings. As of the date of this Agreement, there
are no material legal proceedings pending or, to the Developer's best knowledge, there are no
legal proceedings threatened, to which the Developer, or any of the members of the Developer
non-profit corporation, is or may be made a party, or to which any of its property is or may
become subject which could materially or adversely affect the ability of the Developer to carry
out its obligations hereunder. To the extent there arises any material legal proceeding, real or
threatened, to which the Developer entity becomes, or may be made a party, or to which any of
its property is or may become subject, which could materially or adversely affect the ability of
the Developer to carry out its obligations hereunder, Developer shall promptly notify the Agency
in writing.
e. Experience and Qualifications. Developer represents to the
Agency that the Developer has the experience and qualifications necessary to perform as
Developer pursuant to this Agreement.
Until each Closing, Developer shall, upon learning of any fact or condition which
would cause any of the warranties and representations in this Section 206.2 not to be true as of
the applicable Closing, immediately give written notice of such fact or condition to Agency.
Such exception(s) to a representation shall not be deemed a breach by Developer hereunder, but
shall constitute an exception which Agency shall have a right to approve or disapprove if such
exception would have an effect on the value and/or operation of the Sites. If Agency elects to
17 EXHIBIT 4
8OA-32
close Escrow as to such Phase following disclosure of such information, Developer's
representations and warranties contained herein shall be deemed to have been made as of the
Closing, subject to such exception(s). If, following the disclosure of such information, Agency
elects to not close Escrow, then this Agreement and the Escrow shall automatically terminate as
to the applicable Phase, and neither party shall have any further rights, obligations or liabilities
hereunder as to such Phase. The representations and warranties set forth in this Section 206.2
shall survive the Closing.
207. Studies and Reports. Prior to the Closing of each Phase, representatives of
Developer shall have the right of access to all portions of the Sites in such Phase for the purpose
of obtaining data and making surveys and tests necessary to carry out this Agreement, including
the investigation of the environmental condition of the Sites pursuant to Section 208 hereof. Any
preliminary work undertaken on the Sites by Developer prior to the Closing of such Phase shall
be done at the sole expense of the Developer, and the Developer's execution of a right of entry
agreement to be provided by the Agency. Any preliminary work shall be undertaken only after
securing any necessary permits from the appropriate governmental agencies.
208. Physical and Environmental Condition of the Sites.
208.1 As-Is Condition; Exceptions. Except as set forth in Section 206.1(e) and
(f) this Section 208. 1, the Sites shall be conveyed to Developer in an "as is" physical and
environmental condition, with no warranty, express or implied, by the Agency as to the condition
of any existing improvements on the Sites, the soil, its geology, the presence of known or
unknown faults or Hazardous Materials or toxic substances, and it shall be the sole responsibility
of Developer at its expense to investigate and determine the physical and environmental
conditions for the Improvements to be constructed and the proposed use of same. If the physical
or environmental condition is not in all respects entirely suitable for the use or uses to which the
Sites will be put, Developer may terminate this Agreement as provided in Section 208.2 hereof.
If Developer approves the physical and environmental condition of the Sites and accepts the
Conveyance of the Sites, then it shall be the sole responsibility and obligation of Developer to
take such action as may be necessary to place the physical and environmental conditions of the
Sites in a condition entirely suitable for its development, unless the Agency has breached its
representations, warranties, or covenants set forth in Section 206.1(e).
208.2 Physical and Environmental Investigation and Testing of the Sites.
Developer shall have the right, at its sole cost and expense, to engage its own environmental
consultant (the "Environmental Consultant") to make such investigations of the Sites as
Developer deems necessary, including any additional Phase I and/or Phase II investigations of
the Sites, and the Agency shall promptly be provided a copy of any reports and test results
provided to Developer by the Environmental Consultant (collectively, the "Environmental
Report"). Developer shall reasonably approve or disapprove of the physical and environmental
condition of the Sites in each Phase within the time set forth in the Schedule of Performance. In
the event that Developer reasonably disapproves of the physical or environmental condition of
the Sites in a Phase, then Developer shall have the right, by written notice to Agency, to elect
either (a) to terminate this Agreement with respect to the applicable Phase or (b) to continue this
Agreement in effect as to such Phase, in which event the following terms and conditions of this
Section 208.2 shall apply: Developer agrees to pay, in the event that the amount of monies
18 EXHIBIT 4
8OA-33
reasonably necessary to remediate the Hazardous Materials pursuant to Governmental
Regulations, and generally accepted procedure to cause the Sites to be in compliance with the
Environmental Laws is not more than Fifty Thousand Dollars ($50,000.00). If the amount
necessary to remediate the Hazardous Materials is greater than Fifty Thousand Dollars
($50,000.00) Agency agrees to pay any amount over and above such Fifty Thousand Dollar
($50,000) limit in order to remediate any of the Sites.
208.3 Agency Obligations. The Agency shall deliver the Sites in an "as is"
condition, it being the responsibility of Developer to demolish and clear all above ground and
underground structures, including without limitation, foundations, basements, abandoned utility
lines and tanks and the like.
208.4 No Further Warranties as to Sites. Except as otherwise provided
herein, the physical condition, possession or title of the Sites shall be delivered from Agency to
Developer in an "as-is" condition, with no warranty expressed or implied by Agency, including
without limitation, the presence of Hazardous Materials or the condition of the soil, its geology,
the presence of known or unknown seismic faults, or the suitability of the Sites for the
development purposes intended hereunder.
208.5 Developer Precautions after Closing. Upon the Closing, the Developer
shall take all necessary precautions to prevent the release into the environment of any Hazardous
Materials which are located in, on or under the Sites. Such precautions shall include compliance
with all Governmental Requirements with respect to Hazardous materials. In addition, the
Developer shall install and utilize such equipment and implement and adhere to such procedures
as are consistent with commercially reasonable standards as respects the disclosure, storage, use,
removal and disposal of Hazardous Materials.
208.6 Required Disclosures After Closing. After the Closing of a Phase, the
Developer shall notify the Agency, and provide to the Agency a copy or copies, of all
environmental permits, disclosures, applications, entitlements or inquiries relating to the Sites in
such Phase which have been conveyed to the Developer, including notices of violation, notices to
comply, citations, inquiries, clean-up or abatement orders, cease and desist order, reports filed
pursuant to self-reporting requirements and reports filed or applications made pursuant to any
Governmental Requirement relating to Hazardous Materials and underground tanks. The
Developer shall report to the Agency, as soon as possible after each incident, any unusual or
potentially important incidents with respects to the environmental condition of the Sites.
In the event of a release of any Hazardous Materials into the environment, the
Developer shall, as soon as possible after the release, furnish to the Agency a copy of any and all
reports relating thereto and copies of all correspondence with governmental agencies relating to
the release. Upon request, the Developer shall furnish to the Agency a copy or copies of any and
all other environmental entitlements or inquiries relating to or affecting the Sites including, but
not limited to, all permit applications, permits and reports including, without limitation, those
reports and other matters which may be characterized as confidential.
208.7 Developer Environmental Indemnity. Upon the Closing, Developer
agrees to indemnify, defend and hold Agency harmless from and against any claim, action, suit,
19 EXHIBIT 4
8OA-34
proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense
(including, without limitation, attorney's fees), resulting from, arising out of, or based upon (i)
the release, use, generation, discharge, storage or disposal by Developer or by any individual or
entity for which Developer bears the legal liability including, but not limited to, officers, agents,
employees or contractors of Developer (collectively, the "Developer Parties") of any Hazardous
Materials in violation of Environmental Laws during the period of the Developer's ownership of
the Sites, on, under, in or about, or the transportation of any such Hazardous Materials to or
from, the Sites by Developer or any of Developer Parties during the period of the Developer's
ownership of the applicable Sites, or (ii) the violation, or alleged violation, by Developer or any
of Developer Parties of any Environmental Laws relating to the use, generation, release,
discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or
from, the Sites during the period of the Developer's ownership of the Sites. This indemnity shall
include, without limitation, any damage, liability, fine, penalty, cost or expense arising from or
out of any claim, action, suit, or proceeding for personal injury (including sickness, disease or
death), tangible or intangible property damage, compensation for lost wages, business income,
profits or other economic loss, damage to the natural resource or the environment, nuisance,
contamination, leak, spill, release or other adverse effect on the environment.
208.8 Agency Environmental Indemnity. Upon the Closing, Agency agrees to
indemnify, defend and hold Developer and the Developer Parties harmless from and against any
claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive
damage, or expense (including, without limitation, attorneys' fees) resulting from, arising out of,
or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous
Materials in violation of Environmental Laws on the Sites in each Phase during the period prior
to the Closing of such Phase, on, under, in or about, or the transportation of any such Hazardous
Materials to or from the Sites in a Phase, during the period prior to the Closing of such Phase; or
(ii) the violation, or alleged violation, of any Environmental Laws relating to the use, generation,
release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or
about, to or from, the Sites in a Phase during the period prior to the Closing of such Phase. This
indemnity shall include, without limitation, any damage, liability, fine, penalty, cost or expense
arising from or out of any claim, action, suit or proceeding for personal injury (including
sickness, disease or death), tangible or intangible property damage, compensation for lost wages,
business income, profits or other economic loss, damage to the natural resource or the
environment, nuisance, contamination, leak, spill, release or other adverse affect on the
environment.
300. DEVELOPMENT OF THE SITES
301 A. Developer's Obligations.
301.1 Developer Responsibilities/Obligations. Developer shall be responsible
for all necessary planning and zoning changes; preparation of plans; landscaping, including on-
Site and off-site improvements; construction of all Improvements; and maintaining construction
defect insurance policy(ies) for a period of ten (10) years after conveyance of each Affordable
Unit to a qualified affordable household.
20 EXHIBIT 4
8OA-35
301.2 Developer's Obligation to Construct Improvements. Subject to all of
the other terms and conditions set forth in this Agreement, upon the purchase of a Phase,
Developer shall develop or cause the development of the improvements on the Sites in such
Phase in accordance with the Scope of Development, the City of Santa Ana's Municipal Code,
and the plans, drawings and documents submitted by Developer and reasonably approved by the
City as set forth herein.
301.3 Developer Fee. Subject to the terms and conditions of this Agreement,
Agency shall disburse to Developer the Developer Fee, in an amount equal to Fifty Thousand
($50,000.00) per Affordable Unit payable to Developer upon close of escrow with a qualified
Homebuyer.
301.4 Required Improvements. The Developer shall develop the
Improvements in accordance with the Scope of Development and the plans, drawings and
documents submitted by the Developer and approved by the City as set forth herein. The
Improvements shall generally consist of the construction of the following:
The proposed project consists of development of 17 single family dwelling units on 10 sites
scattered throughout the city. The project will be built in 3 phases. The homes will be attached
and will offer 3 and 4 bedrooms.. The homes will be sold to 7 low income and 10 moderate
income home buyers. The sales prices will range from approximately $166,000 to $385,000.
No. of No. Beds AMI
Address Type of Unit Units 3 4 Low Mod
719 N. Concord Single Family 2 2 2
812 N. Concord Single Family 1 1 1
1314 Eastwood Single Family 1 1 1
4809 W. Edinger Single Family 1 1 1
4010 & 4030 W. McFadden Att. Single Family 5 2 3 4 1
4030 & 4110 W. McFadden Att. Single Family 2 1 1 2
1029 McLean Single Family 1 1 1
1114 S. Cypress Single Family 2 1 1 1 1
1121 S. Cypress Single Family 1 1 1
717 E. T Single Family 1 1 1
Totals 17 9 8 7 10
The homes shall consist of approximately 2 different plans consisting of 3 and 4 bedrooms, 1 '/2
to 2 '/2 bathrooms and ranging in size from 1,300 sq. ft to 1,600 sq. ft. All homes shall have 2
stories and a 2-car garage. A number of the homes will have covered entry porches and all will
have private yards with enclosure fencing or walls.
301 B. Agency's Obligations. Agency agrees to pay all fees related to the development
of the Houses, including but not limited to: transportation fees, school district fees, and
sanitation fees.
21 EXHIBIT 4
8OA-36
302. Design Review.
302.1 Developer Submissions. Before commencement of construction of the
Improvements or other works of improvement upon the Sites in a Phase, and as a Condition
Precedent pursuant to Section 205, and at or prior to the times set forth herein, the Developer
shall submit to the City any plans and drawings (collectively, the "Design Development
Drawings") which may be required by the City with respect to any permits and entitlements
which are required to be obtained to develop the Improvements, and such plans for the
Improvements as required by the City in order for the Developer to obtain building and grading
permits for the Improvements in such Phase. Within thirty (30) days after the City's disapproval
or conditional approval of such plans, the Developer shall revise the portions of such plans
identified by the City as requiring revisions and resubmit the revised plans to the City.
302.1.1 Special Development Requirements. The Design
Development Drawings shall, to the extent compatible with Section 403 [Affordable Housing]
and applicable design requirements of the City of Santa Ana, incorporate design elements and
building practices that will reduce the maintenance and utility costs of home ownership, and also
reduce the adverse environmental impacts otherwise associated with residential construction.
Such design elements and practices may include, but are not limited to passive solar design,
environmentally sensitive landscaping, installation of energy efficient furnaces and water heaters
(Energy Star Appliances), and installation of high efficiency toilets.
302.2 City Review and Approval. The City and the Agency shall have all
rights to review and approve or disapprove all Design Development Drawings and other required
submittals in accordance with the Santa Ana Municipal Code, and nothing set forth in this
Agreement shall be construed as the City/Agency's approval of any or all of the Design
Development Drawings.
302.3 Basic Concept and Schematic Drawings. As provided herein, the Basic
Concept and Schematic Drawings for the Project were submitted to and approved by the Agency
concurrent with the Date of Agreement. The Basic Concept and Schematic Drawings generally
depict all Improvements and include a site plan, all exterior elevations, renderings showing the
exterior design, architectural style, and appearance of the affordable housing development,
landscaping concepts, and the interior floor plans for each House to be developed. The objective
of the Basic Concept and Schematic Drawings prepared and submitted by the Developer to the
City was to provide reasonable opportunity to evaluate the aesthetic appearance, neighborhood
compatibility, and general scope and quality of the Project on the Parcel. The Improvements
shall be developed in accordance with the approved Basic Concept and Schematic Drawings and
related documents, except for such changes which may be mutually agreed upon between the
Developer and the Executive Director. Any such changes shall be within the limitations
established in the approved Work Write-Up. In the event of any inconsistency between the Work
Write-Up and the Basic Concept and Schematic Drawings, the approved Work Write-Up shall
govern.
302.4 Revisions. Any and all change orders or revisions required by the City
and its inspectors which are required under the Municipal Code and all other applicable Uniform
Codes (e.g. Building, Plumbing, Fire, Electrical, etc.) and under other applicable laws and
22 EXHIBIT 4
8OA-37
regulations shall be included by the Developer in its Design Development Drawings and other
required submittals and shall be completed during the construction of the Improvements.
302.5 Defects in Plans. The Agency and the City shall not be responsible either
to the Developer or to third parties in any way for any defects in the Design Development
Drawings, nor for any structural or other defects in any work done according to the approved
Design Development Drawings, nor for any delays reasonably caused by the review and
approval processes established by this Section 302.
303. Land Use Approvals. The execution of this Agreement does not constitute the
granting of or a commitment to obtain any required land use permits, entitlements or approvals
required by the Agency or the City. Developer acknowledges and agrees that the plans prepared
for the Project shall be subject to the City's normal planning review process and further that such
plans may be subject to review by the City's Planning Commission.
304. Schedule of Performance. The Developer shall provide the concept plans to the
surrounding neighborhood, submit all Design Development Drawings, commence and complete
all construction of the Improvements, and satisfy all other obligations and conditions of this
Agreement within the times established therefore in the Schedule of Performance attached hereto
and incorporated herein as Exhibit J. The Developer shall perform all of its obligations
hereunder within the times established therefor in the Schedule of Performance.
305. Cost of Construction. Except to the extent otherwise expressly set forth in this
Agreement, all of the cost of acquisition of the Sites and the planning, designing, developing and
constructing all of the Improvements, preparation of the Sites and grading shall be borne solely
by the Developer.
306. Insurance/Bond Requirements.
306. A Insurance. The Developer shall take out and maintain or shall cause its contractor
to take out and maintain until the completion of construction pursuant to the terms of this
Agreement, a commercial general liability policy in the amount of Two Million Dollars
($2,000,000) combined single limit policy, and a comprehensive automobile liability policy in
the amount of One Million Dollars ($1,000,000), combined single limit, or such other policy
limits as the Agency may approve at its discretion, including contractual liability, as shall protect
the Developer, City and Agency from claims for such damages and which policy shall be issued
by an "A-" rated insurance carrier. Such policy or policies be written on an occurrence form.
The Developer shall also furnish or cause to be furnished to the Agency evidence satisfactory to
the Agency that Developer and any contractor with whom it has contracted for the performance
of work on the Sites or otherwise pursuant to this Agreement carries workers' compensation
insurance as required by law. The Developer shall furnish a certificate of insurance
countersigned by an authorized agent of the insurance carrier on a form approved by the Agency
setting forth the general provisions of the insurance coverage. This countersigned certificate
shall name the City and the Agency and their respective officers, agents, and employees as
additionally insured parties under the policy, and the certificates shall be accompanied by a duly
executed enforcement evidencing such additional insured status (the Agency's preferred
Additional Insured Endorsement is attached hereto as Exhibit L). The certificate and
23 EXHIBIT 4
8OA-38
endorsement by the insurance carrier shall contain a statement of obligation on the part of the
carrier to notify City and the Agency of any material change, cancellation or termination of the
coverage at least thirty (30) days in advance of the effective date of any such material change,
cancellation or termination. Coverage provided hereunder by the Developer shall be primary
insurance and not be contributing with any insurance maintained by the Agency or City, and the
policy shall contain such an endorsement. The insurance policy or the endorsement shall contain
a waiver of subrogation for the benefit of the City and the Agency. The required certificate shall
be furnished by the Developer at the time set forth in the Schedule of Performance.
306.A.1 Builders Risk Insurance. The Developer shall take out and
maintain Builders Risk Insurance coverage to cover the Improvements during the course of
construction. Such insurance shall provide coverage on an all risk basis, including theft and
vandalism, for accidental losses, damage or destruction of the property during construction. The
limit of insurance shall be in the amount of the full value of the project.
306.13. Payment, Performance and Completion Bonds. In the event Developer
hires a third party contractor to perform the construction of the Development, Developer shall
have obtained payment, performance and completion bonds for off-site improvements as may be
customarily required by the City, in an amount and from a surety company reasonably acceptable
to the Executive Director. All bonds shall be issued by good and solvent sureties qualified to do
business in California and shall have a rating of A or better.
307. Completion of Project. Developer shall commence and diligently proceed with
each Project. In any event, Developer shall complete each Project not later than the date
established therefor in the Schedule of Performance unless extended by agreement of Agency
and Developer.
308. Rights of Access. For purposes of assuring compliance with this Agreement,
representatives of the Agency shall have the right of access to the Sites, without charges or fees,
at normal construction hours during the period of construction for the purposes of this
Agreement, including but not limited to, the inspection of the work being performed in
constructing the Improvements so long as Agency representatives comply with all safety rules.
The Agency (or its representatives) shall, except in emergency situations, notify the Developer
prior to exercising its right pursuant to this Section 308. Agency hereby agrees to indemnify,
protect, defend and hold Developer, and all portions of the applicable Sites, free and harmless
from and against any and all loss, cost, liability or expense (including reasonable attorneys' fees)
caused by or arising from such entry by Agency or its representatives upon such Sites, and from
all mechanic's materialmen's and other liens resulting from any such entry.
309. Compliance with Laws. The Developer shall carry out the design and
construction of the Improvements in conformity with all applicable laws, including all applicable
state labor standards, the City zoning and development standards, building, plumbing,
mechanical and electrical codes, and all other provisions of the City of Santa Ana Municipal
Code, and all applicable disabled and handicapped access requirements, including without
limitation the Americans With Disabilities Act. 42 U.S.C. Section 12101, et seq., Government
Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil
Rights Act, Civil Code Sections 51, et seq.
24 EXHIBIT 4
8OA-39
309.1. Prevailing Wage Requirements. Developer and its contractors and
subcontractors shall comply with Labor Code Section 1720, et seq., and its implementing
regulations, regarding the payment of prevailing wages (the "Prevailing Wage Law") with regard
to the construction of the Improvements and the development of the Sites, to the extent such
sections are applicable to the construction of the Improvements and the development of the Sites.
Developer shall be solely responsible for determining and effectuating compliance with the
Prevailing Wage Law, and the Agency makes no representation as to the applicability or non-
applicability of the Prevailing Wage Law to the Improvements or the Sites.
309.2 Taxes and Assessments. Following each Closing, the Developer shall
pay prior to delinquency all ad valorem real estate taxes and assessments on the Sites conveyed
in such Closing, subject to the Developer's right to contest in good faith any such taxes. The
Developer shall remove or have removed any levy or attachment made on any of the Sites
conveyed in such Closing or any part of such Sites, or assure the satisfaction thereof within a
reasonable time. The Developer shall not apply for or receive any exemption from the payment
of property taxes or assessments on any interest in or to the Sites or the Improvements.
309.3 Liens and Stop Notices. The Developer shall not undertake any action
which would permit a third party to place on the Sites or any part thereof any lien or stop notice.
If a claim of a lien or stop notice is given or recorded affecting the Improvements the Developer
shall within thirty (30) days of such recording or service or within five (5) days of the Agency's
demand whichever last occurs:
a. pay and discharge the same; or
b. effect the release thereof by recording and delivering to the
Agency a surety bond in sufficient form and amount, or otherwise; or
c. provide the Agency with other assurance which the Agency deems,
in its sole discretion, to be satisfactory for the payment of such lien or bonded stop notice and for
the full and continuous protection of Agency from the effect of such lien or bonded stop notice.
310. Release of Construction Covenants. Promptly after completion of the
Improvements or any portion thereof in conformity with this Agreement, the Agency shall
furnish the Developer with a "Release of Construction Covenants," substantially in the form of
Exhibit I hereto which is incorporated herein by reference. The Agency shall not unreasonably
withhold such Release of Construction Covenants. The Release of Construction Covenants shall
be a conclusive determination of satisfactory completion of the applicable portion of the
Improvements and the Release of Construction Covenants shall so state. Any parry then owning
or thereafter purchasing, leasing, or otherwise acquiring any interest in any of the Sites shall not
(because of such ownership, purchase, lease or acquisition) incur any obligation or liability under
this Agreement except for those continuing covenants as set forth in Section 406 of this
Agreement.
If the Agency refuses or fails to furnish the Release of Construction Covenants,
after written request from the Developer, the Agency shall, within thirty (30) days of written
request therefor, provide the Developer with a written statement of the reasons the Agency
25 EXHIBIT 4
8OA-40
refused or failed to furnish the Release of Construction Covenants. The statement shall also
contain the Agency's position as to the actions the Developer must take to obtain the Release of
Construction Covenants. The Release of Construction Covenants shall not constitute evidence of
compliance with or satisfaction of any obligation of the Developer to any holder of any
mortgage, or any insurer of a mortgage securing money loaned to finance the Improvements, or
any part thereof. The Release of Construction Covenants is not a notice of completion as
referred to in Section 3093 of the California Civil Code.
311. Financing of the Improvements.
311.1 Approval of Financing. As required herein and as an Agency Condition
Precedent to each Closing of a Phase, Developer shall submit to Agency evidence that Developer
has obtained sufficient equity capital (for example, a Letter of Credit) or has obtained firm and
binding commitments for construction and permanent financing necessary to undertake the
development of the Sites in such Phase and the construction of the Improvements in such Phase
in accordance with this Agreement.
Such evidence of financing shall include the following: (a) a copy of a legally binding,
firm and enforceable loan commitment(s)/ Letter of Credit obtained by Developer from financial
institutions unrelated to Developer for the mortgage loan or loans for financing to fund the
construction, completion, operation and maintenance of the Improvements, subject to such
lenders' reasonable, customary and normal conditions and terms, and/or (b) a certification from
the chief financial officer of Developer that Developer has sufficient funds for such construction,
and that such funds have been committed to such construction, and/or other documentation
satisfactory to the Agency as evidence of other sources of capital sufficient to demonstrate that
Developer has adequate funds to cover the difference between the total cost of the acquisition of
the Sites, and construction and completion of the Improvements, less financing authorized by
those loans set forth in subparagraph (a) above.
The Agency Executive Director shall approve or disapprove such evidence of financing
capacity or commitments within fifteen (15) days of receipt of a complete submission. Approval
shall not be unreasonably withheld, delayed or conditioned. If the Agency Executive Director
shall disapprove any such evidence of financing, he or she shall do so by written Notice to
Developer stating the reasons for such disapproval. Upon receipt of the Agency Executive
Director's disapproval of the proposed financing, Developer shall either promptly obtain and
submit new evidence of financing to the Director or terminate this Agreement as provided in
Section 503 hereof. The Agency Executive Director shall approve or disapprove such new
evidence of financing in the same manner and within the same times established in this Section
311.1 for the approval or disapproval of the evidence of financing as initially submitted. If any
portion of Developer's financing consists of secured third party construction loans, Developer
shall close the approved construction financing at the Closing.
311.2 Conveyance for Financing. The Developer shall not enter into any
conveyance for financing prior to the Release of Construction Covenants without the prior
written approval of the Agency, which approval Agency agrees to give if any such conveyance
for financing is given to a responsible financial lending institution or person or entity ("Lender").
The Developer may enter into a conveyance for financing after the completion of the
26 EXHIBIT 4
8OA-41
Improvements as evidenced by the recording of the Release of Construction Covenants without
the approval of the Agency.
311.3. Holder Not Obligated to Construct Improvements. The Holder of any
mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions
of this Agreement to construct or complete the Improvements or any portion thereof, or to
guarantee such construction or completion; nor shall any covenant or any other provision in this
Agreement be construed so as to obligate such Holder. Nothing in this Agreement shall be
deemed to construe, permit or authorize any such Holder to devote the Sites to any uses or to
construct any improvements thereon, other than those uses or improvements provided for or
authorized by this Agreement. However, such Holder shall be bound at all times by the
conditions, covenants and restrictions set forth in the Developer Grant Deed (Exhibit F to this
Agreement).
311.4. Notice of Default to Mortgagee or Deed of Trust Holders; Right to
Cure. With respect to any mortgage or deed of trust granted by Developer as provided herein,
whenever the Agency may deliver any notice or demand to Developer with respect to any
Default by Developer in completion of construction of the Improvements, the Agency shall at
the same time deliver to each holder of record of any mortgage or deed of trust authorized by this
Agreement a copy of such notice or demand. Each such Holder shall (insofar as the rights
granted by the Agency are concerned) have the right, at its option, within sixty (60) days after
the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to
pursue with due diligence the cure or remedy of any such Default and to add the cost thereof to
the mortgage debt and the lien of its mortgage. Such Holder shall be permitted to undertake or
continue the construction or completion of the Improvements, or any portion thereof, if
necessary to conserve or protect the Improvements or construction already completed without
having first expressly assumed Developer's obligations to the Agency hereunder. Except as set
forth in the immediately preceding sentence, such Holder may enforce the terms of this
Agreement against the Agency only if it has first expressly assumed Developer's obligations to
the Agency under this Agreement by written agreement reasonably satisfactory to the Agency.
Agency shall fund its obligations under this Agreement to any Holder who undertakes to
complete the Improvements. Any such Holder properly completing such improvement shall be
entitled, upon compliance with the requirements of Section 310 of this Agreement, to a Release
of Construction Covenants. It is understood that a Holder shall be deemed to have satisfied the
sixty (60) day time limit set forth above for commencing to cure or remedy a Developer Default
which requires title and/or possession of the Sites (or portion thereof) if and to the extent any
such Holder has within such sixty (60) day period commenced proceedings to obtain title and/or
possession and thereafter the Holder diligently pursues such proceedings to completion and cures
or remedies the Default.
311.5 Right of the Agency to Cure Mortgage or Deed of Trust Default. In
the event of a mortgage or deed of trust default or breach by Developer prior to the completion of
the construction of any of the Improvements or any part thereof, Developer shall immediately
deliver to Agency a copy of any mortgage holder's notice of default. If the Holder of any
mortgage or deed of trust has not exercised its option to construct, the Agency shall have the
right, but not the obligation, to cure the default. In such event, the Agency shall be entitled to
reimbursement from Developer of all proper costs and expenses incurred by the Agency in
27 EXHIBIT 4
8OA-42
curing such default. The Agency shall also be entitled to a lien upon the Sites to the extent of
such costs and disbursements. Any such lien shall be junior and subordinate to the mortgages or
deeds of trust pursuant to this Section 311.
311.6 Changes Requested by Lender and Holder. In the event that a Lender
or Holder which has been approved pursuant to this Section 311 hereof requires one or more
amendments to this Agreement, or any of the attachments hereto, the Agency agrees to
reasonably consider approving such proposed amendment, and if such proposed amendment(s)
does not materially affect the Agency's interests hereunder, the Agency Executive Director or his
or her designee is hereby authorized to make such amendment(s) without further authorization
from the Agency.
400. COVENANTS AND RESTRICTIONS
401. Use in Accordance with Redevelopment Plan. The Developer covenants and
agrees for itself, its successors, assigns, and every successor in interest to the Sites, that upon the
Closing of a Phase and during construction and thereafter, until Developer's sale of the
Improvements on the Sites in such Phase, the Developer shall devote the Sites in such Phase to
the uses specified in the Redevelopment Plan and this Agreement for the periods of time
specified therein. All uses conducted on the Sites in such Phase, including, without limitation,
all activities undertaken by the Developer pursuant to this Agreement, shall conform to the
Redevelopment Plan and all applicable provisions of the Santa Ana Municipal Code. The
foregoing covenants shall run with the land.
402. Reserved.
403. Affordable Housing.
403.1 Number of Units. Developer agrees to make available, restrict occupancy
to, and sell single family Houses to be developed upon the Sites to "Low Income Households"
and "Moderate Income Households" (as those terms are herein defined) at an Affordable
Housing Cost (the "Affordable Units") as set forth in Section 301. In addition, the Developer
agrees to cooperate with the Agency in any subsidized loan program the Agency may in its sole
discretion make available to Low Income or Moderate Income Household purchasers of some or
all of the Affordable Units.
403.2 Selection of Buyers. The Developer shall provide the Agency with a
copy of its Marketing Plan which shall set forth how the Developer plans to provide interested
households with information about the Sites. The Developer shall be solely responsible for the
selection of qualified purchasers of the Affordable Units. Developer shall ensure that there will
be adequate homebuyer education with HUD approved pre- and post- purchase counseling.
403.2.1 Marketing, Outreach and Sales Plan. The goal of the
Marketing, Outreach and Sales Plan ("the Plan") is to insure that the marketing of affordable for-
sale housing be as broad and inclusive as possible in order to inform and attract as many
prospective buyers as possible. The Plan and the associated applicant selection procedures will
be targeted to purchasers regardless of race, color, religion, sex, disability status, familial status
28 EXHIBIT 4
8OA-43
or national origin. The Plan shall be provided to Agency by Developer, and is attached hereto as
Exhibit M.
Information shall also be provided on the Developer's website, City of Santa Ana
websites, City cable channel, Workforce Investment Board, Santa Ana Business Alliance, Santa
Ana Unified School District, Rancho Santiago Community College District, Community
Development Resource Network Newsletter, households displaced by redevelopment projects in
the City and through neighborhood associations.
403.3 Income of Buyers. Prior to the sale of any Affordable Unit to a
purchaser, the Developer shall submit to the Agency a completed income computation and
certification form from each purchaser of an Affordable Unit in the form which is provided by
the Agency. Each purchaser shall certify, to the best of the purchaser's knowledge, that it is a
Low Income Household or a Moderate Income Household, as applicable, and meets the
eligibility requirements established for the Affordable Unit. The Developer shall obtain an
income certification (copy of Income Certification Form attached hereto as Exhibit N) from the
prospective purchaser of an Affordable Unit and shall certify that, to Developer's Actual
Knowledge, the income of the prospective purchaser is truthfully set forth in the Income
Certification Form. For purposes of such certification, the Developer shall verify the income
certification of the prospective purchaser in one or more of the following methods reasonably
acceptable to the Agency:
(a) obtain two (2) paycheck stubs from the prospective purchaser's
two (2) most recent pay period.
(b) obtain a true copy of an income tax return from the prospective
purchaser for the most recent tax year in which a return was filed.
(c) obtain an income verification certification from the employer of
the prospective purchaser.
(d) obtain an income verification certification from the Social Security
Administration and/or the California Department of Social Services if the prospective purchaser
receives assistance from such agencies.
(e) obtain an alternate form of income verification reasonably
acceptable to the Agency, if none of the above forms of verification is available to the
Developer.
403.4 Homebuyer Documents. At the closing of escrow for the purchase of
each Affordable Unit, the Agency will require each Low Income Household and each Moderate
Income Household purchasing such Unit to execute the following documents:
a. the Affordable Housing Resale Restrictions (attached hereto as Exhibit F). The
Affordable Housing Resale Restrictions shall permit sales of an Affordable Unit sold to a Low
Income Household only to a qualified Low Income Household or of an Affordable Unit sold to a
Moderate Income Household only to a qualified Moderate Income Household, in each case, at an
Affordable Housing Cost. The Affordable Housing Resale Restrictions must be fully explained
29 EXHIBIT 4
8OA-44
to the Purchaser and the entire explanation and execution of said document must be videotaped
by the Developer. A copy of said videotape shall be placed on a CD which shall be kept by the
Developer and the Agency.
b.the Notice of Affordability on Transfer of Property (which shall be for a term of
at least forty-five (45) years which is attached hereto as Exhibit G);
c. the Agency Promissory Note (attached hereto as Exhibit O ). The principal
amount of the Agency Promissory Note shall be in an amount equal to the difference between the
sales price of the Affordable Unit and the fair market value of such unit as if no restriction were
placed thereon, as determined by the sales price of equivalent unrestricted units on the Sites at
the time of such sale. If there are no equivalent unrestricted units on the Sites at the time of sale,
the fair market value of the unit shall be determined by appraisal which is reasonably acceptable
to the Agency;
d. Agency Deed of Trust (attached hereto as Exhibit P); and,
e. the Homebuyer Loan Agreement (attached hereto as Exhibit Q).
403.5 Affordable Housing Property Tax. Developer shall be responsible for
applying to the County of Orange to request that the property tax be based on the restricted value
with the affordability covenants that are recorded against each Affordable Unit.
403.6 Maintenance. The Affordability Restrictions on Transfer of Property and
the Affordable Housing Agreement shall require each of the households to maintain their
property in conformance with local and state requirements.
403.7 Reasonable Efforts to Sell Affordable Units. The Developer agrees to
exercise reasonable efforts consistent with prudent business practices to sell all of the Houses
developed on the Sites to owner-occupants as soon as practical following the completion of the
construction. The Developer agrees that the Houses developed on the Sites shall not be sold to
the Developer or any parry/employee related to the Developer.
404. Transfer to Homebuyer. Developer shall transfer each completed House to a
qualified Homebuyer no later than one (1) year after Closing of the Phase in which such House
in included.
405. Nondiscrimination Covenants. Developer covenants by and for itself and any
successors in interest that, upon Developer's acquisition of the Sites and during the period of
Developer's ownership thereof there shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, disability, sex, marital
status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Sites, nor shall Developer itself or any person claiming under or through it
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Sites. Developer shall refrain from restricting the rental, sale or lease of the Sites
on the basis of race, color, religion, disability, sex, marital status, ancestry or national origin of
any person.
30 EXHIBIT 4
8OA-45
405.1 Required Clauses. All such deeds, leases or contracts shall contain or be
subject to substantially the following nondiscrimination or nonsegregation clauses:
A. In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person or group
of persons on account of race, color, creed, religion, disability, sex, marital status, national origin
or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the grantee or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the land 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 race, color, creed, religion, disability, sex, marital status, national
origin, or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment
of the premises herein leased nor shall the lessee himself or herself, or any person claiming under
or through him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy of 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 race, color, creed, religion,
disability, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself
or any person claiming under or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises."
405.2 Nondiscrimination in Employment. Developer certifies and agrees that
all persons employed or applying for employment by it, its affiliates, subsidiaries, or holding
companies, and all subcontractors, bidders and vendors, are and will be treated equally by it
without regard to, or because of race, color, religion, ancestry, national origin, sex, age,
pregnancy, childbirth or related medical condition, medical condition or physical or mental
disability, and in compliance with Title VII of the Civil Rights Act of 1964, 42 U S.C. Section
2000, et seq., the Federal Equal Pay Act of 1963, 29 U.S.C. Section 206(d), the Age
Discrimination in Employment Act of 1967, 29 U S.C. Section 621, et seq., the Immigration
Reform and Control Act of 1986, 8 U.S.C. Section 1324b, et seq., 42 U.S.C. Section 1981, the
California Fair Employment and Housing Act, Cal. Government Code Section 12900, et seq., the
California Equal Pay Law, Cal. Labor Code Section 1197.5, Cal. Government Code Section
11135, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., and all other
applicable anti-discrimination laws and regulations of the United States and the State of
California as they now exist or may hereafter be amended.
31 EXHIBIT 4
8OA-46
406. Effect of Violation of the Terms and Provisions of this Agreement after
Completion of Construction. The Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the land, for and in its own right
and for the purposes of protecting the interest of the community and other parties, public or
private, in whose favor and for whose benefit this Agreement and the covenants running with the
land have been provided, without regard to whether the Agency has been, remains or is an owner
of any land or interest therein in the Sites or in each Project. The Agency shall have the right, if
the Agreement 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 Agreement and covenants may be entitled.
The covenants contained in this Agreement shall remain in effect as follows:
406.1 The environmental covenants set forth in Sections 208.5, 208.6 and 208.7
shall remain in effect in perpetuity.
406.2 The covenants pertaining to use of the Sites which are set forth in Section
401 shall remain in effect for the term of the Redevelopment Plan.
406.3 The covenants pertaining to the use of the Sites as affordable housing set
forth in Section 403 shall remain in effect for a period of not less than forty-five (45) years from
the date that the property is conveyed to a Low Income Household or a Moderate Income
Household.
406.4 The covenants pertaining to maintenance of the Sites and all
improvements thereon, as set forth in Section 404, shall remain in effect for the Term of
Affordability.
406.5 The covenants against discrimination, as set forth in Section 405 shall
remain in effect in perpetuity.
407. Monitoring. Throughout the Term of Affordability, Developer shall comply (and
Developer shall endeavor to cause each Program Participant to comply) with Health and Safety
Code Section 33418 and all applicable record keeping and monitoring requirements and each
Program Participant shall annually complete and submit to Agency such information as is
required by Agency in order to ensure continued compliance with the occupancy requirements
contained herein.
500. DEFAULTS, TERMINATION AND REMEDIES
501. Default Remedies. Subject to the extensions of time set forth in Section 502 of
this Agreement, failure by either party to perform any action or covenant required by this
Agreement within the time periods provided herein following notice and failure to cure as
described hereafter, constitutes a "Default" under this Agreement. A party claiming a Default
shall give written notice of Default to the other party specifying the Default complained of.
Except as otherwise expressly provided in this Agreement, the claimant shall not institute any
proceeding against any other party, and the other party shall not be in Default if such party
within thirty (30) days from receipt of such notice immediately, with due diligence, commences
to cure, correct or remedy such failure or delay and shall complete such cure, correction or
32 EXHIBIT 4
8OA-47
remedy with diligence.
502. Institution of Legal Actions. In addition to any other rights or remedies and
subject to the restriction otherwise set forth in this Agreement, either party may institute an
action at law or equity to seek specific performance of the terms of this Agreement, or to cure,
correct or remedy any Default, to recover damages for any Default, or to obtain any other
remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in
the Courts of the County of Orange, State of California, or in the District of the United States
District Court in which such county is located.
503. Termination by the Developer. In the event that the Developer is not in default
under this Agreement and the Agency does not tender title to the Sites in a Phase pursuant to the
Grant Deed in the manner and condition and by the date provided in this Agreement; or one or
more of the Developer's Conditions Precedent to the Closing is not fulfilled on or before the time
set forth in the Schedule of Performance and such failure is not caused by the Developer; or in
the event of any default of the Agency prior to the Closing which is not cured within the time set
forth in Section 601 hereof, and any such failure is not cured within the applicable time period
after written demand by the Developer, then this Agreement may, at the option of the Developer,
be terminated by written notice thereof to the Agency. From the date of the written notice of
termination of this Agreement by the Developer to the Agency and thereafter this Agreement
shall be deemed terminated as to the purchase of any Phases not already purchased and there
shall be no further rights or obligations between the parties with respect to such future purchases,
except that the parties may pursue any other remedies they may have hereunder, including,
without limitation, the right of Developer to commence an action for monetary damages against
Agency for all costs and expenses incurred by Developer in the investigation and acquisition of
the Sites. Such termination shall not affect the obligations of Developer with respect to Sites
purchased prior to the termination of this Agreement.
504. Termination by the Agency. In the event that the Agency is not in Default under
this Agreement, Developer (or any successor in interest) assigns or attempts to assign the
Agreement or any rights therein or in the Sites in violation of this Agreement; or one or more of
the Agency's Conditions Precedent to the Closing is not fulfilled on or before the time set forth
in the Schedule of Performance and such failure is not caused by the Agency or City; or the
Developer is otherwise in default of this Agreement and fails to cure such default within the time
set forth in Section 501 hereof, then this Agreement and any right of the Developer or any
assignee or transferee with respect to or arising out of the Agreement or the Sites, shall, at the
option of the Agency, be terminated by notice from Agency to the Developer and thereafter this
Agreement shall be deemed terminated as to the sale of any Phases not already transferred to
Developer and there shall be no further rights or obligations between the parties with respect to
such future transfers, except that the parties may pursue any other remedies they may have
hereunder. Such termination shall not affect the obligations of Developer with respect to Sites
purchased prior to the termination of this Agreement.
505. Re-entry and Revesting of Title in the Agency After the Closing and Prior to
Completion of Construction.
33 EXHIBIT 4
8OA-48
505.1 The Agency has the right, at its election, to reenter and take possession of
the Sites, with all improvements thereon, and terminate and revest in the Agency the estate
conveyed to the Developer as provided in the Grant Deed.
505.2 The Grant Deed shall contain appropriate reference and provisions to give
effect to the Agency's right under specified circumstances, to re-enter and take possession of the
Sites, with all improvements thereon, and to terminate and revest in the Agency the estate
conveyed to the Developer. In no event, however, shall the Agency have the right to re-enter and
take possession of any portion of the Sites on which a completed House is located. Upon the
revesting in the Agency of title to the Sites as provided in this Section 505, the Agency shall,
pursuant to its responsibilities under state law, use its reasonable efforts to resell the Sites as
soon and in such manner as the Agency shall find feasible and consistent with the objectives of
such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and
responsible party or parties (as determined by the Agency) who will assume the obligation of
making or completing the Improvements, or such Improvements in their stead as shall be
satisfactory to the Agency and in accordance with the uses specified for such Sites or part thereof
in the Redevelopment Plan. Upon such resale of the Sites, the net proceeds thereof after
repayment of any mortgage or deed of trust encumbering the Sites which is permitted by this
Agreement shall be applied:
A. First, to reimburse the Agency, on its own behalf or on behalf of
the City, all costs and expenses incurred by the Agency, excluding City and Agency staff costs,
but specifically, including, but not limited to, any expenditures by the Agency or the City in
connection with the recapture, management and resale of the Sites in the applicable Phase or part
thereof (but less any income derived by the Agency from such Sites or part thereof in connection
with such management); all taxes, assessments and water or sewer charges with respect to the
Sites or part thereof which the Developer has not paid (or, in the event that such Sites are exempt
from taxation or assessment of such charges during the period of ownership thereof by the
Agency, an amount, if paid, equal to such taxes, assessments, or charges as would have been
payable if such Sites were not so exempt); any payments made or necessary to be made to
discharge any encumbrance or liens existing on such Sites or part thereof at the time or revesting
of title thereto in the Agency, or to discharge or prevent from attaching or being made any
subsequent encumbrances or liens due to obligation, default or acts of the City, its successors or
transferees; any expenditure made or obligation incurred with respect to the making or
completion of the Improvements or any part thereof on such Sites, or part thereof, and any
amounts otherwise owing the Agency, and in the event additional proceeds are thereafter
available, then
B. Second, to reimburse the Developer, its successor or transferee, up
to the amount equal to the sum of (a) the costs incurred for the development of the Sites in the
applicable Phase and for the Improvements existing on such Sites at the time of reentry and
possession, less (b) any gains or income withdrawn or made by the Developer from such Sites or
the Improvements thereon prior to the re-entry by Agency.
C. Any balance remaining after such reimbursements shall be retained
by the Agency as its property. The rights established in this Section 605 are not intended to be
exclusive of any other right, power or remedy, but each and every such right, power, and remedy
34 EXHIBIT 4
8OA-49
shall be cumulative and concurrent and shall be in addition to any other right, power and remedy
authorized herein or now or hereafter existing at law or in equity. These rights are to be
interpreted in light of the fact that the Agency will have conveyed the Sites to the Developer for
redevelopment purposes, particularly for development of for sale affordable housing, and not for
speculation in undeveloped land.
506. Acceptance of Service of Process. In the event that any legal action is
commenced by the Developer against the Agency, service of process on the Agency shall be
made by personal service upon the Executive Director of the Agency or in such other manner as
may be provided by law. In the event that any legal action is commenced by the Agency against
the Developer, service of process on the Developer shall be made by personal service upon the
President of the Developer or in such other manner as may be provided by law.
507. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either
party of one or more of such right or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party.
508. Inaction Not a Waiver of Default. Any failures or delays by either party in
asserting any of its rights and remedies as to any Default shall not operate as a waiver of any
Default or of any such rights or remedies, or deprive either such party of its right to institute and
maintain any actions or proceedings which it may deem necessary to protect, assert or enforce
any such rights or remedies.
509. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
600. GENERAL PROVISIONS
601. Notices, Demands and Communications Between the Parties. Any approval,
disapproval, demand, document or other notice ("Notice") which either party may desire to give
to the other party under this Agreement must be in writing and may be given by any
commercially acceptable means to the party to whom the Notice is directed at the address of the
party as set forth below, or at any other address as that party may later designate by Notice.
To Agency: Redevelopment Agency of the City of Santa Ana
20 Civic Center Plaza, M-37
Santa Ana, California 92780
Attention: Executive Director
Tel.: (714) 667-2240
Fax: (714) 667-2225
To Developer: Habitat for Humanity of Orange County
2200 South Ritchey
Santa Ana, California 92705
Attention: Mark Korando
35 EXHIBIT 4
8OA-50
Tel.: (714) 434-6200
Fax: (714) 210-0663
Any written notice, demand or communication shall be deemed received immediately if
delivered by hand and shall be deemed received on the third day from the date it is postmarked if
delivered by registered or certified mail.
602. Developer Indemnity. Developer shall indemnify, defend and hold harmless
Agency, its officers, agents, employees and volunteers from and against any and all loss or
damage, expenses, injuries, death to any person, damage to real or personal property, claim,
demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or proceeding of
any kind arising out of Developer's actions with respect to implementation of this Agreement,
the sale of the Property by Agency to Developer, securing of financing, design development
drawings, engineering, construction, reconstruction, structural integrity of the Houses to be built
on the Sites, maintenance of the Sites, operation, and subsequent sale of the Houses on the Sites,
including but not limited to:
A. the presence, release, use, generation, discharge, storage or
disposal of any Hazardous Materials, on, under, in or about, or the transportation of any such
hazardous materials to or from, the Sites after the Closing Date;
B. the violation, or alleged violation, of any statute, ordinance, order,
rule, regulation, permit, judgment or license relating to the use, generation, release, discharge,
storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the
Sites which occurs after the Closing Date;
C. latent material defects in construction;
D. any construction defect;
E. personal injury, including death, of the employees, agents, officers,
and/or volunteers of Developer, Developer Parties, and/or any subcontractors, independent
contractors, partners, and/or subsidiaries;
F. property damage claims of the employees, agents, officers, and/or
volunteers of Developer, Developer Parties, and/or any subcontractors, independent contractors,
partners, and/or subsidiaries;
G. delay in construction;
H. personal injury, including death, of any third party;
I. property damage claims of any third party; and
J. the failure to make required real estate disclosures to subsequent
buyers of homes on the Sites.
36 EXHIBIT 4
8OA-51
Developer's obligation to indemnify as set forth in this Agreement shall extend to loss or
damage, expenses, injuries, death to any person, damage to real or personal property, claim,
demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or proceedings of
any kind that, are discovered or accrue, either before or after the termination of this Agreement.
Notwithstanding the foregoing, Developer shall not be required to indemnify and hold
harmless Agency or the City for liability attributable to the active negligence or intentional
misconduct of Agency or the City or any of their boards, officers, employees, representatives or
agents.
603. Enforced Delay; Extension of Times of Performance. In addition to specific
provisions of this Agreement, performance by either party hereunder shall not be deemed to be in
Default, and all performance and other dates specified in this Agreement shall be extended,
where delays or Defaults are due to causes beyond the control or without the fault of the party
claiming an extension of time to perform, which may include: war; insurrection; strikes;
lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; acts
of terrorism; epidemics; quarantine restrictions; freight embargoes; lack of transportation;
governmental restrictions or priority; litigation; unusually severe weather; inability to secure
necessary labor, materials or tools, delays of any contractor, subcontractor or supplier; acts or
omissions of the other parry; acts or failures to act of the City or any other public or
governmental agency or entity (other than the acts or failures to act of the Agency which shall
not excuse performance by the Agency). Notwithstanding anything to the contrary in this
Agreement, an extension of time for any such cause shall be for the period of the enforced delay
and shall commence to run from the time of the commencement of the cause, if notice by the
party claiming such extension is sent to the other party within thirty (30) days of the
commencement of the cause. Times of performance under this Agreement may also be extended
in writing by the mutual agreement of Agency and Developer. Notwithstanding any provision of
this Agreement to the contrary, the lack of funding to complete the Improvements shall not
constitute grounds of enforced delay pursuant to this Section 603.
604. Transfers of Interest in Sites or Agreement.
604.1 Prohibition. The qualifications and identity of the Developer are of
particular concern to the Agency. It is because of those qualifications and identity that the
Agency has entered into this Agreement with the Developer. For the period commencing upon
the date of this Agreement and until the expiration of the use and operations covenants which are
set forth in Section 401 hereof, no voluntary or involuntary successor in interest of the Developer
shall acquire any rights or power under this Agreement, nor shall the Developer make any total
or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole
or any part of the Sites or the Improvements thereon without prior written approval of the
Agency, except as expressly set forth herein. Any proposed total or partial sale, transfer,
conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the Sites or
the Improvements will entitle the Agency to its right of re-entry and revesting as set forth in
Section 505 hereof.
604.2 Permitted Transfers. Notwithstanding any other provision of this
Agreement to the contrary, Agency approval of an assignment of this Agreement or conveyance
37 EXHIBIT 4
8OA-52
of the Sites or Improvements, or any part thereof, shall not be required in connection with any of
the following:
(a) Any transfers to an entity or entities in which the Developer retains
ownership or beneficial interest and retains management and control of the transferee entity or
entities.
(b) The conveyance or dedication of any portion of the Sites to the
City or other appropriate governmental agency, or the granting of easements or permits to
facilitate construction of the Improvements (as defined herein).
(c) Any requested assignment for financing purposes (subject to such
financing being considered and approved by the Agency pursuant to Section 311 herein),
including the grant of a deed of trust to secure the funds necessary for land acquisition,
construction and permanent financing of the Improvements.
Section 403 hereof.
(d) Any sale of the Houses to owner-occupants, pursuant to
In the event of an assignment by Developer under subparagraphs (a) or (c)
above not requiring the Agency's prior approval, Developer nevertheless agrees that at least
thirty (30) days prior to such assignment it shall give written notice to Agency of such
assignment and satisfactory evidence that the assignee has assumed jointly with Developer the
obligations of this Agreement.
604.3 Agency Consideration of Requested Transfer. The Agency agrees that
it will not unreasonably withhold approval of a request made pursuant to this Section 604,
provided the Developer delivers written notice to the Agency requesting such approval. Such
notice shall be accompanied by sufficient evidence regarding the proposed assignee's or
purchaser's development and/or operational qualifications and experience, and its financial
commitments and resources, in sufficient detail to enable the Agency to evaluate the proposed
assignee or purchaser pursuant to the criteria set forth in this Section 604 and as reasonably
determined by the Agency. The Agency shall evaluate each proposed transferee or assignee on
the basis of its development and/or qualifications and experience in the construction of facilities
similar to the Improvements, and its financial commitments and resources, and may reasonably
disapprove any proposed transferee or assignee, during the period for which this Section 604
applies, which the Agency determines does not posses equal or better qualifications that the
transferring Developer. An assignment and assumption agreement in form satisfactory to the
Agency's legal counsel shall also be required for all proposed assignments. Within thirty (30)
days after the receipt of the Developer's written notice requesting Agency approval of an
assignment or transfer pursuant to this Section 604, the Agency shall either approve or
disapprove such proposed assignment or shall respond in writing by stating what further
information, if any, the Agency reasonably requires in order to determine the request complete
and determine whether or not to grant the requested approval. Upon receipt of such a response,
the Developer shall promptly furnish to the Agency such further information as may be
reasonably requested. Upon an approved assignment made pursuant to this Section 604,
38 EXHIBIT 4
8OA-53
Developer shall be relieved of its obligations hereunder and Agency shall look to the assignee for
performance of such obligations.
604.4 Successors and Assigns. All of the terms, covenants and conditions of
this Agreement shall be binding upon the Developer and its permitted successors and assigns.
Whenever the term "Developer" is used in this Agreement, such term shall include any other
permitted successors and assigns as herein provided.
604.5 Assignment by Agency. The Agency may assign or transfer any of its
rights or obligations under this Agreement with the approval of the Developer, which approval
shall not be unreasonably withheld; provided, however, that the Agency may assign or transfer
any of its interests hereunder to the City at any time without the consent of the Developer.
605. Non-Liability of Officials and Employees of the Agency and the Developer.
No member, official or employee of the Agency or the City shall be personally liable to the
Developer, or any successor in interest, in the event of any Default or breach by the Agency (or
the City) or for any amount which may become due to the Developer or its successors, or on any
obligations under the terms of this Agreement.
606. Relationship between Agency and Developer. It is hereby acknowledged that
the relationship between the Agency and the Developer is not that of a partnership or joint
venture and that the Agency and the Developer shall not be deemed or construed for any purpose
to be the agent of the other. Accordingly, except as expressly provided herein or in the
Attachments hereto, the Agency shall have no rights, powers, duties or obligations with respect
to the development, operation, maintenance or management of the Improvements.
607. Agency Approvals and Actions. The Agency shall maintain authority of this
Agreement and the authority to implement this Agreement through the Agency Executive
Director (or his duly authorized representative). The Agency Executive Director shall have the
authority to make approvals, sign sales and escrow documents, issue interpretations, waive
provisions, and/or enter into amendments of this Agreement on behalf of the Agency so long as
such actions do not materially or substantially change the uses or development permitted on the
Sites, or materially or substantially add to the costs incurred or to be incurred by the Agency as
specified herein, and such approvals, interpretation, waivers and/or amendments may include
extensions of time to perform as specified in the Schedule of Performance. Notwithstanding the
foregoing, Developer shall be permitted to rely upon the actions and approvals of the Agency
Executive Director and shall not be expected to inquire into whether the Agency Executive
Director has exceeded her/his authority. All other material and/or substantial interpretations,
waivers, or amendments shall require the consideration, action and written consent of the
Agency Board.
608. Counterparts. This Agreement may be signed in multiple counterparts which,
when signed by all parties, shall constitute a binding agreement and shall be deemed to be an
original.
609. Integration. This Agreement contains the entire understanding between the
parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous
39 EXHIBIT 4
8OA-54
agreements, understandings, representations and statements, oral or written, are merged in this
Agreement and shall be of no further force or effect. Each party is entering this Agreement
based solely upon the representations set forth herein and upon each party's own independent
investigation of any and all facts such party deems material. This Agreement includes pages 1
through 43 and Exhibits A through Q, which constitute the entire understanding and agreement
of the parties, notwithstanding any previous negotiations or agreements between the parties or
their predecessors in interest with respect to all or any part of the subject matter hereof.
610. Real Estate Brokerage Commission. The Agency and the Developer each
represent and warrant to the other that no broker or finder is entitled to any commission or
finder's fee in connection with the Developer's acquisition of the Sites from the Agency. The
parties agree to defend and hold harmless the other party from any claim to any such commission
or fee from any broker, agent or finder with respect to this Agreement which is payable by such
party.
611. Attorney's Fees. In any action between the parties to interpret, enforce, reform,
modify, rescind, or otherwise in connection with any of the terms or provisions of this
Agreement, the prevailing parry in the action shall be entitled, in addition to damages, injunctive
relief, or any other relief to which it might be entitled, reasonable costs and expenses including,
without limitation, litigation costs and reasonable attorneys' fees.
612. Titles and Captions. Titles and captions are for convenience of reference only
and do not define, describe or limit the scope or the intent of this Agreement or of any of its
terms. Reference to section numbers are to sections in this Agreement, unless expressly stated
otherwise.
613. Interpretation. As used in this Agreement, masculine, feminine or neuter gender
and the singular or plural number shall each be deemed to include the others where and when the
context so dictates. The word "including" shall be construed as if followed by the words
"without limitation." This Agreement shall be interpreted as though prepared jointly by both
parties.
614. No Waiver. A waiver by either party of a breach of any of the covenants,
conditions or agreements under this Agreement to be performed by the other party shall not be
construed as a waiver of any succeeding breach of the same or other covenants, agreements,
restrictions or conditions of this Agreement.
615. Modifications. Any alteration, change or modification of or to this Agreement,
in order to become effective, shall be made in writing and in each instance signed on behalf of
each party.
616. Severability. If any term, provision, condition or covenant of this Agreement and
its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted by law.
40 EXHIBIT 4
8OA-55
617. Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day escrow opens), and including
the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also
excluded. The term "holiday" shall mean all holidays as specified in Section 6700 and 6701 of
the California Government Code. If any act is to be done by a particular time during a day, that
time shall be Pacific Time Zone time.
618. Legal Advice. Each party represents and warrants to the other the following: they
have carefully read this Agreement, and in signing this Agreement, they do so with full
knowledge of any right which they may have; they have received independent legal advice from
their respective legal counsel as to the matters set forth in this Agreement, or have knowingly
chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have
freely signed this Agreement without any reliance upon any agreement, promise, statement or
representation by or on behalf of the other party, or their respective agents, employees, or
attorneys, except as specifically set forth in this Agreement, and without duress or coercion,
whether economic or otherwise.
619. Time of Essence; Force Majeure. Time is expressly made of the essence with
respect to the performance by the Agency and the Developer of each and every obligation and
condition of this Agreement. Notwithstanding the foregoing, the time for performance of any
obligation by either party shall be extended by the duration of any event constituting Force
Maj eure.
620. Cooperation. Each party agrees to cooperate with the other in this transaction
and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or
appropriate to carry out the purposes and intent of this Agreement including, but not limited to,
releases or additional agreements.
621. Maintenance Covenants. During the time of Developer's ownership of the
Sites, the Developer shall maintain the Sites and all improvements thereon, including all
landscaping, in compliance with the terms of all applicable provisions of the City of Santa Ana
Municipal Code. Developer shall be relieved of such obligation upon the transfer of a House to
the Homebuyer, at which time the parties expect the Homebuyer to undertake such maintenance.
622. Conflicts of Interest. No member, official or employee of the Agency shall have
any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or
employee participate in any decision relating to the Agreement which affects his/her personal
interests or the interests of any corporation, partnership or association in which he/she is directly
or indirectly interested.
623. Date of Agreement. The date of this Agreement shall be the date set forth in the
first paragraph hereof.
41 EXHIBIT 4
8OA-56
IN WITNESS WHEREOF, the Agency and the Developer have executed this Agreement on
the date set forth hereinabove.
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, a public body,
corporate and politic
By:
ATTEST:
Maria D. Huizar, Secretary
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
Agency General Counsel
By: Lisa E. Storck, Assistant Counsel
Cynthia J. Nelson, Executive Director
DEVELOPER:
Habitat for Humanity of Orange County
By:
Mark Korando, Senior Vice President
By:
Title:
42 EXHIBIT 4
8OA-57
LIST OF EXHIBITS
Exhibit A - Legal Description(s)
Exhibit B - Site Map
Exhibit C - Developer Promissory Note
Exhibit D - Developer Deed of Trust
Exhibit E - Notice of Affordability Restrictions on Transfer of Property
Exhibit F - Grant Deed (Agency to Developer)
Exhibit G -Project Budget
Exhibit H - Release of Construction Covenants
Exhibit I - Schedule of Performance
Exhibit J - Scope of Development
Exhibit K - Additional Insured Endorsement
Exhibit L - Marketing Plan
Exhibit M - Income Statement and Definitions
Exhibit N - Agency Promissory Note (Homebuyer)
Exhibit O - Agency Deed of Trust (Homebuyer)
Exhibit P - Homebuyer Loan Agreement
Exhibit Q - Affordable Housing Resale Restrictions
8OA-58