HomeMy WebLinkAbout2020-11-10 - AGENDA REPORTS - FAMILY PROMISE CEQA (2)Agenda Item: 10
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CITY OF SANTA CLARITA AGENDA REPORT
PUBLIC HEARINGS
CITY MANAGER APPROVAL:1
DATE: November 10, 2020
SUBJECT: TRANSFER OF PROPERTY TO FAMILY PROMISE OF SANTA
CLARITA VALLEY AND APPROVAL OF RESOLUTION MAKING
FINDINGS UNDER GOVERNMENT CODE SECTIONS 52201, 54221,
AND 37364 AND DETERMINING THE PROJECT IS EXEMPT
FROM CEQA
DEPARTMENT: City Manager's Office
PRESENTER: Jerrid McKenna
RECOMMENDED ACTION
City Council:
1. Conduct a Public Hearing pursuant to Government Code Section 52201;
2. Adopt the attached Resolution approving a Disposition Development Agreement, an
Affordable Housing Regulatory Agreement, and a Grant Deed, adopting findings pursuant to
Government Code Sections 52201, 54221, and 37364 and determining the project is exempt
from CEQA; and
3. Authorize the City Manager, or designee, to execute all necessary documents, subject to City
Attorney approval, necessary to transfer property to Family Promise of Santa Clarita Valley.
BACKGROUND
About Fami X Promise of Santa Clarita Valley
Family Promise of Santa Clarita Valley (Family Promise SCV) is a local branch of a national
organization of more than 200 affiliates across 43 states. The organization's mission is to assist
families and children experiencing homelessness by providing housing and support services to
assist clients in achieving independence.
Similar to their operations in Santa Clarita, the national organization encourages a community -
based model of temporarily housing clients in local congregations and using volunteers to help
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with transportation and meals. Family Promise SCV has operated this way in Santa Clarita for
more than a decade, assisting up to four families at a time graduate out of homelessness. In
addition to temporary housing, Family Promise SCV assists hundreds of families per year with
toiletries, supplies, clothing, and assistance with referrals for other needed services.
Current Challenges
Since 2015, participation in the program to temporarily house clients has been slowly
diminishing due to a decline in donations, attendance, and volunteers at churchesa trend seen
nationwide. In 2019, Family Promise SCV had only 11 host churches supporting their temporary
housing model. Due to the lack of participation from churches, Family Promise SCV has had to
purchase hotel/motel rooms in emergencies, which comes with significant costs and instability in
the program for already struggling families.
In addition to the instability of the temporary housing program, in 2018, Family Promise SCV
was unable to renew the lease on their administrative building due to the owner's interest in
selling the property. Family Promise SCV was relocated temporarily to a small modular on Heart
of the Canyons Church property in Newhall.
Due to these challenges, during the development of the Community Plan to Address
Homelessness in 2018, stakeholders indicated the research and acquisition of a permanent
facility for Family Promise SCV as a priority in the community.
Leveraged Assets
Since 2018, Family Promise SCV has been actively searching for permanent space to administer
their program with onsite, stable housing for their clients. In that time, they have garnered
support from HomeAid Los Angeles and a local developer, Williams Homes, to assist with
construction of a future project. The Board of HomeAid preliminarily approved the support of
this project on December 2, 2019, committing to approximately 50 percent of construction costs
in addition to support for identifying additional grants to support this development. Williams
Homes has committed to being the Project Builder for the development, donating in -kind
services for architecture, design, and project management.
Shortly after the Community Plan to Address Homelessness was developed, the City was
awarded an implementation grant from the County of Los Angeles for $300,000 to assist with
this specific priority. This funding is currently set to expire December 31, 2021.
Properiy Research and Identification
With this amount of support, City staff partnered with Family Promise SCV and began
researching potential City -owned properties that could leverage these other resources acquired.
Staff identified property located at 23652 Newhall Avenue as a feasible location for this project.
The property is 32,230 square -feet of vacant land located adjacent to the Three Oaks
development. The property was originally purchased with the intent to develop a larger Three
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Oaks project; however, an additional parcel was unable to be acquired and ultimately only one
phase of Three Oaks was constructed and completed in 2017.
A Phase 1 Environmental Site Assessment (ESA) was completed on the property in August
2010. Based on the findings of this Phase I ESA, no recognized environmental conditions were
identified. In addition, the site is exempt from environmental review under the California
Environmental Quality Act (CEQA) Sections 15332 (In -fill Development), 15194 (Affordable
Housing), and 15192 (Threshold Requirements for Exemptions for Agricultural Housing,
Affordable Housing, and Residential In -fill Projects). Since the project is not proposing the
usage of any federal funding, the National Environmental Policy Act (NEPA) does not apply.
Since the parcel was purchased with restricted Redevelopment Agency (RDA) Bond Proceeds,
the intended future use of this site is restricted to transitional or affordable housing and must
comply with all applicable housing regulations. This would restrict the use of this property as
affordable housing in perpetuity and require that Family Promise SCV clients living on the
property have household income of not more than 80 percent of Area Median Income (AMI).
The scope of the proposed project by Family Promise SCV of four affordable housing units and
administrative office space for homeless clients fits within the intended use of the funds.
The parcel is located in the Community Commercial (CC) Zone. The proposed project is
consistent with the City's General Plan and with the zoning code with the approval of a
Conditional Use Permit (CUP).
As part of the research and due diligence on this property, a recent appraisal was completed on
the parcel in February 2020, valuing the property at $1.6 million.
Pursuant to Government Code Section 52201, the City may transfer property to create an
economic opportunity, including a housing opportunity, if a report is prepared and a public
hearing is held. The report required by section 52201 is attached to this staff report and has been
available for review by the public for two weeks in advance of the Council's consideration of
this property transfer. The transfer of the property is further authorized by Government Code
sections 54221 and 37364 as more fully detailed in the resolution attached to this staff report.
Conclusion
Since the creation of the City Council Homeless Issues Ad Hoc Committee —comprised of
Mayor Smyth and Councilwoman McLean —in 2017, the Council has spearheaded the
development of a comprehensive local community plan; facilitated the creation of a local
Community Task Force on Homelessness with more than 30 local service providers; donated two
parcels worth more than $1 million; distributed multiple grants to Bridge to Home for service
expansion and to hire a project manager to expedite the construction of the permanent shelter
project; and took immediate action to relocate Bridge to Home to the Newhall Community
Center to avoid reduction in capacity at the beginning of the COVID-19 pandemic.
With recent focus on the local homeless population in conjunction with the significant resources
obtained by Family Promise SCV available to be leveraged, City staff recommends the City
transfer ownership of the subject property on Newhall Avenue to Family Promise SCV.
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Staff met with the City Council Homeless Issues Ad Hoc Committee on October 27, 2020, to
review this proposal. The Ad Hoc Committee recommended bringing this item before the City
Council for consideration at the November 10, 2020, regular meeting.
As required by Government Code Section 52201, the City published two consecutive notices for
the Public Hearing in local media two weeks prior to this hearing on Tuesday, October 27, 2020,
and Tuesday, November 3, 2020. As a courtesy, the City also mailed letters (attached) of this
proposed item to surrounding property owners within 1,000 feet of the site on Tuesday,
October 27, 2020.
In order to execute the transfer of property, staff is seeking approval from the City Council to
authorize the City Manager, or designee, to execute all necessary documentation, including, but
not limited to, the attached Disposition Development Agreement (DDA), Regulatory Agreement,
and Grant Deed and for the City Council to adopt the attached resolution.
ALTERNATIVE ACTION
None determined at this time.
FISCAL IMPACT
Upon execution of the necessary documents, the property located at 23652 Newhall Avenue will
be transferred to Family Promise SCV.
ATTACHMENTS
Public Hearing Notice
Gov Code 52201 Report
Letters to Property Owners
Santa Clarita - Family Promise - DDA
Exhibit A - Legal Description of Property
Exhibit B - Regulatory Agreement
Exhibit C - Grant Deed Santa Clarita - Family Promise
Resolution
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10.a
CITY OF SANTA CLARITA
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the City Council of the City of Santa Clarita will conduct a
public hearing on Tuesday, November 10, 2020, at 6:00 p.m. or as soon thereafter as the matter
may be heard, in the Santa Clarita City Hall Council Chambers, located at 23920 Valencia Blvd,
Santa Clarita, CA 91355, which public hearing will not be open for physical attendance by the
public, but the public may participate through the Zoom meeting information as listed on the
posted agenda.
Proponents, opponents, and any interested persons may be heard on this matter at that time.
Further information may be obtained by contacting the City Manager's Office, 23920 Valencia
Boulevard, Suite 300, Santa Clarita, CA, 91355; (661) 255-4921, Jerrid McKenna, Assistant to
the City Manager.
At the hearing, the Santa Clarita City Council will consider a report prepared pursuant to
Government Code Section 52201, concerning the transfer of a 32,230 square foot parcel located
at 23652 Newhall Avenue for the purposes of an affordable housing/transitional housing project.
The Council will also consider approval of the transfer of the property and a Disposition and
Development Agreement ("DDA") with Family Promise SCV for the construction of a 4 unit
housing project on the site, with accompanying administrative building for the provision of
homeless services. The DDA contemplates development of the land by the developer from
private and other funds as well as a Measure H grant.
A copy of the report and the proposed DDA are available for inspection and copying in the office
of the City Clerk, 23920 Valencia Blvd., Santa Clarita, CA 91355 between the hours of 8 a.m.
and 5 p.m. Monday through Friday, or online at.h. t:GPS� ;./Lwww.santa-
'll , :�..::. ;orrr„(ICI, alrrr, (, ,r; a ,IC oc...,,irr ent?!id:::..::::.:....:.. (52201 Report) and . iras,//u�u�u�,s .� t :�...
............... . ;orrr/INN, airrr, / . ,r; a ,IC oc:.: ,irnent?ll ::::::.:1;, .... (DDA).
Any person interested in these matters is invited to attend and present testimony either for or
against the above item. If you challenge the proposed action in court, you may be limited to
raising only those issues you or someone else raised at the public hearing described in this notice
or in written correspondence delivered to the City Council at or prior to the public hearing.
Dated October 22, 2020
Mary Cusick, MMC
City Clerk
Publish Dates: October 27, 2020, and November 3, 2020
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ECONOMIC OPPORTUNITY
SUBSIDY REPORT
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23652 Newhall Avenue, Santa Clarita, CA
Government Code Section 52201 Report
Property Description
The property known as 23652 Newhall Avenue, Santa Clarita, CA (Property) is Assessor's Parcel
Number 2833-016-901. The lot is 32,230 square feet in size and is currently an undeveloped,
vacant parcel.
Sale Agreement
The Disposition and Development Agreement (DDA) between the City of Santa Clarita (City) and
Family Promise SCV, a local nonprofit organization, is attached to this report. Laurie Ender is the
active member of the Board of Family Promise SCV tasked with execution of this property
transfer.
Cost of the Agreement
The cost of the agreement to the City includes the land acquisition. There are no loans or bonds
included in this agreement. The property was originally acquired by the City's Housing
Successor Agency in December of 2010 for $731,372. The property was acquired using a
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combination of Redevelopment Agency (RDA) Bond Proceeds ($438,249) and Community
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Development Block Grant (CDBG) funds ($239,123).
In 2011 the ownership of this parcel was moved from the RDA as a separate agency to the City
as the Housing Successor to the RDA.
In 2015, as approved by the City and Department of Housing and Urban Development (HUD),
the CDBG funds used in this acquisition were reallocated and replaced with additional RDA
Bond Proceeds. Therefore, all funds tied to this parcel are RDA Bond Proceeds totaling
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$731,372.
Estimated Value of the Interest to be Conveyed Determined at the Highest and Best Use
Permitted Under the General Plan/Zoning
The Property is designated "Community Commercial Zone" as defined in the City's Unified
Development Code (UDC):
17.34.010 Community Commercial (CC) Zone.
The community commercial (CC) zoning designation is intended for business providing
retail and service uses that primarily serve the local market. Representative uses include
restaurants, clothing stores, hardware and auto parts stores, grocery markets,
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pharmacies, banks and financial services, specialty retail, theaters and nightclubs, day
care centers, and medical services. These areas are typically located along arterial
streets or at the intersections of high traffic corridors. Multiple family dwellings
(including live/work units) may be permitted in this zone.
The parcel was originally purchased with the intent to develop a larger Three Oaks project;
however, additional parcels adjacent to the Three Oaks development were unable to be
acquired and ultimately only one phase of Three Oaks was constructed and completed in 2017
According to HUD, the Bond Proceeds utilized to purchase the parcel are intended to be used to
create affordable housing. Family Promise SCV's proposed site plan of four (4) units of
affordable housing with onsite facilities for program services and administrative office related
to and in support of transitional and affordable housing is within the scope of intended uses for
these funds. In addition, this proposed project includes office space for Family Promise SCV to
provide services (i.e. case management, job preparation, referrals, etc.) to hundreds of other
clients each year.
The Property had been appraised in February 2020 at $1,612,000. The land continues to have
minimal value to the community "as is," with no other interest generated from other
stakeholders since the acquisition.
Estimated Value of the Interest to be Conveyed Determined at the Use and with the
Conditions, Covenants, and Development Costs required by the Sale
The recent appraisal was completed without the consideration of the significant conditions
placed on this parcel required by the funding used to originally purchase the Property. The
Property was acquired with funding which restricts the future use of this parcel exclusively for
transitional or affordable housing. This type of development generates zero to subsidized
monthly rent payments from tenants. Therefore, the estimated value of this property becomes
significantly lower if not completely invaluable for most uses without other leveraged assets.
The transfer of this property at no cost to Family Promise SCV leverages development costs
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from three other agencies that have committed to developing this project. This includes fifty
percent (50%) of the construction costs from Home Aid (roughly estimated at $400,000), in -kind
architecture, design and construction services by Williams Homes (roughly estimated at
$100,000), and a $300,000 Measure H Grant received by the City from the County of Los
Angeles specifically for this proposed project identified in the Community Plan to Address
Homelessness. In total, the leveraged assets by this transfer is $800,000.
In addition to these leveraged assets, this project increases the supply of transitional housing in
the community and provides office space for other services to individuals and families
experiencing homelessness.
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Why the Transfer of the Property Will Assist in the Creation of Economic Opportunity
The DDA between the City and Family Promise SCV contemplates the transfer of a vacant parcel
located at 23652 Newhall Avenue in the City of Santa Clarita, California. The Property is located
on a main thoroughfare and primary entrance to the community, surrounded by a new
affordable housing project, Three Oaks, and other mixed -use developments. Sitting vacant for
decades, this parcel is currently aesthetically displeasing and generates no benefit to the
community. Furthermore, the Property is located within one mile of Old Town Newhall. In the
last decade, the City, and community, have invested significant capital toward revitalization of
this area and stimulating significant economic opportunity.
The transfer of the Property will have a positive supporting economic impact on the community
in the City of Santa Clarita by adding to the revitalizing efforts centered around Old Town
Newhall and improve the aesthetics of a major thoroughfare traveled by thousands of drivers
daily. This project will be transferred to a well-known and respected local nonprofit service
provider affiliated with a national organization, Family Promise, with over 200 affiliates
nationwide.
The planned construction of the proposed project on the Property will be done by an
experienced local developer with support from an international organization, HomeAid Los
Angeles, an affiliate of HomeAid America, to create a high -quality facility on this currently
vacant parcel.
It is for the reasons identified above that the transfer of this Property will generate a unique
economic opportunity in the City of Santa Clarita.
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city of
SANTA CLARITA
23920 Valencia Boulevard • Santa Clarita, California 91355-2196
Phone: (661) 259-2489 o FAX: (661) 259-8125
www.santa-clarita, com
CITY OF SANTA CLARITA
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the City Council of the City of Santa Clarita will conduct a
public hearing on Tuesday, November 10, 2020, at 6:00 p.m. or as soon thereafter as the matter
may be heard, in the Santa Clarita City Hall Council Chambers, located at 23920 Valencia Blvd,
Santa Clarita, CA 91355, which public hearing will not be open for physical attendance by the
public, but the public may participate through the Zoom meeting information as listed on the
posted agenda.
Proponents, opponents, and any interested persons may be heard on this matter at that time.
Further information may be obtained by contacting the City Manager's Office, 23920 Valencia
Boulevard, Suite 300, Santa Clarita, CA, 91355; (661) 255-4921, Jerrid McKenna, Assistant to
the City Manager.
At the hearing, the Santa Clarita City Council will consider a report prepared pursuant to
Govermnent Code Section 52201, concerning the transfer of a 32,230 square foot parcel located
at 23652 Newhall Avenue for the purposes of an affordable housing/transitional housing project.
The Council will also consider approval of the transfer of the property and a Disposition and
Development Agreement ("DDA") with Family Promise SCV for the construction of a 4 unit
housing project on the site, with accompanying administrative building for the provision of
homeless services. The DDA contemplates development of the land by the developer from
private and other funds as well as a Measure H grant.
A copy of the report and the proposed DDA are available for inspection and copying in the office
of the City Clerk, 23920 Valencia Blvd., Santa Clarita, CA 91355 between the hours of 8 a.m.
and 5 p.m. Monday through Friday, or online at.https://www.santa-
ciarita.com/Home/ShowDocument?id=18818 (52201 Report) and https://www.santa-
clarita.com/Home/ShowDocument?id=18820 (DDA).
Any person interested in these matters is invited to attend and present testimony either for or
against the above item. If you challenge the proposed action in court, you may be limited to
raising only those issues you or someone else raised at the public hearing described in this notice
or in written correspondence delivered to the City Council at or prior to the public hearing.
Dated October 22, 2020
Mary Cusick, MMC
City Clerk
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DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA CLARITA
and
FAMILY PROMISE OF SANTA CLARITA VALLEY
2020
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THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement") is
entered into effective as of , 2020 ("Effective Date") by and between the City of
Santa Clarita, a California municipal corporation ("City") and Family Promise of Santa Clarita
Valley, a California not for profit public benefit corporation ("Developer"). The City and the
Developer are collectively referred to herein as the "Parties."
RECITALS
A. The City is the owner of the real property located at 23652 Newhall Avenue, in
the City of Santa Clarita, known as Los Angeles County Assessor's Parcel No. 2833-016-037,
and more particularly described in Exhibit A attached hereto (the "Property").
B. Developer has proposed the development of a transitional and affordable housing
development on the Property consisting of 4 apartments that will be transitional or affordable to
low-income households (the "Project").
C. As set forth in Resolution adopted on 20 , the City
Council has determined that the Project qualifies for exemption from review under the California
Environmental Quality Act ("CEQA").
D. Upon satisfaction of the conditions precedent set forth in this Agreement and
subject to the terms and conditions set forth herein, the City will convey the Property to
Developer for development of the Project.
E. Concurrently with the conveyance of the Property to Developer, among other
documents, Developer will execute an Affordable Housing Regulatory Agreement and
Declaration of Restrictive Covenants that will require rents for the residential units to be used for
transitional housing or as affordable housing to low-income households in perpetuity.
F. A material inducement to City to enter into this Agreement is the agreement by
Developer to develop the Project within the time periods specified herein and in accordance with
the provisions hereof, and the City would be unwilling to enter into this Agreement in the
absence of an enforceable commitment by Developer to take such actions and complete such
work in accordance with such provisions and within such time periods.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows.
ARTICLE I
DEFINITIONS; EXHIBITS
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1.1 Definitions. The following terms shall have the meanings set forth below
whenever used in this Agreement and the Exhibits attached hereto. Additional terms are defined
in the Recitals and text of this Agreement.
"Affordable Rent" is defined in the Regulatory Agreement.
"Applicable Laws" is defined in Section 4.8.
"Area Median Income" is defined in the Regulatory Agreement.
"Authorized Representative" means the City Manager of the City of
Santa Clarita, or his or her designee.
"City" means the City of Santa Clarita, California, a municipal
corporation.
"City Council" means the City Council of the City of Santa Clarita,
California.
"City Documents" means collectively, this Agreement, the Regulatory
Agreement and the Grant Deed.
"Closing Date" or "Close of Escrow" shall be the date that escrow closes
for the conveyance of the Property to Developer.
"Conditions of Approval" is defined in Section 4.4.
"Developer" means Family Promise of Santa Clarita Valley, a California
not for profit public benefit corporation, identified with the California Secretary
of State as Corporation No. C3223875.
"Developer's Permitted Exceptions" is defined in Section 3.1.
"Environmental Laws" is defined in Section 5.8.2.
"Escrow Agent" is defined in Section 3.2.
"Force Majeure" is defined in Section 10.2.
"Grant Deed" is defined in Section 3.1.
"Hazardous Material" is defined in Section 5.8.1.
"Improvements" means the improvements located or to be located on the
Property including without limitation, the residential dwelling units to be
constructed pursuant to this Agreement.
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"Indemnitees" is defined in Section 4.8.
"Official Records" means the Official Records of Los Angeles County
"Owner's Title Policy" is defined in Section 3.6.
"Project" is defined in Recital B.
"Property" is defined in Recital A and described in Exhibit A.
"Regulatory Agreement" is defined in Section 3.5.
"Repurchase Option" is defined in Section 8.9.
"Title Company" is defined in Section 3.2.
"Title Report" is defined in Section 3.1.
"Transfer" is defined in Section 6.2.
1.2 Exhibits. The following Exhibits are attached hereto and incorporated into this
Agreement by this reference:
A Legal Description of the Property
B Form of Regulatory Agreement
C Form of Grant Deed
ARTICLE II
REPRESENTATIONS; EFFECTIVE DATE; PROJECT SCOPE; FINANCING PLAN
2.1 Representations
2.1.1 Developer's Representations. Developer covenants that until the
expiration or earlier termination of this Agreement, upon learning of any fact or condition which
would cause any of the warranties and representations in this Section 2.1.1 to be untrue,
Developer shall immediately give written notice of such fact or condition to City. Developer
acknowledges that City shall rely upon Developer's representations made herein notwithstanding
any investigation made by or on behalf of City. Developer hereby represents, warrants, and
covenants that the following are true and correct as of the Effective Date, and shall be true and
correct as of the Closing Date.
(a) Organization. Developer is a not for profit public benefit corporation,
duly organized and in good standing under the laws of the State of California and tax-exempt
under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
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(b) Authority of Developer. Developer has full power and authority to
execute and deliver this Agreement and all other documents or instruments executed and
delivered by Developer, or to be executed and delivered by Developer pursuant to or in
connection with this Agreement, and to perform and observe the terms and provisions of all of
the foregoing.
(c) Authority of Persons Executing Documents. This Agreement and all other
documents or instruments executed and delivered by Developer, or to be executed and delivered
by Developer pursuant to or in connection with to this Agreement, have been executed and
delivered, or will be executed and delivered, by persons who are duly authorized to execute and
deliver the same for and on behalf of Developer, and all actions required under Developer's
organizational documents and applicable governing law for the authorization, execution, delivery
and performance of this Agreement and all other documents or instruments executed and
delivered by Developer, or to be executed and delivered by Developer pursuant to or in
connection with this Agreement, have been duly taken or will have been duly taken (to the extent
such actions are required) as of the date of execution and delivery of such documents.
(d) Valid and Binding Agreements. This Agreement and all other documents
or instruments which have been executed and delivered by Developer or will be executed and
delivered by Developer pursuant to or in connection with this Agreement constitute or, if not yet
executed or delivered, will when so executed and delivered, constitute, legal, valid and binding
obligations of Developer, enforceable in accordance with their respective terms, subject to laws
affecting creditors' rights and principles of equity.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of
this Agreement or any other documents or instruments executed and delivered by Developer, or
to be executed or delivered by Developer pursuant to or in connection with this Agreement, nor
the performance of any provision, condition, covenant or other term hereof or thereof, will
conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or
order of any court, board, commission or agency binding on Developer, or any provision of the
organizational documents of Developer, or will conflict with or constitute a breach of or a default
under any agreement to which Developer is a parry, or will result in the creation or imposition of
any lien upon any assets or property of Developer, other than liens established pursuant hereto.
(f) Pending Proceedings. Except as disclosed in writing to the City prior to
execution of this Agreement, Developer is not in default under any law or regulation or under
any order of any court, board, commission or agency whatsoever, and, to the best of its
knowledge, there are no claims, actions, suits or proceedings pending or, to the knowledge of
Developer, threatened against or affecting Developer or the Property, at law or in equity, before
or by any court, board, commission or agency. Developer is not the subject of a bankruptcy or
insolvency proceeding.
2.1.2 City's Representations. City covenants that until the expiration or earlier
termination of this Agreement, upon learning of any fact or condition which would cause any of
the warranties and representations in this Section 2.1.2 to be untrue, City shall immediately give
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written notice of such fact or condition to Developer. City acknowledges that Developer shall
rely upon City's representations made herein notwithstanding any investigation made by or on
behalf of Developer. City hereby represents, warrants, and covenants that the following are true
and correct as of the Effective Date and shall be true and correct as of the Closing Date.
(a) Authority of City. City has full power and authority to execute and deliver
this Agreement and all other documents or instruments executed and delivered by City, or to be
executed and delivered by City pursuant to or in connection with this Agreement, and to perform
and observe the terms and provisions of all of the foregoing.
(b) Valid and Binding Agreements. This Agreement and all other documents
or instruments which have been executed and delivered by City or will be executed and delivered
by City pursuant to or in connection with this Agreement constitute or, if not yet executed or
delivered, will when so executed and delivered, constitute, legal, valid and binding obligations of
City, enforceable in accordance with their respective terms, subject to laws affecting creditors'
rights and principles of equity.
(c) Pending Proceedings. No litigation or other proceeding (whether
administrative or otherwise) is outstanding or has been threatened which would prevent, hinder
or delay the ability of the City to perform its obligations under this Agreement.
2.2 Effective Date. The obligations of Developer and City hereunder shall be
effective as of the Effective Date which date is set forth in the preamble to this Agreement.
2.3 Project Scope. The Project will include construction of four (4) transitional or
affordable housing units on the Property, and a separate structure to house facilities for program
services and administrative office related to and in support of transitional and affordable housing.
All of the residential units will be subject to affordability and occupancy restrictions in
accordance with the Regulatory Agreement.
2.4 Design Review, Conditions of Approval, Environmental Review. Developer will
submit design documents for the Project including a site plan, elevations, and schematic
drawings for review and approval by the City Planning Commission and/or City Council, as
applicable. The design documents shall be consistent with the conceptual plans that Developer
previously submitted to City in Developer's response to City's Request for Proposals except as
otherwise approved by the City. If the City does not approve any submittal, Developer shall
submit revised design documents that address the City's objections. Developer agrees that it
shall construct the Project in accordance with the approved design documents except as
otherwise approved by the City.
The City Council has determined that as proposed, the Project qualifies for exemption
from CEQA review pursuant to CEQA Guidelines Section 15194 pertaining to affordable
housing projects. In the event that the proposed Project is modified or other circumstances arise
that would affect the Proj ect's eligibility for exemption from CEQA review, prior to submitting
an application for land use approvals for the Project, Developer shall cause to be performed any
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additional environmental studies required by the City in connection with environmental review
of the Project in accordance with CEQA. If additional environmental review is required under
CEQA, Developer acknowledges that such review may involve preparation and consideration of
additional information, as well as consideration of input from interested organizations and
individuals, and Developer acknowledges that nothing in this Agreement is intended to, or shall
be interpreted as a City commitment to approve a project or program prior to completion of any
required CEQA review. In addition, Developer acknowledges that any required approvals by
any other local, state or federal agency may require additional environmental review, and that
any approval by the City shall not bind any other local, state or federal agency to approve the
Project or to impose mitigation measures that are consistent with the terms of this Agreement or
with the terms of any mitigation measures required by the City pursuant to the City's
environmental review. Prior to the Close of Escrow, Developer shall have the right to terminate
this Agreement by delivery of written notice to City if the City disapproves the Project following
completion of the environmental review process or Developer determines that implementation of
any required environmental mitigation measures would cause development of the Project to
become economically infeasible.
ARTICLE III
DISPOSITION OF THE PROPERTY; CONDITIONS
PRECEDENT TO CLOSING
3.1 Purchase and Sale of Property; Review of Title. Developer acknowledges receipt
of a preliminary title report for the Property issued by First American Title Company and dated
September 22, 2010 (the "Title Report"). Provided that all conditions precedent set forth in
this Agreement have been satisfied or waived, City shall convey to Developer, and Developer
shall purchase from City, the fee interest in the Property in accordance with and subject to the
terms, covenants and conditions of this Agreement, subject to: (a) the provisions and effects of
the City Documents, (b) applicable building and zoning laws and regulations, (c) any lien for
current taxes and assessments or taxes and assessments accruing for periods subsequent to
recordation of the Grant Deed, (d) exception numbers through as shown on the Title
Report, (e) liens and encumbrances created or permitted by Developer or Developer's affiliates,
employees or agents, and (f) such other conditions, liens, encumbrances, restrictions, easements
and exceptions as Developer may approve in writing, which approval shall not be unreasonably
withheld. All of the foregoing are collectively hereinafter referred to as "Developer's Permitted
Exceptions." Conveyance of the Property shall be effectuated by grant deed substantially in the
form attached hereto as Exhibit C (the "Grant Deed").
3.1.1 Supplemental Title Review. If any new or additional items appear of
record after the date of the Title Report, Developer shall obtain from the Title Company an
updated preliminary title report ("Supplemental Report"). Following receipt of the
Supplemental Report and documents pertaining to new exceptions appearing on the
Supplemental Report, Developer shall have five (5) business days to provide to City Developer's
written objections to the Supplemental Report. If Developer fails to provide written objections
within such period, Developer shall be deemed to have accepted the Supplemental Report and all
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new exceptions listed therein. If Developer provides written notice of objections to new
exceptions listed in the Supplemental Report, City shall have two (2) business days to notify
Developer of whether City will undertake to remove the exceptions to which Developer has
objected. If City fails to respond, City shall be deemed to have elected not to cure any of the
exceptions, and in such case, Developer may elect to proceed to Close of Escrow or terminate
this Agreement by written notice to City. Notwithstanding anything to the contrary in this
Section 3.1.1: (a) Developer shall be deemed to have accepted any new exceptions that pertain
to liens and encumbrances created or permitted by Developer or Developer's affiliates,
employees or agents, and (b) City shall take action to remove any new monetary liens affecting
title to the Property that are created or permitted by City.
3.2 Escrow. City and Developer shall open escrow with a mutually agreed upon title
company ("Escrow Agent'' or "Title Company") in order to consummate the conveyance of the
Property to Developer and the closing of escrow for the transactions contemplated hereby.
3.3 Costs of Closing and Escrow; Legal Fees. Developer shall pay all title insurance
premiums for policies Developer elects to purchase in connection with the conveyance of the
Property and the financing of the Project, and Developer shall pay all recording fees, transfer
taxes, escrow fees and closing costs incurred in connection with the acquisition of the Property
and the financing of the Project. Developer shall pay for the cost of any lender's policy of title
insurance that City elects to acquire in connection with the transactions contemplated hereby.
Property taxes and assessments shall be prorated as of the Closing Date. City and Developer
shall provide Escrow Agent with a copy of this Agreement, which together with such
supplemental instructions as City or Developer may provide and which are consistent with the
intent of this Agreement or which are otherwise mutually agreed upon by City and Developer,
shall serve as escrow instructions for the Close of Escrow. At Close of Escrow, Developer shall
pay City's legal fees incurred in connection with the transactions contemplated by this
Agreement, including without limitation, the negotiation and preparation of this Agreement and
the City Documents, and review of other documents required in connection with the conveyance
of the Property, the financing of the Project, and the Close of Escrow, in a maximum aggregate
amount not to exceed Twenty -Five Thousand Dollars ($25,000).
3.4 Closing. The Closing Date shall be a date that is mutually acceptable to the
Parties and shall occur within thirty (30) days following the Developer's satisfaction or City's
waiver of all conditions precedent to conveyance of the Property as set forth in Sections 3.5 and
3_6. Prior to the Close of Escrow, Developer shall deposit into escrow the City Documents to
which Developer is a party, executed and acknowledged as applicable, and Developer's share of
closing costs. Provided that all conditions precedent to Close of Escrow have been satisfied or
waived, City shall deposit into escrow the executed Grant Deed and executed copies of the City
Documents to which City is a party. On the Closing Date, the Escrow Agent shall cause the
Grant Deed, the Deed of Trust and the Regulatory Agreement to be recorded in the Official
Records.
3.5 City's Conditions to Closing. City's obligation to convey the Property to
Developer is conditioned upon the satisfaction of the terms and conditions set forth in this
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Section 3.5, unless any such condition is waived in writing by the City acting in the discretion of
its Authorized Representative.
(a) No Default. There shall exist no condition, event or act which would
constitute a material breach or default under this Agreement or any other City Document, or
which, upon the giving of notice or the passage of time, or both, would constitute such a material
breach or default.
(b) Representations. All representations and warranties of Developer
contained herein or in any other City Document or certificate delivered in connection with the
transactions contemplated by this Agreement shall be true and correct in all material respects as
of the Close of Escrow.
(c) Due Authorization and Good Standing. Developer shall have delivered to
City copies of all of the following, including updated versions of any of the following that have
been amended or modified since the date of delivery to City pursuant to Section 4.7: (i) a
certificate of good standing, certified by the Secretary of State, indicating that Developer is
properly organized and authorized to do business in the State of California; (ii) copies of
Developer's articles of incorporation and bylaws, each certified by Developer's corporate
Secretary as accurate, complete, and in full force and effect; (iii) verification of Developer's tax-
exempt status; and (iv) a resolution certified by Developer's corporate Secretary authorizing
Developer's execution of and performance under this Agreement and the other City Documents.
(d) Execution, Delivery and Recordation of Documents. Developer shall have
executed, acknowledged as applicable, and delivered to City this Agreement, and all other
documents required in connection with the transactions contemplated hereby, including without
limitation an Affordable Housing Regulatory Agreement and Declaration of Restrictive
Covenants substantially in the form attached hereto as Exhibit B (the "Regulatory Agreement")
and a counter -signed original of the Grant Deed. Concurrently with the Close of Escrow, the
Grant Deed and the Regulatory Agreement shall be recorded in the Official Records.
3.6 Developer's Conditions to Closing. Developer's obligation to proceed with the
acquisition of the Property is subject to the satisfaction or Developer's waiver of the following
conditions:
(a) No Default. City shall not be in default under the terms of this
Agreement, and all representations and warranties of City contained herein shall be true and
correct in all material respects;
(b) Execution of Documents. City shall have executed and acknowledged the
Grant Deed, the Regulatory Agreement and all other City Documents to which the City is a
parry, and shall have delivered such documents into escrow; and
(c) Owner's Title Policy. The Title Company shall, upon payment of the
premium therefor, be ready to issue an Owner's Title Insurance Policy for the benefit and
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protection of Developer ("Owner's Title Policy") showing title to the Property vested in
Developer, subject only to Developer's Permitted Exceptions and containing such endorsements
as Developer may reasonably require, with the cost of such Owner's Title Policy, including any
endorsements, to be paid by Developer.
3.7 No Obligation to Close Escrow Upon Default. Notwithstanding any other
provision of this Agreement, the City shall have no obligation to authorize the Close of Escrow
following:
(i) the failure of any of Developer's representations and warranties made in
this Agreement or in connection with this Agreement to be true and correct in all material
respects;
(ii) the termination of this Agreement; or
(iii) the occurrence of an Event of Default under any City Document which
remains uncured beyond any applicable cure period, or the existence of any condition, event or
act which upon the giving of notice or the passage of time or both would constitute an Event of
Default under any City Document.
ARTICLE IV
DEVELOPMENT AND USE OF THE PROPERTY
4.1 Development Schedule. Subject to Force Majeure and any extension permitted
pursuant to Section 10.2, Developer shall apply for building permits for the Project no later than
May 10, 2021, shall commence construction of the Project by not later than six (6) months
following issuance of the building permits, and shall diligently prosecute to completion the
construction of the Project to enable City to issue final certificates of occupancy for all
residential units in the Project within eighteen (18) months following commencement of
construction. Developer shall use diligent and commercially reasonable efforts to perform
Developer's obligations under this Agreement within the times periods set forth herein, and if no
such time is provided, within a reasonable time, designed to permit issuance of final certificates
of occupancy for all residential units in the Project by the date specified in this Section 4.1.
Subject to Force Majeure and the City's issuance of permits and approvals, Developer's failure
to commence or complete construction of the Project in accordance with the time periods
specified in this Section 4.1 shall be an Event of Developer Default hereunder.
4.2 Grant of $300,000 to Developer for Project, Cost of Conveyance and
Con strn cti On
(a) The City has received grant funds in the amount of Three Hundred
Thousand Dollars ($300,000) from the Los Angeles County Homeless Initiative for
implementation of the City's homeless plan (the "Measure H Funding"). At the Close
of Escrow, as long as all of the City's Conditions to Closing set forth in Section 3.7 have
been satisfied by Developer and all conditions for Measure H Funding for the City's
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homeless plan implementation have been met, the City shall award a grant in the amount
of the Measure H Funding to Developer for the Project to be used by Developer for the
Costs of Conveyance of the Property and Construction of the Project.
(b) Developer shall be solely responsible, in part with the use of Measure H
Funding, for all direct and indirect costs and expenses incurred in connection with the
conveyance of the Property, including without limitation appraisal fees, title reports and
any environmental assessments Developer elects to undertake. Except as expressly set
forth herein, all costs of designing, developing and constructing the Project and
compliance with the Conditions of Approval, including without limitation all off -site and
on -site improvements required by City in connection therewith, shall be borne solely by
Developer, in part with the use of Measure H Funding, and shall not be an obligation of
the City.
4.3 Permits and Approvals; Payment of Fees; Cooperation. Developer acknowledges
that the execution of this Agreement by the City does not constitute City approval for the
purpose of the issuance of building permits, does not relieve Developer from the obligation to
apply for and to obtain from the City and all other agencies with jurisdiction over the Property,
all necessary approvals, entitlements, and permits for the construction of the Project (including
without limitation the approval of architectural plans, and the approval of the Project in
compliance with CEQA and if applicable, NEPA), nor does it limit in any manner the discretion
of the City or any other agency in the approval process. Prior to the Close of Escrow for the
Project, Developer shall provide evidence satisfactory to City that receipt of all entitlements,
licenses and approvals required for the construction of the Project, including without limitation,
use permits, and is subject only to such conditions as City may reasonably approve. Developer
shall pay when due, in part with Measure H Funding, all customary and reasonable fees and
charges in connection with the processing of all applicable permits and approvals. Developer
shall not commence construction work on the Project prior to issuance of building permits
required for such work.
4.4 Conditions of Approval. Developer shall develop the Property in accordance
with the terms and conditions of this Agreement and in compliance with the terms and conditions
of all approvals, entitlements and permits that the City or any other governmental body or agency
with jurisdiction over the Project or the Property has granted or issued as of the date hereof or
may hereafter grant or issue in connection with development of the Project, including without
limitation, all mitigation measures imposed in connection with environmental review of the
Project and all conditions of approval imposed in connection with any entitlements, approvals or
permits (all of the foregoing approvals, entitlements, permits, mitigation measures and conditions
of approval are hereafter collectively referred to as the "Conditions of Approval').
4.5 Fees. Developer shall be solely responsible for, and shall promptly pay when due,
all customary and usual fees and charges of City and all other agencies with jurisdiction over
development of the Property in connection with obtaining building permits and other approvals
for the Project, including without limitation, those related to the processing and consideration of
amendments, if any, to the current entitlements, any related approvals and permits,
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environmental review, architectural review, historic review, and any subsequent approvals for
the Project.
4.6 Intentionally omitted.
4.7 Equal Opportunity. There shall be no discrimination on the basis of race, color,
religion, creed, sex, sexual orientation, marital status, ancestry or national origin in the hiring,
firing, promoting or demoting of any person engaged in construction work on the Property, and
Developer shall direct its contractors and subcontractors to refrain from discrimination on such
basis.
4.8 Compliance with Laws. Developer shall carry out and shall cause its contractors
and subcontractors to carry out the construction of the Project in conformity with all applicable
federal, state and local laws, rules, ordinances and regulations ("Applicable Laws"), including
without limitation, all applicable Environmental Laws, all applicable federal and state labor laws
and standards, Section 3 of the Housing and Community Development Act of 1974, as amended
(if applicable pursuant to financing sources used for the Project), applicable provisions of the
California Public Contracts Code, the City's zoning and development standards, building,
plumbing, mechanical and electrical codes, all other provisions of the City's 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 Section 51, et seq.. Developer shall indemnify, defend (with counsel approved by City) and
hold harmless the City and its elected and appointed officers, officials, employees, agents,
consultants and contractors (all of the foregoing, collectively, the "Indemnitees") from and
against any and all Claims arising in connection with the breach of Developer's obligations set
forth in this Section whether or not any insurance policies shall have been determined to be
applicable to any such Claims. It is further agreed that City does not and shall not waive any
rights against Developer which it may have by reason of this indemnity and hold harmless
agreement because of the acceptance by City, or Developer's deposit with City of any of the
insurance policies described in this Agreement. Developer's indemnification obligations set
forth in this Section shall not apply to Claims to the extent arising from the gross negligence or
willful misconduct of the Indemnitees. Developer's defense and indemnification obligations set
forth in this Section 4.8 shall survive the expiration or earlier termination of this Agreement.
4.9 Liens and Stop Notices. Until the expiration of the term of the Regulatory
Agreement, Developer shall not allow to be placed on the Property or any part thereof any lien or
stop notice on account of materials supplied to or labor performed on behalf of Developer. If a
claim of a lien or stop notice is given or recorded affecting the Project or the Property or any part
thereof, Developer shall within twenty (20) days of such recording or service: (a) pay and
discharge (or cause to be paid and discharged) the same; or (b) effect the release thereof by
recording and delivering (or causing to be recorded and delivered) to the parry entitled thereto a
surety bond in sufficient form and amount; or (c) provide other assurance satisfactory to City that
the claim of lien or stop notice will be paid or discharged.
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4.10 Right of City to Satisfy Liens on the Property. If Developer fails to satisfy or
discharge any lien or stop notice on the Property or any part thereof pursuant to and within the
time period set forth in Section 4.9 above, the City shall have the right upon delivery of five (5)
days' written notice to Developer, but not the obligation, to satisfy any such liens or stop notices
at Developer's expense. In such event Developer shall be liable for and shall immediately
reimburse City for such paid lien or stop notice. Alternatively, the City may require Developer
to immediately deposit with City the amount necessary to satisfy such lien or claim pending
resolution thereof. The City may use such deposit to satisfy any claim or lien that is adversely
determined against Developer. Developer shall file a valid notice of cessation or notice of
completion upon cessation of construction work on the Property for a continuous period of thirty
(30) days or more, and shall take all other reasonable steps to forestall the assertion of claims or
liens against the Property. The City may (but has no obligation to) record any notices of
completion or cessation of labor, or any other notice that the City deems necessary or desirable
to protect its interest in the Property.
4.11 Performance and Payment Bonds. Prior to commencement of construction work
on the Project, Developer shall cause its general contractor to deliver to the City copies of
payment bond(s) and performance bond(s) issued by a reputable insurance company licensed to
do business in California, each in a penal sum of not less than one hundred percent (100%) of the
scheduled cost of construction of such Project component. The bonds shall name the City as co -
obligee.
4.12 Insurance Requirements. Developer shall maintain and shall cause its contractors
to maintain all applicable insurance coverage specified in Article X.
4.13 Affordable Housing. Developer covenants and agrees for itself, its successors
and assigns that the Property will be subject to recorded covenants that will restrict use of the
Property to operation of a transitional housing and affordable residential development in
perpetuity, commencing upon the issuance of the final certificate of occupancy, for the Project
all of the residential units in the Project shall be occupied or available for occupancy for
transitional housing or at Affordable Rents to households whose income is no greater than eighty
percent (80%) of Area Median Income; provided however, Developer shall comply with the rent
and occupancy restrictions imposed by all applicable financing sources and regulatory agencies
if such agencies impose requirements on the Project that are more stringent than those set forth in
this Agreement.
4.14 Maintenance. Commencing upon Developer's acquisition of the Property,
Developer shall at its own expense, maintain the Property and the Improvements, including the
landscaping and common areas, in good physical condition, in good repair, and in decent, safe,
sanitary, habitable and tenantable living conditions in conformity with all Applicable Laws.
Without limiting the foregoing, Developer agrees to maintain the Property and the Improvements
(including without limitation, landscaping, driveways, parking areas, and walkways) in a
condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair,
abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent
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the same from occurring on the Property. Developer shall prevent and/or rectify any physical
deterioration of the Improvements and shall make all repairs, renewals and replacements
necessary to keep the Property and the Improvements in good condition and repair.
4.15 Taxes and Assessments. Commencing upon Developer's acquisition of the
Property, Developer shall pay all real and personal property taxes, assessments and charges and
all franchise, income, payroll, withholding, sales, and other taxes assessed against the Property
and/or the Improvements, at such times and in such manner as to prevent any penalty from
accruing, or any lien or charge from attaching to the Property or Improvements; provided,
however, Developer shall have the right to contest in good faith, any such taxes, assessments, or
charges. In the event the Developer exercises its right to contest any tax, assessment, or charge,
the Developer, on final determination of the proceeding or contest, shall immediately pay or
discharge any decision or judgment rendered against it, together with all costs, charges and
interest.
4.16 Obligation to Refrain from Discrimination. Developer shall not restrict the rental.
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or the Project,
or any portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation,
disability, marital status, ancestry, or national origin of any person. Developer covenants for
itself and all persons claiming under or through it, and this Agreement is made and accepted
upon and subject to the condition that there shall be no discrimination against or segregation of
any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of
the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the Property or the Improvements, or part thereof, nor shall Developer or any person claiming
under or through Developer 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, of, or for the Property or Improvements, or part
thereof. Developer shall include such provision in all deeds, leases, contracts and other
instruments executed by Developer, and shall enforce the same diligently and in good faith.
All deeds, leases or contracts made or entered into by Developer, its successors or
assigns, as to any portion of the Property or the Improvements shall contain the following
language:
(a) In Deeds, the following language shall appear:
"(1) Grantee herein covenants by and for itself, its successors and assigns, and all
persons claiming under or through it, that there shall be no discrimination against
or segregation of a person or of a group of persons on account of any basis listed
in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
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property herein conveyed nor shall the grantee or any person claiming under or
through the grantee 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
property herein conveyed. The foregoing covenant shall run with the land.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
5 1. 11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1)."
(b) In Leases, the following language shall appear:
"(1) The lessee herein covenants by and for the lessee and lessee's heirs, personal
representatives and assigns, and all persons claiming under the lessee or through
the lessee, that this lease is made subject to the condition that there shall be no
discrimination against or segregation of any person or of a group of persons on
account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin, ancestry or disability in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the property herein leased nor shall the lessee
or any person claiming under or through the lessee establish or permit any such
practice or practices of discrimination of segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the property herein leased.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1)
shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(c) In Contracts pertaining to operation or management of the Project, the following
language shall appear:
"There shall be no discrimination against or segregation of any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the property nor shall the transferee or
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any person claiming under or through the transferee establish or permit any such
practice or practices of discrimination or segregation with reference to selection,
location, number, use or occupancy of tenants, lessee, subtenants, sublessees or
vendees of the land."
ARTICLE V
CONDITION OF THE SITE; ENVIRONMENTAL MATTERS
5.1 Access to Site, Inspections. Prior to the Close of Escrow, Developer and
Developer's authorized representatives may enter upon and conduct reviews and assessments of
the physical and environmental condition of the Property. City may require Developer to
execute a right of entry agreement satisfactory to City prior to entry onto the Property for such
purpose and shall require Developer to provide proof of liability insurance acceptable to City.
Developer's inspection, examination, survey and review of the Property shall be at Developer's
sole expense. Developer shall provide City with copies of all reports and test results promptly
following completion of such reports and testing. Developer hereby agrees to notify the City
twenty-four (24) hours in advance of its intention to enter the Property and will provide
workplans, drawings, and descriptions of any intrusive sampling it intends to do. Developer
must keep the Property in a safe condition during its entry. Developer shall repair, restore and
return the Property to its condition immediately preceding Developer's entry thereon at
Developer's sole expense. Developer will not permit any mechanics liens, stop notices or other
liens or encumbrances to be placed against the Property prior to Close of Escrow. Without
limiting any other indemnity provisions set forth in this Agreement, Developer shall indemnify,
defend (with counsel approved by City) and hold the Indemnitees harmless from and against all
Claims resulting from or arising in connection with entry upon the Property by Developer or
Developer's agents, employees, consultants, contractors or subcontractors pursuant to this
Section 5.1 except to the extent arising from the gross negligence or willful misconduct of the
Indemnitees. Developer's indemnification obligations set forth in this Section 5.1 shall survive
the Close of Escrow and the termination of this Agreement.
5.2 Environmental Disclosure. To the extent the City has copies of investigation
reports concerning the Property, it will provide copies to Developer upon request; but the Parties
acknowledge that City will not be conducting a public records search of any regulatory agency
files —although the City urges Developer to do so to satisfy itself regarding the environmental
condition of the Property. By execution of this Agreement, Developer: (i) acknowledges its
receipt of the foregoing notice respecting the environmental condition of the Property; (ii)
acknowledges that it will have an opportunity to conduct its own independent review and
investigation of the Property prior to the Close of Escrow; (iii) agrees to rely solely on its own
experts in assessing the environmental condition of the Property and its sufficiency for its
intended use; and (iv) waives any and all rights Developer may have to assert that the City failed
to disclose information about the environmental condition of the Property.
5.3 Property Conveyed "AS IS". Developer specifically acknowledges that the City
is conveying to Developer and Developer is accepting from the City the Property on an "AS IS"
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"WHERE IS" and "WITH ALL FAULTS" basis and that Developer is not relying on any
representations or warranties of any kind whatsoever, express or implied, from City, its
employees, board members, agents, or brokers as to any matters concerning the Property. The
City makes no representations or warranties as to any matters concerning the Property, including
without limitation: (i) the quality, nature, adequacy and physical condition of the property,
including, but not limited to, access, and landscaping, (ii) the quality, nature, adequacy, and
physical condition of soils, geology and any groundwater, (iii) the existence, quality, nature,
adequacy and physical condition of utilities serving the Property, (iv) the development potential
of the Property, and the Property's use, habitability, merchantability, or fitness, suitability, value
or adequacy of the Property for any particular purpose, (v) the zoning or other legal status of the
property or any other public or private restrictions on use of the Property, (vi) the compliance of
the Property or its operation with any Environmental Laws, covenants, conditions and
restrictions of any governmental or quasi -governmental entity or of any other person or entity,
(vii) the presence or removal of Hazardous Material, substances or wastes on, under or about the
Property or the adjoining or neighboring property; (viii) the condition of title to the Property, (ix)
the leases, service contracts, or other agreements affecting the Property, or (x) the economics of
the operation of the Property.
5.4 Developer to Rely on Own Experts. Developer understands that notwithstanding
the delivery by City to Developer of any materials, including, without limitation, third parry
reports, Developer will rely entirely on Developer's own experts and consultants and its own
independent investigation in proceeding with the acquisition of the Property.
5.5 Release by Developer. Effective upon the Close of Escrow for the Property,
Developer WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES the
Indemnitees and any person acting on behalf of the City, from any and all Claims, direct or
indirect, known or unknown, foreseen or unforeseen, which Developer now has or which may
arise in the future on account of or in any way arising out of or in connection with the physical
condition of the Property, the presence of Hazardous Material in, on, under or about the
Property, or any law or regulation applicable thereto including, without limiting the generality of
the foregoing, all Environmental Laws.
DEVELOPER ACKNOWLEDGES THAT DEVELOPER IS FAMILIAR WITH SECTION 1542
OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR OR RELEASING PARTYDOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.
BY INITIALING BELOW, DEVELOPER EXPRESSLY WAIVES THE BENEFITS OF
SECTION 1542 OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE
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FOREGOING RELEASE.
that:
Developer's initials:
5.6 Developer's Post -Closing Obligations. _ Devel_ Developer hereby covenants and agrees
(1) Developer shall not cause or permit the Property or any portion thereof to
be a site for the use, generation, treatment, manufacture, storage, disposal or
transportation of Hazardous Material or otherwise cause or permit the presence or release
of Hazardous Material in, on, under, about or from the Property, with the exception of
limited amounts of cleaning supplies and other materials customarily used in
construction, use or maintenance of residential properties similar in nature to the Project,
and used, stored and disposed of in compliance with Environmental Laws.
(2) Developer shall keep and maintain the Property and each portion thereof
in compliance with, and shall not cause or permit the Project or the Property or any
portion of either to be in violation of, any Environmental Laws.
(3) Upon receiving actual knowledge of the same, Developer shall
immediately advise City in writing of: (i) any and all enforcement, cleanup, removal or
other governmental or regulatory actions instituted, completed or threatened against the
Developer, or the Property pursuant to any applicable Environmental Laws; (ii) any and
all claims made or threatened by any third party against the Developer or the Property
relating to damage, contribution, cost recovery, compensation, loss or injury resulting
from any Hazardous Material; (iii) the presence or release of any Hazardous Material in,
on, under, about or from the Property; or (iv) Developer's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Project classified as
"Border Zone Property" under the provisions of California Health and Safety Code,
Sections 25220 et seq., or any regulation adopted in connection therewith, that may in
any way affect the Property pursuant to any Environmental Laws or cause it or any part
thereof to be designated as Border Zone Property. The matters set forth in the foregoing
clauses (i) through (iv) are hereinafter referred to as "Hazardous Materials Claims").
The City shall have the right to join and participate in, as a party if it so elects, any legal
proceedings or actions initiated in connection with any Hazardous Materials Claim.
(4) Without the City's prior written consent, which shall not be unreasonably
withheld or delayed, Developer shall not take any remedial action in response to the
presence of any Hazardous Material in, on, under, or about the Property (other than in
emergency situations or as required by governmental agencies having jurisdiction in
which case the City agrees to provide its consent), nor enter into any settlement
agreement, consent decree, or other compromise in respect to any Hazardous Materials
Claim. City shall have the right to join and participate in, as a party if it so elects, any
legal proceedings or actions initiated in connection with any Hazardous Materials Claims
and to have its reasonable attorneys' fees in connection therewith paid by Developer.
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5.7 Environmental Indemnity. To the greatest extent allowed by law, Developer shall
indemnify, defend (with counsel approved by City) and hold Indemnitees harmless from and
against all Claims resulting, arising, or based directly or indirectly in whole or in part, upon (i)
the presence, release, use, generation, discharge, storage or disposal of any Hazardous Material
on, under, in or about the Property, or the transportation of any such Hazardous Material to or
from, the Property, or (ii) the failure of Developer, Developer's employees, agents, contractors,
subcontractors, or any person acting on behalf of or as the invitee of any of the foregoing to
comply with Environmental Laws, except to the extent caused by the City's gross negligence or
willful misconduct. The foregoing indemnity shall further apply to any residual contamination
in, on, under or about the Property or affecting any natural resources, and to any contamination
of any property or natural resources arising in connection with the generation, use, handling,
treatment, storage, transport or disposal of any such Hazardous Material, and irrespective of
whether any of such activities were or will be undertaken in accordance with Environmental
Laws.
Developer's obligation to indemnify the Indemnitees shall not be limited or impaired by
any of the following: (i) any amendment or modification of any City Document; (ii) any
extensions of time for performance required by any City Document; (iii) the accuracy or
inaccuracy of any representation and warranty made by Developer under this Agreement or by
Developer or any other party under any City Document, and (iv) the release of Developer or any
other person, by City or by operation of law, from performance of any obligation under any City
Document.
The provisions of this Section 5.7 shall be in addition to any and all other obligations and
liabilities that Developer may have under applicable law, and each Indemnitee shall be entitled to
indemnification under this Section without regard to whether City or that Indemnitee has
exercised any rights against the Property or any other security, pursued any rights against any
party, or pursued any other rights available under the City Documents or applicable law. The
obligations of Developer to indemnify the Indemnitees under this Section shall survive the
expiration or earlier termination of this Agreement.
5.8 Definitions.
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5.8.1 "Hazardous Material' means any chemical, compound, material, mixture, or substance
that is now or may in the future be defined or listed in, or otherwise classified pursuant to any
Environmental Laws (defined below) as a "hazardous substance", "hazardous material',
"hazardous waste", "extremely hazardous waste", infectious waste", toxic substance", toxic
pollutant", or any other formulation intended to define, list or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, or toxicity.
The term "hazardous material' shall also include asbestos or asbestos -containing materials,
radon, chrome and/or chromium, polychlorinated biphenyls, petroleum, petroleum products or
by-products, petroleum components, oil, mineral spirits, natural gas, natural gas liquids, liquefied
natural gas, or synthetic gas usable as fuel, perchlorate, and methy tert butyl ether, whether or not
defined as a hazardous waste or hazardous substance in the Environmental Laws.
5.8.2 "Environmental Laws" means any and all federal, state and local statutes,
ordinances, orders, rules, regulations, guidance documents, judgments, governmental
authorizations or directives, or any other requirements of governmental authorities, as may
presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the
presence, release, generation, use, handling, treatment, storage, transportation or disposal of
Hazardous Material, or the protection of the environment or human, plant or animal health,
including, without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33
U.S.C. § 2701 et seq.), the Emergency Planning and Community Right -to -Know Act (42 U.S.C.
§ 11001 et seq.), the Porter -Cologne Water Quality Control Act (Cal. Water Code § 13000 et
seq.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe
Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et
seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seq.), the
Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code
§ 25500 et seq.), and the Carpenter -Presley -Tanner Hazardous Substances Account Act (Cal.
Health and Safety Code, Section 25300 et seq.).
ARTICLE VI
LIMITATIONS ON CHANGE IN OWNERSHIP, MANAGEMENT
AND CONTROL OF DEVELOPER
6.1 Identity of Developer; Changes Only Pursuant to this Agreement. Developer and
its principals have represented that they possess the necessary expertise, skill and ability to carry
out the development of the Project pursuant to this Agreement. The qualifications, experience,
financial capacity and expertise of Developer and its principals are of particular concern to the
City. It is because of these qualifications, experience, financial capacity and expertise that the
City has entered into this Agreement with Developer. No voluntary or involuntary successor,
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assignee or transferee of Developer shall acquire any rights or powers under this Agreement,
except as expressly provided herein.
6.2 Prohibition on Transfer. Prior to the expiration of the term of the Regulatory
Agreement, Developer shall not, except as expressly permitted by this Agreement, directly or
indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial
sale, transfer, conveyance, assignment or lease (collectively, "Transfer") of the whole or any
part of the Property, the Project, the Improvements, or this Agreement, without the prior written
approval of City which approval shall not be unreasonably withheld. Any such attempt to assign
this Agreement without the City's consent shall be null and void and shall confer no rights or
privileges upon the purported assignee. In addition to the foregoing, prior to the expiration of the
term of the Regulatory Agreement, except as expressly permitted by this Agreement, Developer
shall not undergo any significant change of ownership without the prior written approval of City.
For purposes of this Agreement, a "significant change of ownership" shall mean a transfer of the
beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership
and /or control of Developer, taking all transfers into account on a cumulative basis; provided
however, neither the admission of an investor limited partner, nor the transfer by the investor
limited partner to subsequent limited partners shall be restricted by this provision.
6.3 Requirements for Proposed Transfers. The City may, in the exercise of its sole
discretion, consent to a proposed Transfer of this Agreement, the Property, the Improvements or
part thereof that will be effective concurrently with or after the Close of Escrow, if all of the
following requirements are met:
(i) The proposed transferee demonstrates to the City's satisfaction that it has
the qualifications, experience and financial resources necessary and adequate as may be
reasonably determined by the City to competently complete and manage the Project and to
otherwise fulfill the obligations undertaken by the Developer under this Agreement.
(ii) The Developer and the proposed transferee shall submit for City review
and approval all instruments and other legal documents proposed to effect any Transfer of all or
any part of or interest in the Property, the Improvements or this Agreement together with such
documentation of the proposed transferee's qualifications and development capacity as the City
may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and
obligations of the Developer under this Agreement and the other City Documents arising after
the effective date of the Transfer and all obligations of Developer arising prior to the effective
date of the Transfer (unless Developer expressly remains responsible for such obligations), and
shall agree to be subject to, and assume all of, Developer's obligations pursuant to the
Conditions of Approval and all other conditions, and restrictions set forth in this Agreement and
the other City Documents. The assumption of such obligations shall be documented in an
assignment and assumption agreement in form approved by City and that will be effective
concurrently with or after the Close of Escrow.
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(iv) The Transfer shall be effectuated pursuant to a written instrument
satisfactory to the City in form recordable in the Official Records.
Consent to any proposed Transfer may be given by the City's Authorized
Representative unless the Authorized Representative, in his or her discretion, refers the matter of
approval to the City Council_ If the City has not rejected a proposed Transfer or requested
additional information regarding a proposed Transfer in writing within thirty (30) days following
City's receipt of written request by Developer, the proposed Transfer shall be deemed approved.
6.4 Effect of Transfer without City Consent.
6.4.1 In the absence of specific written agreement by the City, no Transfer by
Developer shall be deemed to relieve the Developer or any other parry from any obligation under
this Agreement.
6.4.2 It shall be an Event of Developer Default hereunder entitling City to
pursue remedies including without limitation, termination of this Agreement if without the prior
written approval of the City, Developer assigns or Transfers this Agreement, the Improvements,
or the Property, or any part thereof in violation of Article VI.
6.5 Recovery of City Costs. Within ten (10) days following City's delivery to
Developer of an invoice detailing such costs, Developer shall reimburse City for all reasonable
City costs, including but not limited to reasonable attorneys' fees, incurred in reviewing
instruments and other legal documents proposed to effect a Transfer of this Agreement, the
Property or the Improvements, or part thereof, and in reviewing the qualifications and financial
resources of a proposed successor, assignee, or transferee.
ARTICLE VII
SECURITY FINANCING AND RIGHTS OF MORTGAGEES
7.1 Mortgages and Deeds of Trust for Development. Mortgages and deeds of trust, or
any other reasonable security instrument are permitted to be placed upon the Property or the
Improvements only for the purpose of securing loans for the purpose of financing the acquisition
of the Property, the design and construction of the Improvements, and other expenditures
reasonably necessary for the development of the Project pursuant to this Agreement. Developer
shall not enter into any conveyance for such financing that is not contemplated in the applicable
Financing Plan as it may be updated with City approval, without the prior written approval of the
Authorized Representative or his or her designee. As used herein, the terms "mortgage" and
"deed of trust" shall mean any security instrument used in financing real estate acquisition,
construction and land development.
7.2 Subordination. The City agrees that City will not withhold consent to reasonable
requests for subordination of the Regulatory Agreement to deeds of trust provided for the benefit
of lenders providing construction and/or permanent financing for the Project consistent with the
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approved Financing Plan as it may be updated with City approval, provided that the instruments
effecting such subordination include reasonable protections to the City in the event of default,
including without limitation, extended notice and cure rights. Developer agrees to use best
efforts to cause requested subordination agreements to include the rights set forth in Section 8.6
below.
7.3 Holder Not Obligated to Construct. The holder of any mortgage or deed of trust
authorized by this Agreement shall not be obligated to complete construction of the Project or to
guarantee such completion. Nothing in this Agreement shall be deemed to permit or authorize
any such holder to devote the Property or any portion thereof to any uses, or to construct any
improvements thereon, other than those uses or improvements provided for or authorized by this
Agreement.
7.4 Notice of Default and Lender Right to Cure. Whenever City delivers any notice
of default hereunder, City shall concurrently deliver a copy of such notice to each holder of
record of any mortgage or deed of trust secured by the Property or the Improvements, provided
that City has been provided with the address for delivery of such notice. City shall have no
liability to any such holder for any failure by the City to provide such notice to such holder.
Each such holder shall have the right, but not the obligation, at its option, to cure or remedy any
such default or breach within the cure period provided to Developer. In the event that possession
of the Property or the Improvements (or any portion thereof) is required to effectuate such cure
or remedy, the holder shall be deemed to have timely cured or remedied the default if it
commences the proceedings necessary to obtain possession of the Property or Improvements, as
applicable, within the applicable cure period, diligently pursues such proceedings to completion,
and after obtaining possession, diligently completes such cure or remedy. A holder who chooses
to exercise its right to cure or remedy a default or breach shall first notify City of its intent to
exercise such right prior to commencing to cure or remedy such default or breach. Nothing
contained in this Agreement shall be deemed to permit or authorize such holder to undertake or
continue the construction of the Project (beyond the extent necessary to conserve or protect the
same) without first having expressly assumed in writing Developer's obligations to City under
this Agreement. The holder in that event must agree to complete, in the manner provided in this
Agreement, the Project and the Improvements and submit evidence reasonably satisfactory to
City that it has the development capability on staff or retainer and the financial capacity
necessary to perform such obligations. Any such holder properly completing the Project
pursuant to this Section shall assume all rights and obligations of Developer under this
Agreement.
7.5 Failure of Holder to Complete Improvements. In any case where, six (6) months
after default by Developer in completion of construction of the Project, the holder of record of
any mortgage or deed of trust has not exercised its option to construct the Project, or having first
exercised such option, has not proceeded diligently with such work, City shall be afforded those
rights against such holder that it would otherwise have against Developer under this Agreement.
7.6 City Right to Cure Defaults. In the event of a breach or default by Developer
under a mortgage or deed of trust secured by the Property or the Improvements, City may cure
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the default, without acceleration of the subject loan, following prior notice thereof to the holder
of such instrument and Developer. In such event, Developer shall be liable for, and City shall be
entitled to reimbursement from Developer for all costs and expenses incurred by City associated
with and attributable to the curing of the default or breach.
7.7 Holder to be Notified. Developer agrees to use best efforts to ensure that each
term contained herein dealing with security financing and rights of holders shall be either
inserted into the relevant deed of trust or mortgage or acknowledged and accepted in writing by
the holder prior to its creating any security right or interest in the Property or the Improvements.
7.8 Modifications to Agreement. City shall not unreasonably withhold its consent to
modifications of this Agreement requested by Project lenders or investors provided such
modifications do not alter City's substantive rights and obligations under this Agreement.
7.9 Estoppel Certificates. Either Party shall, at any time, and from time to time,
within fifteen (15) days after receipt of written request from the other Party, execute and deliver
to such Party a written statement certifying that, to the knowledge of the certifying Party: (i) this
Agreement is in full force and effect and a binding obligation of the Parties (if such be the case),
(ii) this Agreement has not been amended or modified, or if so amended, identifying the
amendments, and (iii) the requesting Party is not in default in the performance of its obligations
under this Agreement, or if in default, describing the nature of any such defaults.
ARTICLE VIII
DEFAULTS, REMEDIES AND TERMINATION
8.1 Event of Developer Default. The following events shall constitute an event of
default on the part of Developer hereunder ("Event of Developer Default"):
(a) Developer fails to commence or complete construction of the Project
within the time period set forth in Section 4.1, or subject to Force Majeure, abandons or suspends
construction of the Project prior to completion for a period of sixty (60) days or more;
(b) Developer ceases for more than 90 days operation (i) of the Project as a
transitional or affordable housing project, subject to affordability and occupancy restrictions in
accordance with the Regulatory Agreement; and/or (ii) of program services in support of
transitional and affordable housing;
(c) A Transfer occurs, either voluntarily or involuntarily, in violation of
Article VI;
(d) Developer fails to maintain insurance as required pursuant to this
Agreement, and Developer fails to cure such default within five (5) days;
(e) Developer fails to pay prior to delinquency taxes or assessments due on
the Property or fails to pay when due any other charge that may result in a lien on the Property,
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and Developer fails to cure such default within twenty (20) days of the date of delinquency, but
in all events prior to the date upon which the holder of any such lien has the right to foreclose
thereon;
(f) A default arises under any loan secured by a mortgage, deed of trust or
other security instrument recorded against the Property and remains uncured beyond any
applicable cure period such that the holder of such security instrument has the right to accelerate
repayment of such loan;
(g) Any representation or warranty contained in this Agreement or in any
application, financial statement, certificate or report submitted to the City in connection with this
Agreement proves to have been incorrect in any material and adverse respect when made and
continues to be materially adverse to the City;
(h) If, pursuant to or within the meaning of the United States Bankruptcy
Code or any other federal or state law relating to insolvency or relief of debtors ("Bankruptcy
Law"), Developer or any general partner of an Approved Partnership that has acquired the
Property or part thereof: (i) commences a voluntary case or proceeding; (ii) consents to the entry
of an order for relief against Developer or any general partner of such Approved Partnership in
an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator
or similar official for Developer or any general partner of such Approved Partnership ; (iv)
makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its
debts as they become due;
(i) A court of competent jurisdiction shall have made or entered any decree or
order (1) adjudging the Developer to be bankrupt or insolvent, (2) approving as properly filed a
petition seeking reorganization of the Developer or seeking any arrangement for Developer
under bankruptcy law or any other applicable debtor's relief law or statute of the United States
or any state or other jurisdiction, (3) appointing a receiver, trustee, liquidator, or assignee of the
Developer in bankruptcy or insolvency or for any of its properties, or (4) directing the winding
up or liquidation of the Developer, in each case if such decree, order, petition, or appointment is
not removed or rescinded within sixty (60) days;
0) Developer shall have assigned its assets for the benefit of its creditors
(other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution
on any substantial part of its property, unless the property so assigned, sequestered, attached or
executed upon shall have been returned or released within sixty (60) days after such event
(unless a lesser time period is permitted for cure pursuant to paragraphs (h) or (i) above or
pursuant to any other mortgage on the Property, in which event such lesser time period shall
apply under this subsection as well) or prior to any sooner sale pursuant to such sequestration,
attachment, or execution;
(k) The Developer shall have voluntarily suspended its business or Developer
shall have been dissolved or terminated;
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(1) An event of default arises under any City Document and remains uncured
beyond any applicable cure period; or
(m) Developer defaults in the performance of any term, provision, covenant or
agreement contained in this Agreement other than an obligation enumerated in this Section 8.1
and unless a shorter cure period is specified for such default, the default continues for thirty (30)
days after the date upon which City shall have given written notice of the default to Developer;
provided however, if the default is of a nature that it cannot be cured within thirty (30) days, an
Event of Developer Default shall not arise hereunder if Developer commences to cure the default
within thirty (30) days and thereafter prosecutes the curing of such default with due diligence
and in good faith to completion.
8.2 City Default. An event of default on the part of City ("Event of City Default")
shall arise hereunder if City fails to keep, observe, or perform any of its covenants, duties, or
obligations under this Agreement, and the default continues for a period of sixty (60) days after
written notice thereof from Developer to City, or in the case of a default which cannot with due
diligence be cured within sixty (60) days, City fails to commence to cure the default within sixty
(60) days of such notice and thereafter fails to prosecute the curing of such default with due
diligence and in good faith to completion.
8.3 City's Right to Terminate Agreement. If an Event of Developer Default shall
occur and be continuing beyond any applicable cure period, then City shall, in addition to other
rights available to it under law or this Agreement, have the right to terminate this Agreement. If
City makes such election, City shall give written notice to Developer and to any mortgagee
entitled to such notice specifying the nature of the default and stating that this Agreement shall
expire and terminate on the date specified in such notice, and upon the date specified in the
notice, this Agreement and all rights of Developer under this Agreement, shall expire and
terminate.
8.4 City's Remedies and Rights Upon an Event of Developer Default. Upon the
occurrence of an Event of Developer Default and the expiration of any applicable cure period,
City shall have all remedies available to it under this Agreement or under law or equity,
including, but not limited to the following, and City may, at its election, without notice to or
demand upon Developer, except for notices or demands required by law or expressly required
pursuant to the City Documents, exercise one or more of the following remedies:
(a) Seek specific performance to enforce the terms of the City Documents;
(b) Exercise its rights under the Assignment Agreement;
(c) Terminate this Agreement pursuant to Section 8.3; and
(d) Pursue any and all other remedies available under this Agreement or under
law or equity to enforce the terms of the City Documents and City's rights thereunder.
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8.5 Developer's Remedies Upon an Event of City Default. Upon the occurrence of an
Event of City Default, in addition to pursuing any other remedy provided in this Agreement,
Developer may bring an action for equitable relief seeking the specific performance of the terms
and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such
terms and conditions.
8.6 Remedies Cumulative. Except as otherwise expressly stated in this Agreement,
the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or
more of such rights or remedies shall not preclude the exercise by it, at the same or different
time, of any other rights or remedies for the same or any other default by the other Party.
8.7 Inaction Not a Waiver of Default. No failure or delay by either Party in asserting
any of its rights and remedies as to any default shall operate as a waiver of such default or of any
such rights or remedies, nor deprive either Party of its rights to institute and maintain any action
or proceeding which it may deem necessary to protect, assert or enforce any such rights or
remedies in the same or any subsequent default.
8.8 Power of Termination. If following conveyance of the Property to Developer,
Developer (i) fails to obtain all necessary entitlements, approvals and permits for the Project; (ii)
fails to begin construction of the Project within the time specified in Section 4.1 as such date
may be extended pursuant to the terms hereof, (iii) abandons or suspends construction work for a
period of sixty (60) days after written notice from City, (iv) fails to complete construction of the
Project by the time specified in Section 4.1 as such date may be extended pursuant to the terms
hereof, (v) ceases for more than 90 days operation (a) of the Project as a transitional or
affordable housing project, subject to affordability and occupancy restrictions in accordance with
the Regulatory Agreement; and/or (b) of program services in support of transitional and
affordable housing; or (v) directly or indirectly, voluntarily or involuntarily Transfers the
Property or part thereof or this Agreement in violation of Article VI, the City may re-enter and
take possession of the Property or any portion thereof with all improvements thereon without
payment or compensation to Developer, and revest in the City the estate theretofore conveyed to
the Developer. The interest created pursuant to this Section 8.8 shall be a "power of termination"
as defined in California Civil Code Section 885.010, and shall be separate and distinct from the
City's option to purchase the Property under the same or similar conditions specified in Section
8_9. City's rights pursuant to this Section 8.8 shall not defeat, render invalid or limit any
mortgage or deed of trust permitted by this Agreement or any rights or interests provided in this
Agreement for the protection of the holders of such mortgages or deeds of trust.
Upon reverting in the City of title to the Property or any portion thereof as provided in
this Section 8.8, the City shall use its best efforts to resell the Property or applicable portion
thereof and as soon as possible, in a commercially reasonable manner to a qualified and
responsible parry or parties (as determined by the City) who will assume the obligation of
completing and operating the Project in accordance with the uses specified for such property in
this Agreement and in a manner satisfactory to the City. Upon such resale of the Property or any
portion thereof, the sale proceeds shall be applied as follows:
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(a) First, to reimburse the City for all costs and expenses incurred by City, including
but not limited to salaries of personnel and legal fees incurred in connection with the recapture
and resale of the Property; all taxes and assessments payable prior to resale, and all applicable
water and sewer charges; any payments necessary to discharge any encumbrances or liens on
the Property at the time of reverting of title thereto in the City or to discharge or prevent from
attaching any subsequent encumbrances or liens due to obligations, defaults, or acts of the
Developer, its successors or transferees; any expenditures made or obligations incurred with
respect to the completion of the Project or any part thereof on the Property; and any other
amounts owed to the City by Developer and its successors or transferee pursuant to the City
Documents or otherwise.
(b) Second, to reimburse the City for damages to which it is entitled under this
Agreement by reason of the Developer's default.
(c) Third, to reimburse the Developer, its successor or transferee, up to the amount
equal to:
(1) The fair market value of any new improvements constructed by Developer
and existing on the Property at the time of City's exercise of its rights under this Section; less
(2) the amount of the Measure H Funding; and less
(3) Any gains or income withdrawn or made by the Developer from the
Property or applicable portion thereof or the improvements thereon.
Notwithstanding the foregoing, the amount calculated pursuant to this subsection (c) shall
not exceed the fair market value of the Improvements thereon as of the date of the default or
failure which gave rise to the City's exercise of the power of termination.
(3) Any balance remaining after such reimbursements shall be retained by the
City.
The rights established in this Section 8.8 are to be interpreted in light of the fact that the
City will convey the Property to the Developer for completion of the Project as specified herein
and not for speculation.
8.9 Option to Purchase, Enter and Possess Upon Default. The City shall have the
additional right at its option to purchase, enter and take possession of the Property with all
improvements thereon (the "Repurchase Option"), if after conveyance of the Property,
Developer (i) fails to obtain all necessary entitlements, approvals and permits for the Project; (ii)
fails to begin construction of the Project within the time specified in Section 4.1 as such date
may be extended pursuant to the terms hereof, (iii) abandons or suspends construction of the
Project for a period of sixty (60) days after written notice from City, (iv) fails to complete
construction of the Project by the time specified in Section 4.1 as such date may be extended
pursuant to the terms hereof, (v) ceases for more than days operation (a) of the Project as a
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transitional or affordable housing project, subject to affordability and occupancy restrictions in
accordance with the Regulatory Agreement; and/or (b) of program services in support of
transitional and affordable housing or (vi) directly or indirectly, voluntarily or involuntarily
Transfers the Property or part thereof or this Agreement in violation of Article VI. If it exercises
Repurchase Option, the City shall pay to the Developer cash in an amount equal to:
(i) The fair market value of any new Improvements constructed on the Property by
Developer and existing on the Property at the time of exercise of the Option; less
(ii) Any gains or income withdrawn or made by the Developer from the applicable
portion of the Property or the improvements thereon; less
(iii) The amount of the Measure H Funding; and less
(iv) The value of any liens or encumbrances on the applicable portion of the Property
which the City assumes or takes subject to; less
(v) Any amounts owed to the City by Developer and its successors or transferee
pursuant to the City Documents or otherwise; less
(vi) All taxes, assessments and utility charges payable with respect to the Property for
the period prior to the date the City acquires title to the Property; less
(vii) The amount of any payments necessary to discharge or prevent from attaching
any subsequent encumbrances or liens due to obligations, defaults, or acts of the Developer, its
successors or transferees; less
(viii) Any damages to which the City is entitled under this Agreement by reason of
Developer's default.
In order to exercise the Repurchase Option, the City shall give Developer written notice
of such exercise, and Developer shall, within thirty (30) days after receipt of such notice, provide
City with a summary of all of Developer's costs incurred as described in this Section 8.9. Within
thirty (30) days of City's receipt of such summary, City shall pay into an escrow established for
such purpose cash in the amount of all sums owing pursuant to this Section 8.9, and Developer
shall execute and deposit into such escrow a grant deed transferring to City all of Developer's
interest in the Property, or portion thereof, as applicable, and the improvements located thereon.
8.10 City's Rights Pursuant to Sections 8.8 and 8.9. The rights afforded City pursuant
to Sections 8.8 and 8.9 shall be described in the Grant Deed.
8.11 Rights of Mortgagees. Any rights of the City under this Article VIII shall not
defeat, limit or render invalid any mortgage or deed of trust permitted by this Agreement or any
rights provided for in this Agreement for the protection of holders of such instruments. Any
conveyance or return of the Property to the City pursuant to this Article VIII shall be subject to
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mortgages and deeds of trust permitted by this Agreement.
8.12 Assignment. The City shall have the right to assign the Repurchase Option to any
other governmental entity, or a qualified nonprofit corporation.
ARTICLE IX
INDEMNITY AND INSURANCE
9.1 Indemnity. Developer shall indemnify, defend (with counsel approved by City)
and hold the Indemnitees harmless from and against any and all Claims (including without
limitation, Claims arising from any injury, death, illness, property damage, or loss of property)
arising directly or indirectly, in whole or in part, as a result of or in connection with the
development, construction, improvement, operation, ownership or maintenance of the Project or
the Property, or any part thereof by Developer or Developer's contractors, subcontractors,
agents, employees or any other party acting for or on behalf of Developer, or otherwise arising
out of or in connection with Developer's performance or failure to perform under this
Agreement, including without limitation, Claims arising or alleged to have arisen in connection
with any violation of Applicable Laws in connection with the development, operation or
management of the Project, or relating to approval of the Project or approval of this Agreement.
Developer's indemnification obligations under this Section 9.1 shall not extend to Claims to the
extent arising from the gross negligence or willful misconduct of Indemnitees. The provisions of
this Section 9.1 shall survive the expiration or earlier termination of this Agreement. It is further
agreed that City does not and shall not waive any rights against Developer that it may have by
reason of this indemnity and hold harmless agreement because of the acceptance by City, or the
deposit with City by Developer, of any of the insurance policies described in this Agreement.
9.2 Insurance.
9.2.1 General Requirements. Project construction shall not commence until
Developer shall have obtained all insurance required under this Section, nor shall Developer
allow any contractor or subcontractor to commence work on the Project until all insurance
required of the Developer and/or contractor or subcontractor shall have been so obtained. All
requirements herein provided shall appear either in the body of the insurance policies or as
endorsements, and shall specifically bind the insurance carrier.
Developer shall procure and maintain the following insurance providing coverage against claims
for injuries to persons or damages to property that may arise from or in connection with the
development, construction, management, or operation of the Project by the Developer or the
Developer's agents, representatives, employees and contractors, or subcontractors, including the
following:
(a) Commercial General Liability: The Developer (and until issuance of the final
certificate of occupancy or equivalent for the Project all contractors working on behalf of
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Developer on the Project) shall maintain a commercial general liability policy in an occurrence
policy for protection against all claims arising from injury to person or persons not in the employ
of the Developer and against all claims resulting from damage to any property due to any act or
omission of the Developer, its agents, or employees in the conduct or operation of the work or
the execution of this Agreement. Such insurance shall include products and completed operations
liability, blanket contractual liability, personal injury liability, and broad form property damage
coverage. Coverage shall be at least as broad as Insurance Services Office Commercial General
Liability coverage.
(b) Commercial Automobile Liability: The Developer (and until issuance of the final
certificate of occupancy or equivalent for the Project all contractors working on behalf of
Developer on the Project) shall maintain insurance for protection against all claims arising from
the use of vehicles, owned, hired, non -owned, or any other vehicle in connection with the
development, construction, operation or management of the Project. Such insurance shall cover
the use of automobiles and trucks on and off the site of the Property. Coverage shall be at least as
broad as Insurance Services Office covering Commercial Automobile Liability, any auto, owned,
non -owned and hired auto.
(c) Workers' Compensation Insurance: The Developer (and if the Property has been
transferred to an Approved Partnership, the general partners thereof) shall furnish or cause to be
furnished to City evidence satisfactory to City that Developer (and if the Property has been
transferred to an Approved Partnership, the general partners thereof), and any contractor with
whom Developer (or an Approved Partnership) has contracted for the performance of work on
the Property or otherwise pursuant to this Agreement, shall maintain Workers' Compensation
Insurance as required by the State of California and Employer's Liability Insurance.
(d) Builder's Risk: Upon commencement of construction work and continuing until
issuance of the final certificate of occupancy or equivalent for the Project, Developer and all
contractors working on behalf of Developer shall maintain a policy of builder's all-risk insurance
in an amount not less than the full insurable cost of the Project on a replacement cost basis
naming City as loss payee as its interests may appear.
(e) Professional Liability/Errors and Omissions: Developer shall require the Project
architect, engineer, and general contractor to maintain Professional Liability/Errors and
Omissions insurance with limits not less than Two Million Dollars ($2,000,000) each claim.
Certificates evidencing this coverage must reference both the Developer and the Indemnitees. If
the professional liability/errors and omissions insurance is written on a claims made form: (i)
the retroactive date must be shown and must be before the Effective Date, (ii) insurance must be
maintained and evidence of insurance must be provided for at least three (3) years after
completion of Project construction, and (iii) if coverage is cancelled or non -renewed and not
replaced with another claims made policy form with a retroactive date prior to the Effective
Date, Developer must purchase, or require the provision of, extended period coverage for a
minimum of three (3) years after completion of construction.
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(f) Property: Commencing upon completion of construction of the Project,
Developer shall maintain property insurance covering all risks of loss, for 100% of the
replacement value of the Project with deductible, if any, in an amount acceptable to City, naming
City as loss payee as its interests may appear.
(g) Pollution Legal Liability Insurance: Developer shall require the contractor to
carry pollution liability insurance to provide third -party coverage for bodily injury, property
damage, cleanup, and related defense costs.
9.2.2 Minimum Limits, Adjustments. Insurance shall be maintained with limits
no less than the following:
(a) Commercial General Liability and Property Damage: $2,000,000 per
occurrence and $5,000,000 annual aggregate for bodily injury, personal injury and
property damage; provided however, subcontractors may maintain liability coverage with
limits not less than $1,000,000 per occurrence, $2,000,000 annual aggregate.
(b) Products and Completed Operations: $3,000,000 per
occurrence/aggregate.
(c) Commercial Automobile Liability: $2,000,000 combined single limit.
(d) Employer's Liability:
Bodily Injury by Accident - $1,000,000 each accident.
Bodily Injury by Disease - $1,000,000 policy limit.
Bodily Injury by Disease - $1,000,000 each employee.
(e) Professional Liability/Errors and Omissions: $2,000,000 per occurrence or
claim; provided however, subcontractors may maintain coverage with limits not less than
$1,000,000 per occurrence or claim. If the policy provides coverage on a claims -made
basis, the retroactive date must be shown and must be before the date of the Agreement
or the beginning of the contract work.
(f) Pollution Liability Insurance: Contractors' pollution legal liability with
limits no less than $1,000,000 per occurrence or claim and $2,000,000 policy aggregate.
If the policy provides coverage on a claims -made basis, the retroactive date must be
shown and must be before the date of the Agreement or the beginning of the contract
work.
9.2.3 Deductibles and Self -Insured Retention. Any deductibles or self -insured
retention must be declared to the City. Payment of all deductibles and self -insured retentions
will be the responsibility of Developer. If the City determines that such deductibles or retentions
are unreasonably high, either the insurer shall reduce or eliminate such deductibles or self-
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insurance retentions as respects the Indemnitees or Developer shall procure a bond guaranteeing
payment of losses and related investigations, claims administration and defense.
9.2.4 Additional Requirements. The required general liability and automobile
policies shall contain, or be endorsed to contain, the following provisions:
1) The Indemnitees are to be covered as Additional Insureds as respects: liability
arising out of activities performed by or on behalf of the Developer; products and completed
operations of the Developer; premises owned, occupied or used by the Developer; or
automobiles owned, leased, hired or borrowed by the Developer. The coverage shall contain no
special limitations on the scope of protection afforded to the Indemnitees. Additional insured
endorsements for the general liability coverage shall use Insurance Services Office (ISO) Form
No. CG 20 09 11 85 or CG 20 10 11 85, or equivalent, including (if used together) CG 2010 10
O1 and CG 2037 10 01; but shall not use the following forms: CG 20 10 10 93 or 03 94.
2) All insurance shall be primary insurance as respects the Indemnitees. Any
insurance or self-insurance maintained by the Indemnitees shall be excess of the
Developer's/contractor's insurance and shall not contribute with it.
3) Any failure to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect coverage provided to the Indemnitees.
4) The Developer's insurance shall apply separately to each insured against whom
claim is made or suit is brought except, with respect to the limits of the insurer's liability.
5) Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in
limits except after thirty (30) days' prior written notice by certified mail, return receipt requested,
has been given to the City.
6) If any insurance policy or coverage required hereunder is canceled or reduced,
Developer shall, within five (5) days after receipt of notice of such cancellation or reduction in
coverage, but in no event later than the effective date of cancellation or reduction, file with City
a certificate showing that the required insurance has been reinstated or provided through another
insurance company or companies. Upon failure to so file such certificate, City may, without
further notice and at its option, procure such insurance coverage at Developer's expense, and
Developer shall promptly reimburse City for such expense upon receipt of billing from City.
7) Developer agrees to waive subrogation rights for commercial general liability,
automobile liability and worker's compensation against Indemnitees regardless of the
applicability of any insurance proceeds, and to require all contractors, subcontractors or others
involved in any way with the Services to do likewise. Each insurance policy shall contain a
waiver of subrogation for the benefit of City. If any required insurance is provided under a form
of coverage that includes an annual aggregate limit or provides that claims investigation or legal
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defense costs are included in such annual aggregate limit, such annual aggregate limit shall be
three times the applicable occurrence limits specified above.
8) It shall be a requirement under this Agreement that any available insurance
proceeds broader than or in excess of the specified minimum insurance coverage requirement
and/or limits shall be available to the additional insured. Furthermore, the requirement for
coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement, or
(2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds
available to the named insured; whichever is greater. For all liability insurance required by this
Agreement, Developer (and Developer's contractors, as applicable) shall obtain endorsements
that name the Indemnitees as additional insured in the full amount of all applicable policies,
notwithstanding any lesser minimum limits specified in this Agreement. This Agreement
requires Developer (and Developer's contractors) to obtain and provide for the benefit of the
Indemnitees, additional insured coverage in the same amount of insurance carried by Developer
(or Developer's contractors, as applicable), but in no event less than the minimum amounts
specified in this Agreement. In the event that Developer (or Developer's contractors as
applicable) obtains insurance policies that provide liability coverage in excess of the amounts
specified in this Agreement, the actual limits provided by such policies shall be deemed to be the
amounts required under this Agreement. Without limiting the foregoing, the limits of liability
coverage specified in this Agreement are not intended, nor shall they operate, to limit City's
ability to recover amounts in excess of the minimum amounts specified in this Agreement.
9) The limits of insurance required in this Agreement may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess insurance
shall contain or be endorsed to contain a provision that such coverage shall also apply on a
primary and non-contributory basis for the benefit of the City before the City's own insurance or
self-insurance shall be called upon to protect it as a named insured.
9.2.5 Acceptability of Insurers. Companies writing the insurance required hereunder
shall be licensed to do business in the State of California. Insurance is to be placed with insurers
with a current A.M. Best's rating of no less than A: VII.
9.2.6 Verification of Coverage. Prior to the Effective Date of this Agreement, Developer
shall furnish City with certificates of insurance in form acceptable to City evidencing the
insurance coverage required under paragraphs (a), (b), (c), and (e) of Section 9.2.1 above, duly
executed endorsements evidencing the Indemnitees' status as additional insured, and all other
endorsements and coverage required hereunder pertaining to such coverage. Prior to
commencement of construction work, Developer shall furnish City with certificates of insurance
in form acceptable to City evidencing the insurance coverage required under paragraphs (d) and
(g) of Section 9.2.1 above. Prior to City's issuance of a final certificate of occupancy or
equivalent for the Project, Developer shall furnish City with certificates of insurance in form
acceptable to City evidencing the insurance coverage required under paragraph (f) of Section
9.2.1 above. Developer shall furnish the City with original endorsements effecting coverage
required by this clause. The endorsements are to be signed by a person authorized by that insurer
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to bind coverage on its behalf. All endorsements are to be received and approved by the City
before the Services commence.
9.2.7 Insurance Certificates and Endorsements. Developer shall provide to City all the
necessary insurance documents, including the applicable amendatory endorsements (or copies of
the applicable policy language effecting coverage required by this clause) and a copy of the
Declarations and Endorsement Page of required Developer policies listing all required policy
endorsements. Insurance Certificates and Endorsements are to be received and approved by the
City within the time periods specified in Section 9.2.6 above. Should Developer cease to have
insurance as required at any time, all work by Developer pursuant to this Agreement shall cease
until insurance acceptable to the City is provided. Upon City's request, Developer shall, within
thirty (30) days of the request, provide or arrange for the insurer to provide to City, complete
certified copies of all insurance policies required under this Agreement. City's failure to make
such request shall not constitute a waiver of the right to require delivery of the policies in the
future.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 No Brokers. Each Party warrants and represents to the other that no person or
entity can properly claim a right to a real estate commission, brokerage fee, finder's fee, or other
compensation with respect to the transactions contemplated by this Agreement. Each Party
agrees to defend, indemnify and hold harmless the other Party from any claims, expenses, costs
or liabilities arising in connection with a breach of this warranty and representation. The terms
of this Section shall survive the close of escrow and the expiration or earlier termination of this
Agreement.
10.2 Enforced Delay, Extension of Times of Performance. The time for performance
of provisions of this Agreement by either Party shall be extended for a period equal to the period
of any delay directly affecting the Project or this Agreement which is caused by war,
insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of a
public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, suits
filed by unrelated third parties concerning or arising out of this Agreement or unseasonable
weather conditions ("Force Majeure"). An extension of time for any of the above -specified
causes will be deemed granted only if written notice by the Party claiming such extension is sent
to the other Party within ten (10) calendar days from the commencement of the cause. City and
Developer acknowledge that adverse changes in economic conditions, either of the affected
Parry specifically or the economy generally, changes in market conditions or demand, and/or
inability to obtain financing to complete the Project shall not constitute grounds of enforced
delay pursuant to this Section. Each Party expressly assumes the risk of such adverse economic
or market changes and/or financial inability, whether or not foreseeable as of the Effective Date.
Times of performance under this Agreement may also be extended in writing by the
mutual agreement of Developer and City (acting in the reasonable discretion of the Authorized
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Representative unless he or she determines in his or her discretion to refer such matter to the
City Council). If Developer requires additional time despite its diligent efforts to meet the
performance deadlines set forth in this Agreement, City will not unreasonably withhold consent
to a request for extension of such deadlines.
10.3 Notices. Except as otherwise specified in this Agreement, all notices to be sent
pursuant to this Agreement or any other City Document shall be made in writing, and sent to the
Parties at their respective addresses specified below or to such other address as a Party may
designate by written notice delivered to the other Parties in accordance with this Section. All
such notices shall be sent by: (i) personal delivery, in which case notice is effective upon
delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be
deemed delivered on receipt if delivery is confirmed by a return receipt; or (iii) nationally
recognized overnight courier, with charges prepaid or charged to the sender's account, in which
case notice is effective on delivery if delivery is confirmed by the delivery service.
City: City of Santa Clarita
23920 Valencia Blvd., Suite 304
Santa Clarita, CA 91355
Attention: City Manager
Developer: Family Promise of Santa Clarita Valley
Attention: Executive Director
10.4 Attorneys' Fees. If either Party fails to perform any of its obligations under this
Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation
of any provision hereof, then the prevailing Party in any proceeding in connection with such
dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or
establishing its rights hereunder, including, without limitation, court costs and reasonable
attorneys' fees and disbursements.
10.5 Waivers, Modification. No waiver of any breach of any covenant or provision of
this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no
waiver shall be valid unless in writing and executed by the waiving Parry. An extension of time
for performance of any obligation or act shall not be deemed an extension of the time for
performance of any other obligation or act, and no extension shall be valid unless in writing and
executed by the Party granting the extension. This Agreement may be amended or modified only
by a written instrument executed by the Parties.
10.6 Binding on Successors. Subject to the restrictions on Transfers set forth in
Article VI, this Agreement shall bind and inure to the benefit of the Parties and their respective
permitted successors and assigns. Any reference in this Agreement to a specifically named Parry
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shall be deemed to apply to any permitted successor and assign of such Party who has acquired
an interest in compliance with this Agreement or under law.
10.7 Survival. All representations made by Developer hereunder, Developer's
obligations pursuant to Sections 4.8, 5.1, 5.5, 5.7, 9.1 and 10.1, and City's rights under Section
8.8 and 8.9, and all other provisions that expressly so state, shall survive the expiration or
termination of this Agreement.
10.8 Headings, Interpretation; Statutory References. The section headings and
captions used herein are solely for convenience and shall not be used to interpret this Agreement.
The Parties acknowledge that this Agreement is the product of negotiation and compromise on
the part of both Parties, and the Parties agree, that since both Parties have participated in the
negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared
by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had
prepared it. All references in the City Documents to particular statutes, regulations, ordinances or
resolutions of the United States, the State of California, or the City of Santa Clarita shall be
deemed to include the same statute, regulation, ordinance or resolution as hereafter amended or
renumbered, or if repealed, to such other provisions as may thereafter govern the same subject.
10.9 Action or Approval. Whenever action and/or approval by City is required under
this Agreement, the City's Authorized Representative or his or her designee may act on and/or
approve such matter unless specifically provided otherwise, or unless the Authorized
Representative determines in his or her discretion that such action or approval requires referral to
the City Council for consideration.
10.10 Entire Agreement. This Agreement, including Exhibits A through C attached
hereto and incorporated herein by this reference, together with the other City Documents contains
the entire agreement between the Parties with respect to the subject matter hereof, and supersedes
all prior written or oral agreements, understandings, representations or statements between the
Parties with respect to the subject matter hereof. If the Exhibits to this Agreement are
inconsistent with this Agreement, the more restrictive requirements shall control, as determined
by the City's Authorized Representative. In the event of a conflict between this Agreement and
the other City Documents, the more restrictive requirements shall control, as determined by the
Authorized Representative.
10.11 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be an original and all of which taken together shall constitute one instrument. The
signature page of any counterpart may be detached therefrom without impairing the legal effect
of the signature(s) thereon provided such signature page is attached to any other counterpart
identical thereto having additional signature pages executed by the other Parry. Any executed
counterpart of this Agreement may be delivered to the other Party by facsimile and shall be
deemed as binding as if an originally signed counterpart was delivered.
10.12 Severability. If any term, provision, or condition of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement
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shall continue in full force and effect unless an essential purpose of this Agreement is defeated
by such invalidity or unenforceability.
10.13 No Third -Party Beneficiaries. Except as expressly set forth herein, nothing
contained in this Agreement is intended to or shall be deemed to confer upon any person, other
than the Parties and their respective successors and assigns, any rights or remedies hereunder.
10.14 Parties Not Co -Venturers; Independent Contractor, No Agency Relationship.
Nothing in this Agreement is intended to or shall establish the Parties as partners, co -venturers,
or principal and agent with one another. The relationship of Developer and City shall not be
construed as a joint venture, equity venture, partnership or any other relationship. City neither
undertakes nor assumes any responsibility or duty to Developer (except as expressly provided in
this Agreement) or to any third party with respect to the Project. Developer and its employees
are not employees of City but rather are, and shall always be, considered independent
contractors. Furthermore, Developer and its employees shall at no time hold themselves out as
employees or agents of City. Except as City may specify in writing, Developer shall not have
any authority to act as an agent of City or to bind City to any obligation.
10.15 Time of the Essence: Calculation of Time Periods. Time is of the essence for
each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or event after
which the designated period of time begins to run is not to be included and the last day of the
period so computed is to be included, unless such last day is not a business day, in which event
the period shall run until the next business day. The final day of any such period shall be
deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement, a
"business day" means a day that is not a Saturday, Sunday, a federal holiday or a state holiday
under the laws of the State of California.
10.16 Governing Law, Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to principles of conflicts of
laws. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior
Court of Los Angeles County, California or in the Federal District Court for the Northern District
of California.
10.17 Inspection of Books and Records. Upon request, Developer shall permit the City
to inspect at reasonable times and on a confidential basis those books, records and all other
documents of Developer necessary to determine Developer's compliance with the terms of this
Agreement.
10.18 Political Activity. None of the funds, materials, property or services contributed
by City to Developer under this Agreement shall be used for any partisan political activity or the
election or defeat of any candidate for public office.
10.19 Non -Liability of City Officials, Employees and Agents. No member, official,
employee or agent of the City shall be personally liable to the Developer in the event of any
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default or breach by the City or for any amount which may become due to the Developer or its
successor or on any obligation under the terms of this Agreement.
10.20 Conflict of Interest.
(a) Except for approved eligible administrative or personnel costs, no person
described in subsection (b) below who exercises or has exercised any functions or
responsibilities with respect to the activities funded pursuant to this Agreement or who is in a
position to participate in a decision -making process or gain inside information with regard to
such activities, may obtain a personal or financial interest or benefit from the activity, or have an
interest in any contract, subcontract or agreement with respect thereto, or the proceeds
thereunder, either for themselves or those with whom they have family or business ties, during,
or at any time after, such person's tenure. The Developer shall exercise due diligence to ensure
that the prohibition in this Section is followed.
(b) In accordance with Government Code Section 1090 and the Political Reform Act,
Government Code Section 87100 et seq., no person who is a director, officer, partner, trustee or
employee or consultant of the Developer, or immediate family member of any of the preceding,
shall make or participate in a decision, made by the City or a City board, commission or
committee, if it is reasonably foreseeable that the decision will have a material effect on any
source of income, investment or interest in real property of that person or the Developer.
Interpretation of this Section shall be governed by the definitions and provisions used in the
Political Reform Act, Government Code Section 87100 et seq., its implementing regulations
manual and codes, and Government Code Section 1090.
SIGNATURES ON FOLLOWING PAGES.
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IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of
the date first written above.
DEVELOPER:
Family Promise of Santa Clarita Valley, a California not for profit public benefit corporation
By:
Print Name:
Title:
CITY:
City of Santa Clarita, a municipal corporation
ATTEST:
APPROVED AS TO FORM:
City Manager
City Clerk
City Attorney
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Exhihit A
LEGAL DESCRIPTION OF THE PROPERTY
(Attach legal description of the Property.)
Exhibit B
FORM OF AFFORDABLE HOUSING REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
(Attach form of Regulatory Agreement.)
Exhihit C
GRANT DEED
(Attach form of Grant Deed)
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Exhihit A
LEGAL DESCRIPTION OF THE PROPERTY
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described
as follows: LOT 52 OF TRACT NO. 2703, IN THE CITY OF SANTA CLARITA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28,
PAGE(S) 20 TO 26 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE SOUTHWESTERLY 20 FEET AS GRANTED TO THE STATE
OF CALIFORNIA PER THE DOCUMENT RECORDED JANUARY 21, 1975 AS
INSTRUMENT NO. 239, OFFICIAL RECORDS, IN SAID COUNTY RECORDERS OFFICE.
APN: 2833-016-037
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Santa Clarita
23920 Valencia Blvd., Suite 304
Santa Clarita, CA 91335
Attn: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder's use.
AFFORDABLE HOUSING REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
by and between
THE CITY OF SANTA CLARITA
and
FAMILY PROMISE OF SANTA CLARITA VALLEY
EA
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This Affordable Housing Regulatory Agreement and Declaration of Restrictive
Covenants (this "Agreement") is entered into effective as of , 20 ("Effective
Date") by and between the City of Santa Clarita, a municipal corporation ("City") and Family
Promise of Santa Clarita Valley, a California not for profit public benefit corporation ("Owner")
The City and the Owner are collectively referred to herein as the "Parties."
RECITALS
A. Owner is the owner of the real property located in the City of Santa Clarita, Los
Angeles County, California, at 23652 Newhall Rd., known as Los Angeles County Assessor's
Parcel No. 2833-016-037, and more particularly described in Exhibit A attached hereto (the
"Property").
B. Owner intends to develop, own, and operate a transitional and affordable housing
development consisting of 4 units and a separate structure to house certain service facilities
related to and in support of transitional and affordable housing (the "Project") in accordance
with that certain Disposition and Development Agreement (the "DDA") dated as of
, 2020, and executed by and between City and Owner. Capitalized terms used
without definition herein shall have the meaning ascribed to such terms in the DDA.
C. The DDA provides that the Restricted Units to be developed on the Property will
be required to be available to Eligible Households as transitional housing or at Affordable Rents
in accordance with this Agreement in perpetuity.
D. The purpose of this Agreement is to satisfy the affordability requirements of the
City's affordable housing program and to regulate and restrict the occupancy and rents of the
Project's Restricted Units for the benefit of the Project occupants. The Parties intend the covenants set
forth in this Agreement to run with the land and to be binding upon Owner and Owner's successors
and assigns for the full term of this Agreement.
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby E
agree as follows. 2
1. Definitions. The following terms have the meanings set forth in this Section wherever
used in this Agreement or the attached exhibits.
"Actual Household Size" means the actual number of persons in the applicable
household.
"Adjusted for Family Size Appropriate for the Unit" shall be determined consistent
with Section 50052.5(h) of the California Health and Safety Code, subject to the application of
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federal rules and regulations applicable to Project financing sources, including Section 42(g)(2)
of the Internal Revenue Code of 1986 as amended (or successor provision) if applicable.
"Affordable Rent" means the following amount, less a utility allowance and other fees
and charges required to be paid by tenants of the Project on a non -optional basis: The four (4)
units shall be restricted to households with incomes of not more than eighty percent (80%) of
AMI ("80% Units") and the monthly rent, if any, shall not exceed one -twelfth of thirty percent
(30%) of eighty percent (80%) of AMI, Adjusted for Family Size Appropriate for the Unit.
"Area Median Income" or "AMI" means the median income for Los Angeles
County, California, adjusted for Actual Household Size, as determined by HUD pursuant to
Section 8 of the United States Housing Act of 1937 and as published from time to time by
the State of California Department of Housing and Community Development (" HCD") in
Section 6932 of Title 25 of the California Code of Regulations or successor provision.
"City's Authorized Representative" means the City Manager of the City of Santa
Clarita.
"City Documents" means the DDA, the Assignment Agreement, and this
Agreement.
"DDA" is defined in Recital B.
"Eligible Household" means a household for which household Gross Income upon initial
occupancy does not exceed the maximum income level for a Restricted Unit as specified in
Section 2.1.
"Gross Income" shall have the meaning set forth in Section 6914 of Title 25 of the
California Code of Regulations as such section may be revised from time to time.
"HUD" means the U.S. Department of Housing and Urban Development.
a�
"Indemnitees" means, collectively, the City and its elected and appointed officers,
officials, employees, agents, consultants, contractors and representatives.
d
"Rent Restricted" is defined in Section 2.1.
"Restricted Unit" means a dwelling unit that is reserved for occupancy at an Affordable
Rent by Eligible Households of specified household income levels as set forth in Section 2.1.
2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for itself and its
successors and assigns, that the Property shall be used solely for the operation of a transitional
and affordable housing development in compliance with the DDA and the requirements set forth
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in this Agreement. Owner represents and warrants that it has not entered into any agreement that
would restrict or compromise its ability to comply with the occupancy and affordability restrictions
set forth in this Agreement, and Owner covenants that it shall not enter into any agreement that is
inconsistent with such restrictions without the express written consent of City.
2.1 Affordability and Occupancy Requirements. Throughout the term of this
Agreement (as defined in Section 4.1 below): all of the units in the Project shall be both Rent
Restricted and occupied (or if vacant, available for occupancy) by Eligible Households whose
household Gross Income is no greater than eighty percent (80%) of AML A dwelling unit shall
qualify as "Rent Restricted" if the gross rent, if any, charged for such unit does not exceed the
Affordable Rent for the applicable household income category as specified in this Section.
Notwithstanding any contrary provision of this Agreement, if any of the Project lenders,
Project investors, or regulatory agencies restrict a greater number of units than restricted by this
Agreement or require stricter household income eligibility or affordability requirements than
those imposed hereby, the requirements (including without limitation, the rent and occupancy
requirements imposed in connection with the use of project based Section 8 vouchers, housing
choice vouchers, or other rent subsidies) of such other lenders, investors or regulatory agencies
shall prevail. Without limiting the generality of the foregoing, if any residential units in the
Project are subsidized with Section 8 project -based vouchers through a Housing Assistance
Payment Contract with HUD, the rules and regulations applicable to such program shall prevail
with respect to the setting of rents, implementation of occupancy requirements, and
determination of household Gross Income for such units. In the event that project -based rental
assistance for the Project is terminated, the Parties will meet and confer in good faith to address
potential revisions to the rent restrictions imposed by this Agreement if necessary to maintain
Project feasibility.
2.2 Rents for Restricted Units. For all Restricted Units, rents, if any, shall be limited
to Affordable Rents for households of the applicable income limit in accordance with Section
2_1. The Restricted Units shall be allocated among affordability categories asset forth in
Section 2.1. Notwithstanding the foregoing, no tenant qualifying for a Restricted Unit shall be
denied continued occupancy of a unit in the Project because, after admission, such tenant's
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household income increases to exceed the qualifying limit for such Restricted Unit. A household
2
which at initial occupancy qualifies in a particular income category shall be treated as continuing
to be of such income category so long as the household's Gross Income does not exceed one
0
hundred forty percent (140%) of the applicable income limit. In the event the household Gross
Income of a household that qualified at the applicable income limit at initial occupancy exceeds
the applicable income limit for a unit, that unit will continue to be considered as satisfying the
applicable income limit if the unit remains Rent -Restricted.
In the event that recertification of tenant incomes indicates that the number of Restricted
Units actually occupied by Eligible Households falls below the number reserved for each income
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group as specified in this Section 2.2, Owner shall rectify the condition by renting the next
available dwelling unit(s) in the Project to Eligible Household(s) until the required income mix is
achieved.
If upon income recertification, a tenant household's income exceeds 80% of AMI
Adjusted for Actual Household Size, Owner may increase rent for such tenant to the lowest of
the following: (a) 30% of the tenant household's Gross Income, (b) the maximum rent allowed
under any affordability restrictions imposed by other Project lenders, and (c) if the Project has
been allocated low-income housing tax credits, the maximum rent allowed by Section 42 of the
Internal Revenue Code of 1986.
In the event of inconsistency between the provisions of this Section 2.2 and the rules
applicable to the Project in connection with low-income housing tax credits, the rules applicable
to low-income housing tax credits shall prevail.
2.3 No Condominium Conversion. Owner shall not convert the residential units in the
Project to condominium or cooperative ownership or sell condominium or cooperative rights to the
residential units in the Project during the term of this Agreement.
2.4 Non -Discrimination, Compliance with Fair Housing Laws.
2.4.1 City of Santa Clarita Residents and Employees. In order to ensure that
there is an adequate supply of affordable housing within the City of Santa Clarita for residents 0
and employees of businesses within the City, to the extent permitted by law and consistent with 0-
the program regulations for funding sources used for development of the Project, Owner shall 0
give a preference in the rental of the residential units in the Project to Eligible Households who
live or work in the City of Santa Clarita. Notwithstanding the foregoing, in the event of a U_
conflict between this provision and the provisions of Section 42 of the Internal Revenue Code of
1986, as amended, or HUD regulations applicable to the Project (including without limitation,
requirements applicable to the Project due to any Section 8 rental subsidy contract), the
provisions of such Section 42 and HUD regulations and requirements shall control. Owner shall
comply with City's Affirmative Marketing Policies or other rental policies and procedures as
they may be amended from time to time to ensure that residents and people who work in Santa
Clarita are provided reasonable notice and opportunity to rent units in the Project.
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2.4.2 Fair Housing. Owner shall comply with state and federal fair housing laws
in the marketing and rental of the units in the Project. Owner shall accept as tenants, on the same
basis as all other prospective tenants, seniors who are recipients of federal certificates or
vouchers for rent subsidies pursuant to the existing Section 8 program or any successor thereto.
2.4.3 Non -Discrimination. Owner shall not restrict the rental, sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on
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the basis of race, color, religion, creed, sex, sexual orientation, gender identity, disability, marital
status, ancestry, or national origin of any person. Owner covenants for itself and all persons
claiming under or through it, and this Agreement is made and accepted upon and subject to the
condition that there shall be no discrimination against or segregation of any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part
thereof, nor shall Owner or any person claiming under or through Owner 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, of,
or for the Property or part thereof. Owner shall include such provision in all deeds, leases,
contracts and other instruments executed by Owner, and shall enforce the same diligently and in
good faith.
All deeds, leases, and contracts pertaining to management of the Project, made or
entered into by Owner, its successors or assigns, as to any portion of the Property or the
Improvements shall contain the following language:
(a) (1) In Deeds, the following language shall appear:
Grantee herein covenants by and for itself, its successors and assigns, and all
persons claiming under or through it, that there shall be no discrimination against
0
or segregation of a person or of a group of persons on account of any basis listed
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in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
0
are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of
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subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
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in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
property herein conveyed nor shall the grantee or any person claiming under or
through the grantee 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
property herein conveyed. The foregoing covenant shall run with the land."
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
5 1. 11 and 799.5 of the Civil Code, relating to housing for senior citizens.
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Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
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apply to paragraph (1).
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(b) (1) In Leases, the following language shall appear:
The lessee herein covenants by and for the lessee and lessee's heirs, personal
representatives and assigns, and all persons claiming under the lessee or through
the lessee, that this lease is made subject to the condition that there shall be no
discrimination against or segregation of any person or of a group of persons on
account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin, ancestry or disability in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the property herein leased nor shall the lessee
or any person claiming under or through the lessee establish or permit any such
practice or practices of discrimination of segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the property herein leased.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
5 1. 11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1).
(c) In Contracts pertaining to management of the Project, the following
language, or substantially similar language prohibiting discrimination and
segregation shall appear:
There shall be no discrimination against or segregation of any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the property nor shall the transferee or any
person claiming under or through the transferee establish or permit any such
practice or practices of discrimination or segregation with reference to selection,
location, number, use or occupancy of tenants, lessee, subtenants, sublessees or
vendees of the land.
a
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
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Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
51.11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1).
3. Reporting Requirements; Access to Information; Inspections.
3.1 Tenant Certification. Owner or Owner's authorized agent shall obtain from each
household prior to initial occupancy of each Restricted Unit, and on every anniversary thereafter,
a written certificate containing all of the following in such format and with such supporting
documentation as City may reasonably require:
(i) The identity of each household member;
(ii) The total household Gross Income; and
(iii) The age of each household member or other basis upon which each household
member qualifies for occupancy under California Civil Code Section 51.3 et seq.
Owner shall retain such certificates for not less than three (3) years, and upon City's request,
shall provide copies of such certificates to City and make the originals available for City
inspection.
3.2 Annual Report; Inspections. Following completion of construction of the Project,
by not later than March 1 of each year during the term of this Agreement, Owner shall submit an
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annual report ("Annual Report") to the City in form satisfactory to City, together with a
W
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certification that the Project is in compliance with the affordability restrictions and occupancy
requirements of this Agreement. The Annual Report shall, at a minimum, include the following
information for each dwelling unit in the Project: (i) unit number; (ii) number of bedrooms; (iii)
current rent and other charges; (iv) dates of any vacancies during the previous year; (v) number
of people residing in the unit; (vi) total household Gross Income of residents; (vii) documentation
2
of source of household income; (viii) lease commencement and termination dates, (ix) initial
move -in date, and (x) the information required by Section 3.1.
0
Owner shall include with the Annual Report, an income recertification for each
household, documentation verifying tenant eligibility, and such additional information as City
may reasonably request from time to time in order to demonstrate compliance with this
Agreement. The Annual Report shall conform to the format requested by City; provided
°0
however, during such time that the Project is subject to a regulatory agreement restricting
,2
occupancy and/or rents pursuant to requirements imposed in connection with the use of state or
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federal low-income housing tax credits or tax-exempt bond financing, Owner may satisfy the
requirements of this Section that pertain to tenant income certification and rents by providing
City with a copy of compliance reports required in connection with such financing.
In addition to the information described above, the Annual Report shall include the
information on the status of the waiting list for units, including the number of households on the
list and the number of City of Santa Clarita residents and persons employed in the City on the
list. City may from time to time request additional or different information to be provided in the
Annual Report, and Owner shall promptly supply such information in the reports required
hereunder.
3.3. Maintenance of Records.
3.3.1 Owner shall maintain all records regarding the construction of the Project
for five (5) years after final payment and all other pending matters are closed. Owner shall also
maintain tenant leases, income certifications and other matters related to the leasing of the
affordable units for a period of three (3) years after the final date of occupancy by the tenant.
3.3.2 Records must be kept accurate and up-to-date. City shall notify Owner of
any records it deems insufficient. Owner shall have fifteen (15) calendar days from such notice
to correct any specified deficiency in the records, or, if more than fifteen (15) days shall be
reasonably necessary to correct the deficiency, Owner shall begin to correct the deficiency within
fifteen (15) days and diligently pursue the correction of the deficiency as soon as reasonably
possible.
3.4 Access to Records, Inspections.
3.4.1 With at least 48-hours' notice, during normal business hours, Owner shall
provide City and its authorized agents and representatives access to any books, documents,
papers and records of the Project for the purpose of making audits, examinations, excerpts and
transcriptions.
3.4.2 With at least 48-hours' notice, during normal business hours and as often
a�
as may be deemed necessary, City and its authorized agents and representatives shall be
permitted access to and the right to examine the Project and the Property and to interview tenants
and employees of the Project, for the purpose of verifying compliance with applicable regulations
and compliance with the conditions of this Agreement and the other City Documents.
4. Term of Agreement.
4.1 Term of Restrictions. This Agreement shall remain in effect in perpetuity.
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4.2 Effectiveness Succeeds Conveyance of Property. This Agreement shall remain
effective and fully binding for the full term hereof regardless of any sale, assignment, transfer, or
conveyance of the Project or the Property, or any part thereof or interest therein.
4.3 Reconveyance. Upon the termination of this Agreement, the Parties agree to
execute and record appropriate instruments to release and discharge this Agreement; provided,
however, the execution and recordation of such instruments shall not be necessary or a
prerequisite to the termination of this Agreement upon the expiration of the term.
5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby subjects
its interest in the Property and the Project to the covenants and restrictions set forth in this
Agreement. The City and Owner hereby declare their express intent that the covenants and
restrictions set forth herein shall be deemed covenants running with the land and shall be binding
upon and inure to the benefit of the heirs, administrators, executors, successors in interest,
transferees, and assigns of Owner and City, regardless of any sale, assignment, conveyance or
transfer of the Property, the Project or any part thereof or interest therein. Any successor -in -interest
to Owner, including without limitation any purchaser, transferee or lessee of the Property or the
Project (other than the tenants of the individual dwelling units within the Project) shall be subject
to all of the duties and obligations imposed hereby for the full term of this Agreement. Each and
every contract, deed, ground lease or other instrument affecting or conveying the Property or the
Project or any part thereof, shall conclusively be held to have been executed, delivered and accepted
subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether
such covenants, restrictions, duties and obligations are set forth in such contract, deed, ground lease
or other instrument. If any such contract, deed, ground lease or other instrument has been
executed prior to the date hereof, Owner hereby covenants to obtain and deliver to City an
instrument in recordable form signed by the parties to such contract, deed, ground lease or other
instrument pursuant to which such parties acknowledge and accept this Agreement and agree to
be bound hereby. Owner agrees for itself and for its successors that in the event that a court of
competent jurisdiction determines that the covenants herein do not run with the land, such
covenants shall be enforced as equitable servitudes against the Property and the Project in favor
of City.
6. Property Management, Repair and Maintenance, Marketing.
6.1 Management Responsibilities. Owner shall be responsible for all management
functions with respect to the Property and the Project, including without limitation the
selection of tenants, certification and recertification of household income and eligibility,
evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary
repairs, replacement of capital items, and security. City shall have no responsibility for
management or maintenance of the Property or the Project.
6.2 Management Entity. City shall have the right to review and approve the
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qualifications of the management entity proposed by Owner for the Project, and shall have the
right to review and approve any agreement executed between Owner and the management entity,
which approval shall not be unreasonably withheld. The contracting of management services to
a management entity shall not relieve Owner of its primary responsibility for proper
performance of management duties. City hereby approves Family Promise of Santa Clarita
Valley, a California no to for profit public benefit corporation, as the initial management entity
for the Project. Any subsequent management entity shall be subject to City review and approval,
which shall not be unreasonably withheld or delayed. Upon City determination and delivery of
written notice to Owner that Owner has failed to operate the Project in accordance with this
Agreement, subject to any applicable cure period and the approval of the Project lenders and
equity investors, City may require Owner to contract with a qualified management agent selected
by City and approved by the Project lender and equity investor, to operate the Project, or to make
such other arrangements as City deems necessary to ensure performance of the required
functions.
6.3 Repair, Maintenance and Security. Throughout the term of this Agreement,
Owner shall at its own expense, maintain the Property and the Project in good physical condition,
in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in
conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations.
Without limiting the foregoing, Owner agrees to maintain the Project and the Property (including
without limitation, the residential units, common areas, meeting rooms, landscaping, driveways,
parking areas and walkways) in a condition free of all waste, nuisance, debris, unmaintained
landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take
all reasonable steps to prevent the same from occurring on the Property or at the Project. Owner
shall prevent and/or rectify any physical deterioration of the Property and the Project and
shall make all repairs, renewals and replacements necessary to keep the Property and the
improvements located thereon in good condition and repair. Owner shall provide adequate
security measures for the Project, including without limitation, the installation of adequate
lighting and deadbolt locks.
6.3.1 Additional Requirements. All construction work and professional services u
for the Project shall be performed by persons or entities licensed or otherwise authorized to
perform the applicable work or service in the State of California and shall have a current City of
Santa Clarita business license if required under local law. To the extent allowed by state and
federal laws, Owner shall limit the installation of satellite dish, antenna and other such
equipment to screened locations on the Property as approved by the City. Owner shall diligently
work to resolve complaints related to noise, parking, litter or other neighborhood concerns.
6.4 City's Right to Perform Maintenance. In the event that Owner breaches any of the
covenants contained in Section 6.3, and such default continues for a period of ten (10) days after
written notice from City (with respect to graffiti, debris, and waste material) or thirty (30) days
after written notice from City (with respect to landscaping, building improvements and general
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maintenance), then City, in addition to any other remedy it may have under this Agreement or at
law or in equity, shall have the right, but not the obligation, to enter upon the Property and
perform all acts and work necessary to protect, maintain, and preserve the improvements and the
landscaped areas on the Property. All costs expended by City in connection with the foregoing,
shall be paid by Owner to City upon demand. All such sums remaining unpaid thirty (30) days
following delivery of City's invoice therefor shall bear interest at the lesser of 10% per annum or
the highest rate permitted by applicable law.
6.5 Fees, Taxes, and Other Levies. Owner shall be responsible for payment of all fees,
assessments, taxes, charges, liens and levies applicable to the Property or the Project, including
without limitation possessory interest taxes, if applicable, imposed by any public entity, and shall
pay such charges prior to delinquency. However, Owner shall not be required to pay any such
charge so long as (a) Owner is contesting such charge in good faith and by appropriate
proceedings, (b) Owner maintains reserves adequate to pay any contested liabilities, and (c) on
final determination of the proceeding or contest, Owner immediately pays or discharges any
decision or judgment rendered against it, together with all costs, charges and interest. The
foregoing is not intended to impair Owner's ability to apply for any applicable exemption from
property taxes or other assessments and fees.
6.6 Insurance Coverage. Throughout the term of this Agreement Owner shall comply
with the insurance requirements set forth in Exhibit B, and shall, at Owner's expense, maintain in
full force and effect insurance coverage as specified in Exhibit B.
6.7 Property Damage or Destruction. If any part of the Project is damaged or
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destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent
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restriction requirements set forth in this Agreement. Such work shall be commenced as soon
as reasonably practicable after the damage or loss occurs and shall be completed within one
U_
year thereafter or as soon as reasonably practicable, provided that insurance proceeds are
available to be applied to such repairs or restoration within such period and the repair or
restoration is financially feasible. During such time that lenders or low-income housing tax
credit investors providing financing for the Project impose requirements that differ from the
requirements of this Section the requirements of such lenders and investors shall prevail.
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7. Recordation, Subordination. This Agreement shall be recorded in the Official Records of
Los Angeles County. The City agrees that the City will not withhold consent to reasonable
requests for subordination of this Agreement to deeds of trust provided for the benefit of lenders
identified in the financing plan submitted to, and approved by, City for the Project, as such plan
may be updated with City approval, provided that the instruments effecting such subordination
include reasonable protections to the City in the event of default, including without limitation,
extended notice and cure rights.
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8. Transfer and Encumbrance.
8.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement,
except as permitted pursuant to the DDA or this Agreement, Owner shall not directly or
indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial
sale, transfer, conveyance, assignment or lease (collectively, "Transfer") of the whole or any
part of the Property, the Project, or the improvements located on the Property, without the prior
written consent of the City, which approval shall not be unreasonably withheld. In addition, prior
to the expiration of the term of this Agreement, except as expressly permitted by this Agreement
or the DDA, Owner shall not undergo any significant change of ownership without the prior
written approval of City. For purposes of this Agreement, a "significant change of ownership"
shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in
aggregate of the present ownership and /or control of Owner, taking all transfers into account on
a cumulative basis; provided however, neither the admission of an investor limited partner, nor
the transfer by the investor limited partner to subsequent limited partners shall be restricted by
this provision.
8.2 Requirements for Proposed Transfers. The City may, in the exercise of its sole
discretion, consent to a proposed Transfer of this Agreement, the Property, the Improvements or
part thereof if all of the following requirements are met:
(i) The proposed transferee demonstrates to the City's satisfaction that it has
the qualifications, experience and financial resources necessary and adequate as may be
reasonably determined by the City to competently complete and manage the Project and to
otherwise fulfill the obligations undertaken by the Owner under this Agreement.
(ii) The Owner and the proposed transferee shall submit for City review and U_
approval all instruments and other legal documents proposed to effect any Transfer of all or any
part of or interest in the Property, the Improvements or this Agreement together with such
documentation of the proposed transferee's qualifications and development capacity as the City
may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and
obligations of the Owner under this Agreement and the other City Documents arising after the <
effective date of the Transfer and all obligations of Owner arising prior to the effective date of it
the Transfer (unless Owner expressly remains responsible for such obligations) and shall agree to
be subject to and assume all of Owner's obligations pursuant to the Conditions of Approval and
all other conditions, and restrictions set forth in this Agreement.
(iv) The Transfer shall be effectuated pursuant to a written instrument
satisfactory to the City in form recordable in the Official Records.
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Consent to any proposed Transfer may be given by the City's Authorized Representative
unless the City's Authorized Representative, in his or her discretion, refers the matter of approval
to the City Council_ If the City has not rejected a proposed Transfer or requested additional
information regarding a proposed Transfer in writing within forty-five (45) days following City's
receipt of written request by Owner, the proposed Transfer shall be deemed approved.
8.3 Effect of Transfer without City Consent. In the absence of specific written
agreement by the City, no Transfer of the Property or the Project shall be deemed to relieve the
Owner or any other party from any obligation under this Agreement. It shall be an Event of
Default hereunder entitling City to pursue remedies, if without the prior written approval of the
City, Owner assigns or Transfers this Agreement, the Improvements, or the Property in violation
of Section 8.
8.4 Recovery of City Costs. Owner shall reimburse City for all reasonable City costs,
including but not limited to reasonable attorneys' fees, incurred in reviewing instruments and
other legal documents proposed to effect a Transfer under this Agreement and in reviewing the
qualifications and financial resources of a proposed successor, assignee, or transferee within ten
(10) days following City's delivery to Owner of an invoice detailing such costs; provided
however, and (i) reimbursement of City costs incurred in connection with review of Transfers
proposed to be implemented prior to or concurrently with the Close of Escrow (as defined in the
DDA) shall be included within the reimbursement limit set forth in Section 6.5 of the DDA.
8.5 Encumbrances. Owner agrees to cooperate with City in good faith to ensure thatCL
0
all deeds of trust or other security instruments and any applicable subordination agreement
recorded against the Property, the Project or part thereof for the benefit of a lender other than
U_
City ("Third -Party Lender") shall contain each of the following provisions: (i) Third -Parry
W
Lender shall use its best efforts to provide to City a copy of any notice of default issued to Owner
U_
concurrently with provision of such notice to Owner; and (ii) City shall have the reasonable right,
but not the obligation, to cure any default by Owner within the same period of time provided to
Owner for such cure extended by an additional ninety (90) days. Owner agrees to provide to City
a copy of any notice of default Owner receives from any Third -Parry Lender within three (3)
a�
business days following Owner's receipt thereof.
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8.6 Mortgagee Protection. No violation of any provision contained herein shall defeat
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or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon
it
all or any portion of the Project or the Property, and the purchaser at any trustee's sale or
foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the
acquisition of title by such purchaser. Such purchaser shall be bound by and subject to this
Agreement from and after such trustee's sale or foreclosure sale. Promptly upon determining
that a violation of this Agreement has occurred, City shall give written notice to the holders of
record of any mortgages or deeds of trust encumbering the Project or the Property that such
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violation has occurred.
9. Default and Remedies.
9.1 Events of Default. The occurrence of any one or more of the following events
shall constitute an event of default hereunder ("Event of Default"):
(i) The occurrence of a Transfer in violation of Section 8 hereof,
(ii) Owner ceases for more than 90 days operation (i) of the Project as a
transitional or affordable housing project, subject to affordability and occupancy restrictions in
accordance with this Agreement; and/or (ii) of program services in support of transitional and
affordable housing;
(iii) Owner's failure to maintain insurance on the Property and the Project as
required hereunder, and the failure of Owner to cure such default within five (5) days;
(iv) Subject to Owner's right to contest the following charges, Owner's failure
to pay taxes or assessments due on the Property or the Project or failure to pay any other charge
that may result in a lien on the Property or the Project, and Owner's failure to cure such default
within twenty (20) days of delinquency, but in all events prior to the date upon which the holder
of any such lien has the right to foreclose thereon;
(v) A default arises under any loan secured by a mortgage, deed of trust or
other security instrument recorded against the Property and remains uncured beyond any
applicable cure period such that the holder of such security instrument has the right to accelerate
repayment of such loan;
(vi) A default arises under the DDA or the Assignment Agreement and remains
uncured beyond the expiration of any applicable cure period; or
(vii) Owner's default in the performance of any term, provision or covenant
under this Agreement (other than an obligation enumerated in this Section 9.1), and unless such
0
provision specifies a shorter cure period for such default, the continuation of such default for
2
thirty (30) days following the date upon which City shall have given written notice of the default
<
to Owner, or if the nature of any such non -monetary default is such that it cannot be cured within
0
thirty (30) days, Owner's failure to commence to cure the default within thirty (30) days and
thereafter prosecute the curing of such default with due diligence and in good faith to
completion.
The limited partners of Owner shall have the right to cure any default of Owner hereunder
upon the same terms and conditions afforded to Owner; provided however, if the default is of
such nature that the limited partners reasonably determine that it is necessary to replace the
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general partner of Owner in order to cure such default, then the cure period shall be extended by
an additional sixty (60) days after the removal and replacement of such general partner, provided
that the limited partners have promptly commenced and diligently proceeded with all requisite
actions to effect such removal and replacement. City shall provide a copy of any notice of
default hereunder to the limited partners at the address set forth in Section 11.3 hereof, or to such
other address provided to the City in writing, concurrently with the provision of such notice to
Owner.
9.2 Remedies. Upon the occurrence of an Event of Default and its continuation
beyond any applicable cure period, City may proceed with any of the following remedies:
(i) Bring an action for equitable relief seeking the specific performance of the terms
and conditions of this Agreement, and/or enjoining, abating, or preventing any
violation of such terms and conditions, and/or seeking declaratory relief,
(ii) For violations of obligations with respect to rents for Restricted Units, impose a
charge in an amount equal to the actual amount collected in excess of the
Affordable Rent; or
(iii) Pursue any other remedy allowed under the City Documents or at law or in equity.
Each of the remedies provided herein is cumulative and not exclusive. The City may
exercise from time to time any rights and remedies available to it under applicable law or in
equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this
Agreement.
10. Indemnity. To the greatest extent permitted by law, Owner shall indemnify, defend (with
counsel approved by City) and hold the Indemnitees harmless from and against all Claims arising
directly or indirectly, in whole or in part, as a result of or in connection with Owner's
construction, management, or operation of the Property and the Project or any failure to perform
any obligation as and when required by this Agreement. Owner's indemnification obligations
under this Section 10 shall not extend to Claims to the extent resulting from the gross negligence
or willful misconduct of Indemnitees. The provisions of this Section 10 shall survive the
expiration or earlier termination of this Agreement. City does not and shall not waive any rights
against Owner that it may have by reason of any indemnity and hold harmless provision set forth
in this Agreement because of the acceptance by City, or the deposit with City by Owner, of any
of the insurance policies described in this Agreement.
10.1 Terms Applicable to Indemnity Provisions. The terms set forth in this Section
10.1 shall apply to all provisions of this Agreement that pertain to Owner's obligations to
indemnify City and the other Indemnitees. In connection with each such provision, all of the
following shall apply:
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(a) City does not and shall not waive any rights against Owner that it may have by
reason of any indemnity and hold harmless provision set forth in this Agreement because of the
acceptance by City, or the deposit with City by Owner, of any of the insurance policies described
in this Agreement.
(b) Owner's obligation to indemnify the Indemnitees shall not be limited or impaired
by any of the following: (i) any amendment or modification of any City Document; (ii) any
extensions of time for performance required by any City Document; (iii) the accuracy or
inaccuracy of any representation and warranty made by Owner under this Agreement or by
Owner or any other party under any City Document, and (iv) the release of Owner or any other
person, by City or by operation of law, from performance of any obligation under any City
Document.
(c) The obligations of Owner to indemnify the Indemnitees shall survive the term of
this Agreement.
11. Miscellaneous.
11.1 Amendments. This Agreement may be amended or modified only by a written
instrument signed by both Parties.
11.2 No Waiver. Any waiver by City of any term or provision of this Agreement must
be in writing. No waiver shall be implied from any delay or failure by City to take action on
0-
any breach or default hereunder or to pursue any remedy allowed under this Agreement or
0
applicable law. No failure or delay by City at any time to require strict performance by Owner of
W
any provision of this Agreement or to exercise any election contained herein or any right, power
U-
or remedy hereunder shall be construed as a waiver of any other provision or any succeeding
breach of the same or any other provision hereof or a relinquishment for the future of such
election.
11.3 Notices. Except as otherwise specified herein, all notices to be sent pursuant to
E
this Agreement shall be made in writing, and sent to the Parties at their respective addresses
2
specified below or to such other address as a Party may designate by written notice delivered to
the other parties in accordance with this Section. All such notices shall be sent by: (i) personal
0
delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return
receipt requested, in which case notice shall be deemed delivered upon receipt if delivery is
confirmed by a return receipt; or (iii) nationally recognized overnight courier, with charges
prepaid or charged to the sender's account, in which case notice is effective on delivery if
delivery is confirmed by the delivery service.
City: City of Santa Clarita
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23920 Valencia Blvd., Suite 304
Santa Clarita, CA 91355
Attention: City Manager
Owner: Family Promise of Santa Clarita Valley
Attention: Executive Director
11.4 Further Assurances. The Parties shall execute, acknowledge and deliver to the
other such other documents and instruments, and take such other actions, as either shall
reasonably request as may be necessary to carry out the intent of this Agreement.
11.5 Parties Not Co -Venturers; Independent Contractor, No Agency Relationship.
Nothing in this Agreement is intended to or shall establish the Parties as partners, co -venturers,
or principal and agent with one another. The relationship of Owner and City shall not be
construed as a joint venture, equity venture, partnership or any other relationship. City neither
undertakes nor assumes any responsibility or duty to Owner (except as expressly provided in this
Agreement) or to any third party with respect to the Project. Owner and its employees are not
employees of City but rather are, and shall always be considered independent contractors.
Furthermore, Owner and its employees shall at no time pretend to be or hold themselves out as
employees or agents of City. Except as City may specify in writing, Owner shall not have any
authority to act as an agent of City or to bind City to any obligation.
11.6 Action by the City. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, consent or request by the City is required or permitted
under this Agreement, such action shall be in writing, and such action may be given, made or
taken by the City's Authorized Representative or by any person who shall have been designated
by the City's Authorized Representative, without further approval by the City Council.
11.7 Non -Liability of City and City Officials, Employees and Agents. No member,
official, employee or agent of the City shall be personally liable to Owner or any successor in
interest, in the event of any default or breach by the City, or for any amount of money which may
become due to Owner or its successor or for any obligation of City under this Agreement.
11.8 Headings, Construction, Statutory References. The headings of the sections and
paragraphs of this Agreement are for convenience only and shall not be used to interpret this
Agreement. The language of this Agreement shall be construed as a whole according to its fair
meaning and not strictly for or against any Party. All references in this Agreement to particular
statutes, regulations, ordinances or resolutions of the United States, the State of California, or the
City of Santa Clarita shall be deemed to include the same statute, regulation, ordinance or
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resolution as hereafter amended or renumbered, or if repealed, to such other provisions as may
thereafter govern the same subject.
11.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
11.10 Governing Law; Venue. This Agreement shall be construed in accordance with
the laws of the State of California without regard to principles of conflicts of law. Any action to
enforce or interpret this Agreement shall be filed and heard in the Superior Court of Los Angeles
County, California or in the Federal District Court for the Southern District of California.
11.11 Attorneys' Fees and Costs. If any legal or administrative action is brought to
interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all
reasonable attorneys' fees and costs incurred in such action.
11.12 Severability. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of
the remaining provisions shall not be affected or impaired thereby.
11.13 Entire Agreement, Exhibits. This Agreement, together with the DDA and the
Assignment Agreement contains the entire agreement of Parties with respect to the subject matter
hereof, and supersedes all prior oral or written agreements between the Parties with respect
thereto. Exhibits A and B, attached hereto are incorporated herein by this reference.
11.14 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
SIGNATURES ON FOLLOWING PA GEM.
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IN WITNESS WHEREOF, the Parties have executed this Affordable Housing Regulatory
Agreement and Declaration of Restrictive Covenants as of the date first written above.
CITY:
CITY OF SANTA CLARITA, a California municipal corporation
ATTEST:
am
, City Manager
City Clerk
APPROVED AS TO FORM:
City Attorney
OWNER:
FAMILY PROMISE OF SANTA CLARITA VALLEY
By:
Print Name:
Title:
SIGNATURES MUST BE NOTARIZED.
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
ss
County of )
On , before me,
(Name of Notary)
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
ss
County of )
On , before
(Name of Notary)
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
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Exhibit A
LEGAL DESCRIPTION OF THE PROPERTY
The land referred to is situated in the County of Los Angeles, City of Santa Clarita, State of
California, and is described as follows:
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described
as follows: LOT 52 OF TRACT NO. 2703, IN THE CITY OF SANTA CLARITA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28,
PAGE(S) 20 TO 26 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
EXCEPT THEREFROM THE SOUTHWESTERLY 20 FEET AS GRANTED TO THE STATE
OF CALIFORNIA PER THE DOCUMENT RECORDED JANUARY 21, 1975 AS
INSTRUMENT NO. 239, OFFICIAL RECORDS, IN SAID COUNTY RECORDERS OFFICE.
APN: 2833-016-037
APN: 2833-016-037
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Exhibit B
INSURANCE REQUIREMENTS
Prior to initiating work on the Project and continuing throughout the term of this
Agreement, Owner shall obtain and maintain the following policies of insurance and shall comply
with all provisions set forth in this Exhibit.
I. General Requirements. Project construction shall not commence until Owner shall have
obtained all insurance required under this Section and such insurance shall have been approved by
the City Attorney as to form and carrier and the City Manager or his designee as to sufficiency,
nor shall Owner allow any contractor or subcontractor to commence work on the Project until all
insurance required of the Owner and/or contractor or subcontractor shall have been so obtained
and approved. All requirements herein provided shall appear either in the body of the insurance
policies or as endorsements, and shall specifically bind the insurance carrier.
Owner shall procure and maintain the following insurance providing coverage against claims for
injuries to persons or damages to property that may arise from or in connection with the
development, construction, management, or operation of the Project by the Owner or the Owner's
agents, representatives, employees and contractors, or subcontractors, including the following:
(a) Commercial General Liability: The Owner (and until issuance of the final 0-
certificate of occupancy or equivalent for the Project all contractors working on behalf of Owner 0
on the Project) shall maintain a commercial general liability policy in an occurrence policy for W
protection against all claims arising from injury to person or persons not in the employ of the W
Owner and against all claims resulting from damage to any property due to any act or omission of
the Owner, its agents, or employees in the conduct or operation of the work or the execution of
this Agreement. Such insurance shall include products and completed operations liability, blanket
contractual liability, personal injury liability, and broad form property damage coverage. Coverage
shall be at least as broad as Insurance Services Office Commercial General Liability coverage.
(b) Commercial Automobile Liability: The Owner (and until issuance of the final
certificate of occupancy or equivalent for the Project all contractors working on behalf of Owner 0
on the Project) shall maintain insurance for protection against all claims arising from the use of
vehicles, owned, hired, non -owned, or any other vehicle in connection with the development,
construction, operation or management of the Project. Such insurance shall cover the use of
automobiles and trucks on and off the site of the Property. Coverage shall be at least as broad as
Insurance Services Office covering Commercial Automobile Liability, any auto, owned, non -
owned and hired auto. X
(c) Workers' Compensation Insurance: The Owner (and the general partners thereof)
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shall furnish or cause to be furnished to City evidence satisfactory to City that Owner (and the
general partners thereof), and any contractor with whom Owner has contracted for the
performance of work on the Property or otherwise pursuant to this Agreement, shall maintain
Workers' Compensation Insurance as required by the State of California and Employer's Liability
Insurance.
(d) Builder's Risk: Upon commencement of construction work and continuing until
issuance of the final certificate of occupancy or equivalent for the Project, Owner and all
contractors working on behalf of Owner shall maintain a policy of builder's all-risk insurance in
an amount not less than the full insurable cost of the Project on a replacement cost basis naming
City as loss payee as its interests may appear.
(e) Professional Liability/Errors and Omissions: Owner shall require the Project
architect, engineer, and general contractor to maintain Professional Liability/Errors and Omissions
insurance with limits not less than Two Million Dollars ($2,000,000) each claim. Certificates
evidencing this coverage must reference both the Owner and the Indemnitees. If the professional
liability/errors and omissions insurance is written on a claims made form: (i) the retroactive date
must be shown and must be before the Effective Date, (ii) insurance must be maintained and
evidence of insurance must be provided for at least three (3) years after completion of Project
construction, and (iii) if coverage is cancelled or non -renewed and not replaced with another
claims made policy form with a retroactive date prior to the Effective Date, Owner must purchase,
or require the provision of, extended period coverage for a minimum of three (3) years after
completion of construction.
(f) Pro e : Commencing upon completion of construction of the Project, Owner
shall maintain property insurance covering all risks of loss, including earthquake and flood (if
required) for 100% of the replacement value of the Project with deductible, if any, in an amount
acceptable to City, naming City as loss payee as its interests may appear.
(g) Pollution Legal Liability Insurance: Owner shall require the contractor to carry
pollution liability insurance to provide third -party coverage for bodily injury, property damage,
cleanup, and related defense costs.
2. Minimum Limits, Adjustments. Insurance shall be maintained with limits no less than the
following:
(a) Commercial General Liability and Property Damage: $2,000,000 per occurrence
and $5,000,000 annual aggregate for bodily injury, personal injury and property damage; provided
however, with City's advance written approval, subcontractors may maintain liability coverage
with limits not less than $1,000,000 per occurrence, $2,000,000 annual aggregate.
(b) Products and Completed Operations: $3,000,000 per occurrence/aggregate.
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(c) Commercial Automobile Liability: $2,000,000 combined single limit.
(d) Employer's Liability:
Bodily Injury by Accident - $1,000,000 each accident.
Bodily Injury by Disease - $1,000,000 policy limit.
Bodily Injury by Disease - $1,000,000 each employee.
(e) Professional Liability/Errors and Omissions: $2,000,000 per occurrence or claim. If
the policy provides coverage on a claims -made basis, the retroactive date must be shown and must
be before the date of the Agreement or the beginning of the contract work.
(f) Pollution Liability Insurance: Contractors' pollution legal liability with limits no
less than $1,000,000 per occurrence or claim and $2,000,000 policy aggregate. If the policy
provides coverage on a claims -made basis, the retroactive date must be shown and must be before
the date of the Agreement or the beginning of the contract work.
Coverage limits, and if necessary, the terms and conditions of insurance, shall be reasonably
adjusted from time to time (not less than every five (5) years after the Effective Date nor more
than once in every three (3) year period) to address changes in circumstance, including, but not
limited to, changes in inflation and the litigation climate in California. City shall give written
notice to Owner of any such adjustments, and Owner shall provide City with amended or new
insurance certificates or endorsements evidencing compliance with such adjustments within thirty
(30) days following receipt of such notice.
3. Deductibles and Self -Insured Retention. Any deductibles or self -insured retention must be
declared to, and approved by, the City. Payment of all deductibles and self -insured retentions will
be the responsibility of Owner. If the City determines that such deductibles or retentions are
unreasonably high, either the insurer shall reduce or eliminate such deductibles or self-insurance
retentions as respects the Indemnitees or Owner shall procure a bond guaranteeing payment of
losses and related investigations, claims administration and defense.
4. Additional Requirements. The required general liability and automobile policies shall
contain, or be endorsed to contain, the following provisions:
a. The Indemnitees are to be covered as Additional Insureds as respects: liability
arising out of activities performed by or on behalf of the Owner; products and completed
operations of the Owner; premises owned, occupied or used by the Owner; or automobiles
owned, leased, hired or borrowed by the Owner. The coverage shall contain no special
limitations on the scope of protection afforded to the Indemnitees. Additional insured
endorsements for the general liability coverage shall use Insurance Services Office (ISO) Form
No. CG 20 09 11 85 or CG 20 10 11 85, or equivalent, including (if used together) CG 2010
10 01 and CG 2037 10 01; but shall not use the following forms: CG 20 10 10 93 or 03 94.
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b. All insurance shall be primary insurance as respects the Indemnitees. Any
insurance or self-insurance maintained by the Indemnitees shall be excess of the
Owner's/contractor's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect coverage provided to the Indemnitees.
d. The Owner's insurance shall apply separately to each insured against whom claim
is made or suit is brought except, with respect to the limits of the insurer's liability.
e. Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled by either parry, reduced in coverage or in
limits except after thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the City.
f. If any insurance policy or coverage required hereunder is canceled or reduced,
Owner shall, within five (5) days after receipt of notice of such cancellation or reduction in
coverage, but in no event later than the effective date of cancellation or reduction, file with
City a certificate showing that the required insurance has been reinstated or provided through
another insurance company or companies. Upon failure to so file such certificate, City may,
without further notice and at its option, procure such insurance coverage at Owner's expense,
and Owner shall promptly reimburse City for such expense upon receipt of billing from City.
g. Owner agrees to waive subrogation rights for commercial general liability,
automobile liability and worker's compensation against Indemnitees regardless of the W
applicability of any insurance proceeds, and to require all contractors, subcontractors or others LO
involved in any way with the Services to do likewise. Each insurance policy shall contain a
waiver of subrogation for the benefit of City. If any required insurance is provided under a
form of coverage that includes an annual aggregate limit or provides that claims investigation
or legal defense costs are included in such annual aggregate limit, such annual aggregate limit
shall be three times the applicable occurrence limits specified above.
h. It shall be a requirement under this Agreement that any available insurance
proceeds broader than or in excess of the specified minimum insurance coverage requirement
and/or limits shall be available to the additional insured. Furthermore, the requirement for
coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement,
or (2) the broader coverage and maximum limits of coverage of any insurance policy or
proceeds available to the named insured; whichever is greater. For all liability insurance
required by this Agreement, Owner (and Owner's contractors, as applicable) shall obtain
endorsements that name the Indemnitees as additional insured in the full amount of all X
applicable policies, notwithstanding any lesser minimum limits specified in this Agreement.
This Agreement requires Owner (and Owner's contractors) to obtain and provide for the
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benefit of the Indemnitees, additional insured coverage in the same amount of insurance
carried by Owner (or Owner's contractors, as applicable), but in no event less than the
minimum amounts specified in this Agreement. In the event that Owner (or Owner's
contractors as applicable) obtains insurance policies that provide liability coverage in excess
of the amounts specified in this Agreement, the actual limits provided by such policies shall be
deemed to be the amounts required under this Agreement. Without limiting the foregoing, the
limits of liability coverage specified in this Agreement are not intended, nor shall they operate,
to limit City's ability to recover amounts in excess of the minimum amounts specified in this
Agreement.
i. The limits of insurance required in this Agreement may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess insurance
shall contain or be endorsed to contain a provision that such coverage shall also apply on a
primary and non-contributory basis for the benefit of the City before the City's own insurance
or self-insurance shall be called upon to protect it as a named insured.
5. Acceptability of Insurers. Companies writing the insurance required hereunder shall be
licensed to do business in the State of California. Insurance is to be placed with insurers with a
current A.M. Best's rating of no less than A: VH.
6. Verification of Coverage. Prior to the Effective Date of this Agreement, Owner shall
furnish City with certificates of insurance in form acceptable to City evidencing the insurance
coverage required under paragraphs (a), (b), (c), and (e) of Section 1 above, duly executed
endorsements evidencing the Indemnitees' status as additional insured, and all other endorsements
and coverage required hereunder pertaining to such coverage. Prior to commencement of
construction work, Owner shall furnish City with certificates of insurance in form acceptable to
City evidencing the insurance coverage required under paragraphs (d) and (g) of Section 1 above. W
Prior to City's issuance of a final certificate of occupancy or equivalent for the Project, Owner LO
shall furnish City with certificates of insurance in form acceptable to City evidencing the
insurance coverage required under paragraph (f) of Section 1 above. Owner shall furnish the City
with original endorsements effecting coverage required by this clause. The endorsements are to
be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements
are to be received and approved by the City before the Services commence.
7. Insurance Certificates and Endorsements. Owner shall provide to City all the necessary
insurance documents, including the applicable amendatory endorsements (or copies of the 0
applicable policy language effecting coverage required by this clause) and a copy of the
Declarations and Endorsement Page of required Owner policies listing all required policy
endorsements to the City. Insurance Certificates and Endorsements are to be received and
approved by the City within the time periods specified in Section 6 above. Should Owner cease to
have insurance as required at any time, all work by Owner pursuant to this Agreement shall cease
until insurance acceptable to the City is provided. Upon City's request, Owner shall, within thirty X
(30) days of the request, provide or arrange for the insurer to provide to City, complete certified
copies of all insurance policies required under this Agreement. City's failure to make such
28 a
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request shall not constitute a waiver of the right to require delivery of the policies in the future.
29
14C
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Santa Clarita
23920 Valencia Blvd., Suite 304
Santa Clarita, CA 91355
Attn: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
(SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
DOCUMENTARY TRANSFER TAX IS $
_X_ Computed on full value of property conveyed, or
Computed on full value less liens and encumbrances remaining at time of sale.
Unincorporated area _X_ City of Petaluma
GRANT DEED
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the City of Santa Clarita, a municipal corporation (the "Grantor") hereby
grants and conveys to Family Promise of Santa Clarita Valley, a California not for profit
public benefit corporation ("Grantee"), the real property located at 23652 Newhall Avenue, in
the City of Santa Clarita, known as Los Angeles County Assessor's Parcel No. 2833-016-
037, and more particularly described in Exhibit A attached hereto and incorporated herein
(the "Property").
1. Development Requirements. The Property is conveyed subject to that certain
Disposition and Development Agreement entered into by and between the Grantor and the
Grantee dated as of , 20_ (the "Agreement"). The Grantor and the Grantee
have executed a Memorandum of the Agreement dated as of the date hereof (the
"Memorandum") which will be recorded in the Official Records of Los Angeles County
("Official Records") substantially concurrently herewith.
2. Development of Improvements. The Grantee hereby covenants and agrees, for itself
and its successors and assigns, that the Grantee and such successors and assigns shall
promptly begin and diligently prosecute to completion the construction of improvements on
the Property (the "Improvements") in accordance with the Agreement, including without
limitation in accordance with the provisions of the Agreement that specify the required
number of residential units to be constructed and the time period within which construction of
the Improvements must be completed. The Property is conveyed subject to the
requirements of that certain Affordable Housing Regulatory Agreement and Declaration of
Restrictive Covenants that will be recorded substantially concurrently herewith (the
"Regulatory Agreement").
3. Certificate of Completion. Promptly following completion of construction of the
Improvements and the issuance of a final certificate of occupancy for the Improvements, the
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Grantor will furnish the Grantee with an instrument so certifying (a "Certificate of
Completion"). Such Certificate of Completion shall constitute conclusive determination of
satisfactory completion of construction of the Improvements and compliance with the
covenants in the Agreement and in this Grant Deed regarding the dates for the
commencement and completion of such construction.
4. Non -Discrimination. Grantee shall not restrict the rental, sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on the
basis of race, color, religion, creed, sex, sexual orientation, disability, marital status,
ancestry, or national origin of any person. Grantee covenants for itself and all persons
claiming under or through it, and this Grant Deed is made and accepted upon and subject to
the condition that there shall be no discrimination against or segregation of any person or
group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision
(m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Property or part thereof, nor shall Grantee or any person claiming under or
through Grantee 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, of, or for the Property or part thereof.
All deeds, leases or contracts made or entered into by Grantee, its successors or
assigns, as to any portion of the Property or the Improvements shall contain the following
language:
(a) In Deeds, the following language shall appear:
"(1) Grantee herein covenants by and for itself, its successors and assigns,
and all persons claiming under or through it, that there shall be no
discrimination against or segregation of a person or of a group of persons on
account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the property herein conveyed
nor shall the grantee or any person claiming under or through the grantee
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
property herein conveyed. The foregoing covenant shall run with the land.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status,
nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4,
51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
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subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1)."
(b) In Leases, the following language shall appear:
"(1) The lessee herein covenants by and for the lessee and lessee's heirs,
personal representatives and assigns, and all persons claiming under the
lessee or through the lessee, that this lease is made subject to the condition
that there shall be no discrimination against or segregation of any person or of
a group of persons on account of race, color, creed, religion, sex, sexual
orientation, marital status, national origin, ancestry or disability in the leasing,
subleasing, transferring, use, occupancy, tenure or enjoyment of the property
herein leased nor shall the lessee or any person claiming under or through the
lessee establish or permit any such practice or practices of discrimination of
segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants, or vendees in the
property herein leased.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status,
nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4,
51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1)."
(c) In Contracts relating to use or occupancy of the Property or the Improvements,
the following language shall appear:
"There shall be no discrimination against or segregation of any person or group
of persons on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections
12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of
Section 12955, and Section 12955.2 of the Government Code, in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property
nor shall the transferee or any person claiming under or through the transferee
establish or permit any such practice or practices of discrimination or
segregation with reference to selection, location, number, use or occupancy of
tenants, lessee, subtenants, sublessees or vendees of the land."
5. Restrictions on Transfer. The Grantee covenants and agrees that the Property and
Improvements will be used for the purposes of timely development of transitional and
affordable housing and certain service facilities and other non -housing purposes related to
and in support of transitional and affordable housing, all as set forth in the Agreement and
not for speculation in landholding. The Grantee further recognizes that Grantor entered into
the Agreement, and agreed to convey the Property to Grantee in reliance on the
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qualifications and identity of Grantee, and that the qualifications of Grantee are of particular
concern to Grantor, particularly in view of the importance of the construction of the
Improvements to the general welfare of the community, the assistance provided by Grantor
to facilitate development of the Improvements, and the reliance by Grantor upon the unique
qualifications and ability of the Grantee to develop, operate and manage the Property as a
transitional and affordable housing development. Grantee covenants, for itself and its
successors and assigns, that there shall be no sale, transfer, assignment, conveyance,
lease, pledge or encumbrance of the Agreement or the Property and the Improvements
thereon or any part thereof, or of any ownership interest in the Grantee (collectively,
"Transfer") in violation of the Agreement.
6. Duration of Covenants. The covenants contained in Section 2 regarding construction
shall remain in effect until the issuance of a Certificate of Completion pursuant to the
Agreement. The covenants against discrimination contained in Section 4 shall remain in
effect in perpetuity. The covenants against prohibited sales, transfers, assignments,
conveyances, leases, pledges and encumbrances contained in Section 5 shall remain in
effect throughout the term of the Regulatory Agreement.
7. Mortgagee Protection. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Grant Deed shall defeat or render
invalid or in any way impair the lien or charge of any mortgage, deed of trust or other
financing or security instrument permitted by the Agreement; provided, however, that any
successor of Grantee to the Property and Improvements shall be bound by such remaining
covenants, conditions, restrictions, limitations and provisions, whether such successor's title
was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
8. Binding on Successors. The covenants contained in Sections 2, 4, and 5 of this
Grant Deed, without regard to technical or legal classification or designation specified in this
Grant Deed or otherwise, shall to the fullest extent permitted by law and equity, be binding
upon Grantee and any successor in interest to the Property and Improvements or any part
thereof, for the benefit of Grantor, and its successors and assigns, and such covenants shall
run in favor of and be enforceable by the Grantor and its successors and assigns for the
entire period during which such covenants shall be in force and effect, without regard to
whether the Grantor is or remains an owner of any land or interest therein to which such
covenants relate. In the event of any breach of any of such covenants, the Grantor and its
successors and assigns shall have the right to exercise all rights and remedies available
under law or in equity to enforce the curing of such breach.
9. Power of Termination. Subject to and in accordance with the procedures and
provisions of Section 8.8 of the Agreement, the Grantor has the right, at its option, to re-
enter and take possession of the Property, or portion thereof, with all Improvements thereon,
and revest in the Grantor the estate conveyed to the Grantee, in the event of a default
arising under Section 8.8 of the Agreement.
10. Option to Repurchase. Subject to and in accordance with the procedures and
provisions of Section 8.9 of the Agreement, the Grantor has the right, at its option, to
purchase and take possession of the Property, or portion thereof, with all Improvements
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thereon, and revest in the Grantor the estate conveyed to the Grantee, in the event of a
default arising under Section 8.9 of the Agreement.
The Grantor shall have the right to institute such actions or proceedings as it may
deem desirable to effectuate the purposes of Sections 9 and 10 hereof. Any delay by the
Grantor in instituting or prosecuting any such actions or proceedings or otherwise asserting
its rights hereunder shall not operate as a waiver of or limitation on such rights, nor operate
to deprive Grantor of such rights, nor shall any waiver made by the Grantor with respect to
any specific default by the Grantee, its successors and assigns, be considered or treated as
a waiver of Grantor's rights with respect to any other default by the Grantee, its successors
and assigns, or with respect to the particular default except to the extent specifically waived.
11. Amendments. Only the Grantor, its successors and assigns, and the Grantee and the
successors and assigns of the Grantee in and to all or any part of the fee title to the Property
and Improvements shall have the right to consent and agree to changes or to eliminate in
whole or in part any of the covenants contained in this Grant Deed. For purposes of this
Section, successors and assigns of the Grantee shall be defined to include only those
parties who hold all or any part of the Property and Improvements in fee title, and shall not
include a tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under
deed of trust, or any other person or entity having an interest less than a fee in the Property
and Improvements.
12. Conflict Among Documents. In the event there is a conflict between the provisions of
this Grant Deed and the Agreement, it is the intent of the parties that the Agreement shall
control.
13. Grantee's Acknowledgement. By its execution of this Grant Deed, Grantee has
acknowledged and accepted the provisions hereof.
14. Counterparts. This Grant Deed may be executed in counterparts, each of which shall
be an original and all of which taken together shall constitute one and the same instrument.
SIGNATURES ON FOLLOWING PAGES.
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IN WITNESS WHEREOF, Grantor and Grantee have executed this Grant Deed as of
, 20_
GRANTOR:
City of Santa Clarita, a municipal corporation
By:
Print Name-
Title-
ATTEST -
City Clerk
APPROVED AS TO FORM:
City Attorney
GRANTEE:
Family Promise of Santa Clarita Valley,
a California not for profit public benefit corporation
IA
Its:
SIGNATURES MUST BE NOTARIZED.
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
) ss
County of Los Angeles )
On _ before
(Name of Notary)
notary public, personally appeared who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
) ss
County of Los Angeles )
On before me,
(Name of Notary)
notary public, personally appeared who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
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MT117[iG1
PROPERTY
All that certain real property situated in the County of Los Angeles, State of California, describec
as follows:
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described as
follows: LOT 52 OF TRACT NO. 2703, IN THE CITY OF SANTA CLARITA, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28, PAGE(S)
20 TO 26 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THEREFROM THE SOUTHWESTERLY 20 FEET AS GRANTED TO THE STATE OF
CALIFORNIA PER THE DOCUMENT RECORDED JANUARY 21, 1975 AS INSTRUMENT NO
239, OFFICIAL RECORDS, IN SAID COUNTY RECORDERS OFFICE.
APN: 2833-016-037
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RESOLUTION NO. 20-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA,
CALIFORNIA, APPROVING A DISPOSITION AND DEVELOPMENT
AGREEMENT, AN AFFORDABLE HOUSING REGULATORY AGREEMENT,
AND A GRANT DEED AND ADOPTING FINDINGS PURSUANT TO
GOVERNMENT CODE SECTIONS 52201, 54221, AND 37364 AND
DETERMINING THE PROJECT IS EXEMPT FROM CEQA
WHEREAS, Family Promise of Santa Clarita Valley is a local organization with
experience providing transitional housing and support services for families and children
experiencing homelessness. Family Promise has been searching for permanent space to
administer their program with onsite, stable housing for their clients. Family Promise has
received a commitment from HomeAid Los Angeles to provide 50% of the construction costs
and support identifying additional grants to support this development. Williams Homes, a local
developer, has committed to be the Project Builder for the development and to donate in -kind
services for architecture, design, and project management.
WHEREAS, the City of Santa Clarita developed a Community Plan to Address
Homelessness in 2018. One of the goals in the Community Plan to Address Homelessness is to
acquire land for a Family Promise Resource Center and supportive housing development.
Shortly after the Community Plan to Address Homelessness was developed, the City was
awarded a $300,000 grant to assist with this goal. The $300,000 grant is set to expire on
December 31, 2021.
WHEREAS, the City identified 23652 Newhall Avenue (the "Property") as a feasible
location for the Family Promise Resource Center and supportive housing development, which
would include 4 affordable housing units and administrative office space for homeless clients.
WHEREAS, the parties have negotiated a Disposition and Development Agreement, an
Affordable Housing Regulatory Agreement, and a Grant Deed (the "Agreements") to transfer
ownership of the property located at 23652 Newhall from the City of Santa Clarita to Family
Promise SCV.
NOW, THEREFORE, the City Council of the City of Santa Clarita, California, does
hereby resolve as follows:
SECTION 1. Recitals Correct. The City Council finds that the above Recitals are true
and correct and have served, together with the Agreements, as the basis for the findings and
approvals set forth below.
SECTION 2. Government Code Section 52201. In accordance with California
Government Code Section 52201, the City Council hereby finds and determines, based upon
substantial evidence provided in the record before it, that the City has received adequate
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consideration given the City's interest in developing affordable housing and the limitations
imposed on the Property. The consideration is not less than the fair reuse value at the use and
with the covenants and conditions and development costs associated with the project, as detailed
in the report prepared pursuant to Government Code Section 52201. In addition, the City
Council finds that it is authorized to dispose of the Property pursuant to Government Code
Sections 37364 and 54221.
SECTION 3. Surplus Lands Act. The City Council hereby finds that pursuant to
Government Code Section 54221(f)(1)(J), the Property is not "surplus land" subject to the
Surplus Lands Act as currently in effect, because the Property will be developed for the City's
use as identified in the Community Plan to Address Homelessness, specifically with affordable
housing and a resource center. In addition, pursuant to Government Code Section 54221
(f)(1)(A), the land is transferred pursuant to Government Code Section 37364.
SECTION 4. Government Code Section 37364. The City Council hereby finds that,
pursuant to Government Code section 37364 (b) not less than 80 percent of the area of the
Property will be used for the development of and provision of services to affordable housing. It
is therefore in the City's best interest to convey the real property to Family Promise at less than
fair market value as allowed by Government Code sections 37364 and 54226.
SECTION 5. Approval of Agreements; Execution of Documents. The City Council
hereby approves the Disposition and Development Agreement, Affordable Housing Regulatory
Agreement, and Grant Deed to transfer ownership of the property located at 23652 Newhall
Avenue from the City of Santa Clarita to Family Promise of Santa Clarita Valley. The City
Manager is authorized to execute each of the Agreements on behalf of the City of Santa Clarita.
SECTION 6. CEQA Exemptions. The project is exempt from review under the
California Environmental Quality Act (CEQA) as it meets the threshold requirements for
exemptions for affordable housing and residential in -fill projects as set forth in CEQA guidelines
section 15192, and further qualifies for exemption under section 15194 as an affordable housing
project, and section 15332 as an in -fill project of less than six units that also includes affordable
housing. City staff is directed to file a notice of exemption for the project as required by the
CEQA guidelines.
SECTION 7. Further Actions and Documents. The City Manager or designee is
authorized to take all actions and execute all documents on behalf of the City necessary to
effectuate the purpose of this Resolution and the Agreements.
SECTION 8. Effective Date. This resolution shall become effective immediately upon
its passage and adoption.
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PASSED, APPROVED, AND ADOPTED this loth day of November, 2020
MAYOR
ATTEST:
CITY CLERK
DATE:
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF SANTA CLARITA )
I, Mary Cusick, City Clerk of the City of Santa Clarita, do hereby certify that the foregoing
Resolution No. 20- was duly adopted by the City Council of the City of Santa Clarita at a
regular meeting thereof, held on the I01h day of November 2020, by the following vote:
AYES: COUNCIL,MEMBERS:
NOES: COUNCIL,MEMBERS:
ABSENT: COUNCIL,MEMBERS:
CITY CLERK
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ECONOMIC OPPORTUNITY
SUBSIDY REPORT
23652 Newhall Avenue, Santa Clarita, CA
Government Code Section 52201 Report
Property Description
The property known as 23652 Newhall Avenue, Santa Clarita, CA (Property) is Assessor's Parcel
Number 2833-016-901. The lot is 32,230 square feet in size and is currently an undeveloped,
vacant parcel.
Sale Agreement
The Disposition and Development Agreement (DDA) between the City of Santa Clarita (City) and
Family Promise SCV, a local nonprofit organization, is attached to this report. Laurie Ender is the
active member of the Board of Family Promise SCV tasked with execution of this property
transfer.
Cost of the Agreement
The cost of the agreement to the City includes the land acquisition. There are no loans or bonds
included in this agreement. The property was originally acquired by the City's Housing
Successor Agency in December of 2010 for $731,372. The property was acquired using a
combination of Redevelopment Agency (RDA) Bond Proceeds ($438,249) and Community
Development Block Grant (CDBG) funds ($239,123).
In 2011 the ownership of this parcel was moved from the RDA as a separate agency to the City
as the Housing Successor to the RDA.
In 2015, as approved by the City and Department of Housing and Urban Development (HUD),
the CDBG funds used in this acquisition were reallocated and replaced with additional RDA
Bond Proceeds. Therefore, all funds tied to this parcel are RDA Bond Proceeds totaling
$731,372.
Estimated Value of the Interest to be Conveyed Determined at the Highest and Best Use
Permitted Under the General Plan/Zoning
The Property is designated "Community Commercial Zone" as defined in the City's Unified
Development Code (UDC):
17.34.010 Community Commercial (CC) Zone.
The community commercial (CC) zoning designation is intended for business providing
retail and service uses that primarily serve the local market. Representative uses include
restaurants, clothing stores, hardware and auto parts stores, grocery markets,
pharmacies, banks and financial services, specialty retail, theaters and nightclubs, day
care centers, and medical services. These areas are typically located along arterial
streets or at the intersections of high traffic corridors. Multiple family dwellings
(including live/work units) may be permitted in this zone.
The parcel was originally purchased with the intent to develop a larger Three Oaks project;
however, additional parcels adjacent to the Three Oaks development were unable to be
acquired and ultimately only one phase of Three Oaks was constructed and completed in 2017.
According to HUD, the Bond Proceeds utilized to purchase the parcel are intended to be used to
create affordable housing. Family Promise SCV's proposed site plan of four (4) units of
affordable housing with onsite facilities for program services and administrative office related
to and in support of transitional and affordable housing is within the scope of intended uses for
these funds. In addition, this proposed project includes office space for Family Promise SCV to
provide services (i.e. case management, job preparation, referrals, etc.) to hundreds of other
clients each year.
The Property had been appraised in February 2020 at $1,612,000. The land continues to have
minimal value to the community "as is," with no other interest generated from other
stakeholders since the acquisition.
Estimated Value of the Interest to be Conveyed Determined at the Use and with the
Conditions, Covenants, and Development Costs required by the Sale
The recent appraisal was completed without the consideration of the significant conditions
placed on this parcel required by the funding used to originally purchase the Property. The
Property was acquired with funding which restricts the future use of this parcel exclusively for
transitional or affordable housing. This type of development generates zero to subsidized
monthly rent payments from tenants. Therefore, the estimated value of this property becomes
significantly lower if not completely invaluable for most uses without other leveraged assets.
The transfer of this property at no cost to Family Promise SCV leverages development costs
from three other agencies that have committed to developing this project. This includes fifty
percent (50%) of the construction costs from Home Aid (roughly estimated at $400,000), in -kind
architecture, design and construction services by Williams Homes (roughly estimated at
$100,000), and a $300,000 Measure H Grant received by the City from the County of Los
Angeles specifically for this proposed project identified in the Community Plan to Address
Homelessness. In total, the leveraged assets by this transfer is $800,000.
In addition to these leveraged assets, this project increases the supply of transitional housing in
the community and provides office space for other services to individuals and families
experiencing homelessness.
Why the Transfer of the Property Will Assist in the Creation of Economic Opportunity
The DDA between the City and Family Promise SCV contemplates the transfer of a vacant parcel
located at 23652 Newhall Avenue in the City of Santa Clarita, California. The Property is located
on a main thoroughfare and primary entrance to the community, surrounded by a new
affordable housing project, Three Oaks, and other mixed -use developments. Sitting vacant for
decades, this parcel is currently aesthetically displeasing and generates no benefit to the
community. Furthermore, the Property is located within one mile of Old Town Newhall. In the
last decade, the City, and community, have invested significant capital toward revitalization of
this area and stimulating significant economic opportunity.
The transfer of the Property will have a positive supporting economic impact on the community
in the City of Santa Clarita by adding to the revitalizing efforts centered around Old Town
Newhall and improve the aesthetics of a major thoroughfare traveled by thousands of drivers
daily. This project will be transferred to a well-known and respected local nonprofit service
provider affiliated with a national organization, Family Promise, with over 200 affiliates
nationwide.
The planned construction of the proposed project on the Property will be done by an
experienced local developer with support from an international organization, HomeAid Los
Angeles, an affiliate of HomeAid America, to create a high -quality facility on this currently
vacant parcel.
It is for the reasons identified above that the transfer of this Property will generate a unique
economic opportunity in the City of Santa Clarita.
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city of
SANTA CLARITA
23920 Valencia Boulevard • Santa Clarita, California 91355-2196
Phone: (661) 259-2489 o FAX: (661) 259-8125
www.santa-clarita, com
CITY OF SANTA CLARITA
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the City Council of the City of Santa Clarita will conduct a
public hearing on Tuesday, November 10, 2020, at 6:00 p.m. or as soon thereafter as the matter
may be heard, in the Santa Clarita City Hall Council Chambers, located at 23920 Valencia Blvd,
Santa Clarita, CA 91355, which public hearing will not be open for physical attendance by the
public, but the public may participate through the Zoom meeting information as listed on the
posted agenda.
Proponents, opponents, and any interested persons may be heard on this matter at that time.
Further information may be obtained by contacting the City Manager's Office, 23920 Valencia
Boulevard, Suite 300, Santa Clarita, CA, 91355; (661) 255-4921, Jerrid McKenna, Assistant to
the City Manager.
At the hearing, the Santa Clarita City Council will consider a report prepared pursuant to
Govermnent Code Section 52201, concerning the transfer of a 32,230 square foot parcel located
at 23652 Newhall Avenue for the purposes of an affordable housing/transitional housing project.
The Council will also consider approval of the transfer of the property and a Disposition and
Development Agreement ("DDA") with Family Promise SCV for the construction of a 4 unit
housing project on the site, with accompanying administrative building for the provision of
homeless services. The DDA contemplates development of the land by the developer from
private and other funds as well as a Measure H grant.
A copy of the report and the proposed DDA are available for inspection and copying in the office
of the City Clerk, 23920 Valencia Blvd., Santa Clarita, CA 91355 between the hours of 8 a.m.
and 5 p.m. Monday through Friday, or online at.https://www.santa-
ciarita.com/Home/ShowDocument?id=18818 (52201 Report) and https://www.santa-
clarita.com/Home/ShowDocument?id=18820 (DDA).
Any person interested in these matters is invited to attend and present testimony either for or
against the above item. If you challenge the proposed action in court, you may be limited to
raising only those issues you or someone else raised at the public hearing described in this notice
or in written correspondence delivered to the City Council at or prior to the public hearing.
Dated October 22, 2020
Mary Cusick, MMC
City Clerk
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA CLARITA
and
FAMILY PROMISE OF SANTA CLARITA VALLEY
2020
SF #4815-4977-2744 v5
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement") is
entered into effective as of , 2020 ("Effective Date") by and between the City of
Santa Clarita, a California municipal corporation ("City") and Family Promise of Santa Clarita
Valley, a California not for profit public benefit corporation ("Developer"). The City and the
Developer are collectively referred to herein as the "Parties."
RECITALS
A. The City is the owner of the real property located at 23652 Newhall Avenue, in
the City of Santa Clarita, known as Los Angeles County Assessor's Parcel No. 2833-016-037,
and more particularly described in Exhibit A attached hereto (the "Property").
B. Developer has proposed the development of a transitional and affordable housing
development on the Property consisting of 4 apartments that will be transitional or affordable to
low-income households (the "Project").
C. As set forth in Resolution adopted on 20 , the City
Council has determined that the Project qualifies for exemption from review under the California
Environmental Quality Act ("CEQA").
D. Upon satisfaction of the conditions precedent set forth in this Agreement and
subject to the terms and conditions set forth herein, the City will convey the Property to
Developer for development of the Project.
E. Concurrently with the conveyance of the Property to Developer, among other
documents, Developer will execute an Affordable Housing Regulatory Agreement and
Declaration of Restrictive Covenants that will require rents for the residential units to be used for
transitional housing or as affordable housing to low-income households in perpetuity.
F. A material inducement to City to enter into this Agreement is the agreement by
Developer to develop the Project within the time periods specified herein and in accordance with
the provisions hereof, and the City would be unwilling to enter into this Agreement in the
absence of an enforceable commitment by Developer to take such actions and complete such
work in accordance with such provisions and within such time periods.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows.
ARTICLE I
DEFINITIONS; EXHIBITS
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1.1 Definitions. The following terms shall have the meanings set forth below
whenever used in this Agreement and the Exhibits attached hereto. Additional terms are defined
in the Recitals and text of this Agreement.
"Affordable Rent" is defined in the Regulatory Agreement.
"Applicable Laws" is defined in Section 4.8.
"Area Median Income" is defined in the Regulatory Agreement.
"Authorized Representative" means the City Manager of the City of
Santa Clarita, or his or her designee.
"City" means the City of Santa Clarita, California, a municipal
corporation.
"City Council" means the City Council of the City of Santa Clarita,
California.
"City Documents" means collectively, this Agreement, the Regulatory
Agreement and the Grant Deed.
"Closing Date" or "Close of Escrow" shall be the date that escrow closes
for the conveyance of the Property to Developer.
"Conditions of Approval" is defined in Section 4.4.
"Developer" means Family Promise of Santa Clarita Valley, a California
not for profit public benefit corporation, identified with the California Secretary
of State as Corporation No. C3223875.
"Developer's Permitted Exceptions" is defined in Section 3.1.
"Environmental Laws" is defined in Section 5.8.2.
"Escrow Agent" is defined in Section 3.2.
"Force Majeure" is defined in Section 10.2.
"Grant Deed" is defined in Section 3.1.
"Hazardous Material" is defined in Section 5.8.1.
"Improvements" means the improvements located or to be located on the
Property including without limitation, the residential dwelling units to be
constructed pursuant to this Agreement.
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"Indemnitees" is defined in Section 4.8.
"Official Records" means the Official Records of Los Angeles County.
"Owner's Title Policy" is defined in Section 3.6.
"Project" is defined in Recital B.
"Property" is defined in Recital A and described in Exhibit A.
"Regulatory Agreement" is defined in Section 3.5.
"Repurchase Option" is defined in Section 8.9.
"Title Company" is defined in Section 3.2.
"Title Report" is defined in Section 3.1.
"Transfer" is defined in Section 6.2.
1.2 Exhibits. The following Exhibits are attached hereto and incorporated into this
Agreement by this reference:
A Legal Description of the Property
B Form of Regulatory Agreement
C Form of Grant Deed
ARTICLE II
REPRESENTATIONS; EFFECTIVE DATE; PROJECT SCOPE; FINANCING PLAN
2.1 Representations
2.1.1 Developer's Representations. Developer covenants that until the
expiration or earlier termination of this Agreement, upon learning of any fact or condition which
would cause any of the warranties and representations in this Section 2.1.1 to be untrue,
Developer shall immediately give written notice of such fact or condition to City. Developer
acknowledges that City shall rely upon Developer's representations made herein notwithstanding
any investigation made by or on behalf of City. Developer hereby represents, warrants, and
covenants that the following are true and correct as of the Effective Date, and shall be true and
correct as of the Closing Date.
(a) Organization. Developer is a not for profit public benefit corporation,
duly organized and in good standing under the laws of the State of California and tax-exempt
under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
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(b) Authority of Developer. Developer has full power and authority to
execute and deliver this Agreement and all other documents or instruments executed and
delivered by Developer, or to be executed and delivered by Developer pursuant to or in
connection with this Agreement, and to perform and observe the terms and provisions of all of
the foregoing.
(c) Authority of Persons Executing Documents. This Agreement and all other
documents or instruments executed and delivered by Developer, or to be executed and delivered
by Developer pursuant to or in connection with to this Agreement, have been executed and
delivered, or will be executed and delivered, by persons who are duly authorized to execute and
deliver the same for and on behalf of Developer, and all actions required under Developer's
organizational documents and applicable governing law for the authorization, execution, delivery
and performance of this Agreement and all other documents or instruments executed and
delivered by Developer, or to be executed and delivered by Developer pursuant to or in
connection with this Agreement, have been duly taken or will have been duly taken (to the extent
such actions are required) as of the date of execution and delivery of such documents.
(d) Valid and Binding Agreements. This Agreement and all other documents
or instruments which have been executed and delivered by Developer or will be executed and
delivered by Developer pursuant to or in connection with this Agreement constitute or, if not yet
executed or delivered, will when so executed and delivered, constitute, legal, valid and binding
obligations of Developer, enforceable in accordance with their respective terms, subject to laws
affecting creditors' rights and principles of equity.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of
this Agreement or any other documents or instruments executed and delivered by Developer, or
to be executed or delivered by Developer pursuant to or in connection with this Agreement, nor
the performance of any provision, condition, covenant or other term hereof or thereof, will
conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or
order of any court, board, commission or agency binding on Developer, or any provision of the
organizational documents of Developer, or will conflict with or constitute a breach of or a default
under any agreement to which Developer is a party, or will result in the creation or imposition of
any lien upon any assets or property of Developer, other than liens established pursuant hereto.
(f) Pending Proceedings. Except as disclosed in writing to the City prior to
execution of this Agreement, Developer is not in default under any law or regulation or under
any order of any court, board, commission or agency whatsoever, and, to the best of its
knowledge, there are no claims, actions, suits or proceedings pending or, to the knowledge of
Developer, threatened against or affecting Developer or the Property, at law or in equity, before
or by any court, board, commission or agency. Developer is not the subject of a bankruptcy or
insolvency proceeding.
2.1.2 City's Representations. City covenants that until the expiration or earlier
termination of this Agreement, upon learning of any fact or condition which would cause any of
the warranties and representations in this Section 2.1.2 to be untrue, City shall immediately give
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written notice of such fact or condition to Developer. City acknowledges that Developer shall
rely upon City's representations made herein notwithstanding any investigation made by or on
behalf of Developer. City hereby represents, warrants, and covenants that the following are true
and correct as of the Effective Date and shall be true and correct as of the Closing Date.
(a) Authority of City. City has full power and authority to execute and deliver
this Agreement and all other documents or instruments executed and delivered by City, or to be
executed and delivered by City pursuant to or in connection with this Agreement, and to perform
and observe the terms and provisions of all of the foregoing.
(b) Valid and Binding Agreements. This Agreement and all other documents
or instruments which have been executed and delivered by City or will be executed and delivered
by City pursuant to or in connection with this Agreement constitute or, if not yet executed or
delivered, will when so executed and delivered, constitute, legal, valid and binding obligations of
City, enforceable in accordance with their respective terms, subject to laws affecting creditors'
rights and principles of equity.
(c) Pending Proceedings. No litigation or other proceeding (whether
administrative or otherwise) is outstanding or has been threatened which would prevent, hinder
or delay the ability of the City to perform its obligations under this Agreement.
2.2 Effective Date. The obligations of Developer and City hereunder shall be
effective as of the Effective Date which date is set forth in the preamble to this Agreement.
2.3 Project Scope. The Project will include construction of four (4) transitional or
affordable housing units on the Property, and a separate structure to house facilities for program
services and administrative office related to and in support of transitional and affordable housing.
All of the residential units will be subject to affordability and occupancy restrictions in
accordance with the Regulatory Agreement.
2.4 Design Review; Conditions of Approval; Environmental Review. Developer will
submit design documents for the Project including a site plan, elevations, and schematic
drawings for review and approval by the City Planning Commission and/or City Council, as
applicable. The design documents shall be consistent with the conceptual plans that Developer
previously submitted to City in Developer's response to City's Request for Proposals except as
otherwise approved by the City. If the City does not approve any submittal, Developer shall
submit revised design documents that address the City's objections. Developer agrees that it
shall construct the Project in accordance with the approved design documents except as
otherwise approved by the City.
The City Council has determined that as proposed, the Project qualifies for exemption
from CEQA review pursuant to CEQA Guidelines Section 15194 pertaining to affordable
housing projects. In the event that the proposed Project is modified or other circumstances arise
that would affect the Project's eligibility for exemption from CEQA review, prior to submitting
an application for land use approvals for the Project, Developer shall cause to be performed any
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additional environmental studies required by the City in connection with environmental review
of the Project in accordance with CEQA. If additional environmental review is required under
CEQA, Developer acknowledges that such review may involve preparation and consideration of
additional information, as well as consideration of input from interested organizations and
individuals, and Developer acknowledges that nothing in this Agreement is intended to, or shall
be interpreted as a City commitment to approve a project or program prior to completion of any
required CEQA review. In addition, Developer acknowledges that any required approvals by
any other local, state or federal agency may require additional environmental review, and that
any approval by the City shall not bind any other local, state or federal agency to approve the
Project or to impose mitigation measures that are consistent with the terms of this Agreement or
with the terms of any mitigation measures required by the City pursuant to the City's
environmental review. Prior to the Close of Escrow, Developer shall have the right to terminate
this Agreement by delivery of written notice to City if the City disapproves the Project following
completion of the environmental review process or Developer determines that implementation of
any required environmental mitigation measures would cause development of the Project to
become economically infeasible.
ARTICLE III
DISPOSITION OF THE PROPERTY; CONDITIONS
PRECEDENT TO CLOSING
3.1 Purchase and Sale of Property; Review of Title. Developer acknowledges receipt
of a preliminary title report for the Property issued by First American Title Company and dated
September 22, 2010 (the "Title Report"). Provided that all conditions precedent set forth in
this Agreement have been satisfied or waived, City shall convey to Developer, and Developer
shall purchase from City, the fee interest in the Property in accordance with and subject to the
terms, covenants and conditions of this Agreement, subject to: (a) the provisions and effects of
the City Documents, (b) applicable building and zoning laws and regulations, (c) any lien for
current taxes and assessments or taxes and assessments accruing for periods subsequent to
recordation of the Grant Deed, (d) exception numbers through as shown on the Title
Report, (e) liens and encumbrances created or permitted by Developer or Developer's affiliates,
employees or agents, and (f) such other conditions, liens, encumbrances, restrictions, easements
and exceptions as Developer may approve in writing, which approval shall not be unreasonably
withheld. All of the foregoing are collectively hereinafter referred to as "Developer's Permitted
Exceptions." Conveyance of the Property shall be effectuated by grant deed substantially in the
form attached hereto as Exhibit C (the "Grant Deed").
3.1.1 Supplemental Title Review. If any new or additional items appear of
record after the date of the Title Report, Developer shall obtain from the Title Company an
updated preliminary title report ("Supplemental Report"). Following receipt of the
Supplemental Report and documents pertaining to new exceptions appearing on the
Supplemental Report, Developer shall have five (5) business days to provide to City Developer's
written objections to the Supplemental Report. If Developer fails to provide written objections
within such period, Developer shall be deemed to have accepted the Supplemental Report and all
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new exceptions listed therein. If Developer provides written notice of objections to new
exceptions listed in the Supplemental Report, City shall have two (2) business days to notify
Developer of whether City will undertake to remove the exceptions to which Developer has
objected. If City fails to respond, City shall be deemed to have elected not to cure any of the
exceptions, and in such case, Developer may elect to proceed to Close of Escrow or terminate
this Agreement by written notice to City. Notwithstanding anything to the contrary in this
Section 3.1.1: (a) Developer shall be deemed to have accepted any new exceptions that pertain
to liens and encumbrances created or permitted by Developer or Developer's affiliates,
employees or agents, and (b) City shall take action to remove any new monetary liens affecting
title to the Property that are created or permitted by City.
3.2 Escrow. City and Developer shall open escrow with a mutually agreed upon title
company ("Escrow Agent" or "Title Company") in order to consummate the conveyance of the
Property to Developer and the closing of escrow for the transactions contemplated hereby.
3.3 Costs of Closing and Escrow; Legal Fees. Developer shall pay all title insurance
premiums for policies Developer elects to purchase in connection with the conveyance of the
Property and the financing of the Project, and Developer shall pay all recording fees, transfer
taxes, escrow fees and closing costs incurred in connection with the acquisition of the Property
and the financing of the Project. Developer shall pay for the cost of any lender's policy of title
insurance that City elects to acquire in connection with the transactions contemplated hereby.
Property taxes and assessments shall be prorated as of the Closing Date. City and Developer
shall provide Escrow Agent with a copy of this Agreement, which together with such
supplemental instructions as City or Developer may provide and which are consistent with the
intent of this Agreement or which are otherwise mutually agreed upon by City and Developer,
shall serve as escrow instructions for the Close of Escrow. At Close of Escrow, Developer shall
pay City's legal fees incurred in connection with the transactions contemplated by this
Agreement, including without limitation, the negotiation and preparation of this Agreement and
the City Documents, and review of other documents required in connection with the conveyance
of the Property, the financing of the Project, and the Close of Escrow, in a maximum aggregate
amount not to exceed Twenty -Five Thousand Dollars ($25,000).
3.4 Closing. The Closing Date shall be a date that is mutually acceptable to the
Parties and shall occur within thirty (30) days following the Developer's satisfaction or City's
waiver of all conditions precedent to conveyance of the Property as set forth in Sections 3.5 and
36. Prior to the Close of Escrow, Developer shall deposit into escrow the City Documents to
which Developer is a party, executed and acknowledged as applicable, and Developer's share of
closing costs. Provided that all conditions precedent to Close of Escrow have been satisfied or
waived, City shall deposit into escrow the executed Grant Deed and executed copies of the City
Documents to which City is a party. On the Closing Date, the Escrow Agent shall cause the
Grant Deed, the Deed of Trust and the Regulatory Agreement to be recorded in the Official
Records.
3.5 City's Conditions to Closing. City's obligation to convey the Property to
Developer is conditioned upon the satisfaction of the terms and conditions set forth in this
SF #4815-4977-2744 v5
Section 3.5, unless any such condition is waived in writing by the City acting in the discretion of
its Authorized Representative.
(a) No Default. There shall exist no condition, event or act which would
constitute a material breach or default under this Agreement or any other City Document, or
which, upon the giving of notice or the passage of time, or both, would constitute such a material
breach or default.
(b) Representations. All representations and warranties of Developer
contained herein or in any other City Document or certificate delivered in connection with the
transactions contemplated by this Agreement shall be true and correct in all material respects as
of the Close of Escrow.
(c) Due Authorization and Good Standing. Developer shall have delivered to
City copies of all of the following, including updated versions of any of the following that have
been amended or modified since the date of delivery to City pursuant to Section 4.7: (i) a
certificate of good standing, certified by the Secretary of State, indicating that Developer is
properly organized and authorized to do business in the State of California; (ii) copies of
Developer's articles of incorporation and bylaws, each certified by Developer's corporate
Secretary as accurate, complete, and in full force and effect; (iii) verification of Developer's tax-
exempt status; and (iv) a resolution certified by Developer's corporate Secretary authorizing
Developer's execution of and performance under this Agreement and the other City Documents.
(d) Execution, Delivery and Recordation of Documents. Developer shall have
executed, acknowledged as applicable, and delivered to City this Agreement, and all other
documents required in connection with the transactions contemplated hereby, including without
limitation an Affordable Housing Regulatory Agreement and Declaration of Restrictive
Covenants substantially in the form attached hereto as Exhibit B (the "Regulatory Agreement")
and a counter -signed original of the Grant Deed. Concurrently with the Close of Escrow, the
Grant Deed and the Regulatory Agreement shall be recorded in the Official Records.
3.6 Developer's Conditions to Closing. Developer's obligation to proceed with the
acquisition of the Property is subject to the satisfaction or Developer's waiver of the following
conditions:
(a) No Default. City shall not be in default under the terms of this
Agreement, and all representations and warranties of City contained herein shall be true and
correct in all material respects;
(b) Execution of Documents. City shall have executed and acknowledged the
Grant Deed, the Regulatory Agreement and all other City Documents to which the City is a
party, and shall have delivered such documents into escrow; and
(c) Owner's Title Policy. The Title Company shall, upon payment of the
premium therefor, be ready to issue an Owner's Title Insurance Policy for the benefit and
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protection of Developer ("Owner's Title Policy") showing title to the Property vested in
Developer, subject only to Developer's Permitted Exceptions and containing such endorsements
as Developer may reasonably require, with the cost of such Owner's Title Policy, including any
endorsements, to be paid by Developer.
3.7 No Obligation to Close Escrow Upon Default. Notwithstanding any other
provision of this Agreement, the City shall have no obligation to authorize the Close of Escrow
following:
(i) the failure of any of Developer's representations and warranties made in
this Agreement or in connection with this Agreement to be true and correct in all material
respects;
(ii) the termination of this Agreement; or
(iii) the occurrence of an Event of Default under any City Document which
remains uncured beyond any applicable cure period, or the existence of any condition, event or
act which upon the giving of notice or the passage of time or both would constitute an Event of
Default under any City Document.
ARTICLE IV
DEVELOPMENT AND USE OF THE PROPERTY
4.1 Development Schedule. Subject to Force Majeure and any extension permitted
pursuant to Section 10.2, Developer shall apply for building permits for the Project no later than
May 10, 2021, shall commence construction of the Project by not later than six (6) months
following issuance of the building permits, and shall diligently prosecute to completion the
construction of the Project to enable City to issue final certificates of occupancy for all
residential units in the Project within eighteen (18) months following commencement of
construction. Developer shall use diligent and commercially reasonable efforts to perform
Developer's obligations under this Agreement within the times periods set forth herein, and if no
such time is provided, within a reasonable time, designed to permit issuance of final certificates
of occupancy for all residential units in the Project by the date specified in this Section 4.1.
Subject to Force Majeure and the City's issuance of permits and approvals, Developer's failure
to commence or complete construction of the Project in accordance with the time periods
specified in this Section 4.1 shall be an Event of Developer Default hereunder.
4.2 Grant of $300,000 to Developer for Project; Cost of Conveyance and
Con sari cti on
(a) The City has received grant funds in the amount of Three Hundred
Thousand Dollars ($300,000) from the Los Angeles County Homeless Initiative for
implementation of the City's homeless plan (the "Measure H Funding"). At the Close
of Escrow, as long as all of the City's Conditions to Closing set forth in Section 3.7 have
been satisfied by Developer and all conditions for Measure H Funding for the City's
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homeless plan implementation have been met, the City shall award a grant in the amount
of the Measure H Funding to Developer for the Project to be used by Developer for the
Costs of Conveyance of the Property and Construction of the Project.
(b) Developer shall be solely responsible, in part with the use of Measure H
Funding, for all direct and indirect costs and expenses incurred in connection with the
conveyance of the Property, including without limitation appraisal fees, title reports and
any environmental assessments Developer elects to undertake. Except as expressly set
forth herein, all costs of designing, developing and constructing the Project and
compliance with the Conditions of Approval, including without limitation all off -site and
on -site improvements required by City in connection therewith, shall be borne solely by
Developer, in part with the use of Measure H Funding, and shall not be an obligation of
the City.
4.3 Permits and Approvals; Payment of Fees; Cooperation. Developer acknowledges
that the execution of this Agreement by the City does not constitute City approval for the
purpose of the issuance of building permits, does not relieve Developer from the obligation to
apply for and to obtain from the City and all other agencies with jurisdiction over the Property,
all necessary approvals, entitlements, and permits for the construction of the Project (including
without limitation the approval of architectural plans, and the approval of the Project in
compliance with CEQA and if applicable, NEPA), nor does it limit in any manner the discretion
of the City or any other agency in the approval process. Prior to the Close of Escrow for the
Project, Developer shall provide evidence satisfactory to City that receipt of all entitlements,
licenses and approvals required for the construction of the Project, including without limitation,
use permits, and is subject only to such conditions as City may reasonably approve. Developer
shall pay when due, in part with Measure H Funding, all customary and reasonable fees and
charges in connection with the processing of all applicable permits and approvals. Developer
shall not commence construction work on the Project prior to issuance of building permits
required for such work.
4.4 Conditions of Approval. Developer shall develop the Property in accordance
with the terms and conditions of this Agreement and in compliance with the terms and conditions
of all approvals, entitlements and permits that the City or any other governmental body or agency
with jurisdiction over the Project or the Property has granted or issued as of the date hereof or
may hereafter grant or issue in connection with development of the Project, including without
limitation, all mitigation measures imposed in connection with environmental review of the
Project and all conditions of approval imposed in connection with any entitlements, approvals or
permits (all of the foregoing approvals, entitlements, permits, mitigation measures and conditions
of approval are hereafter collectively referred to as the "Conditions of Approval').
4.5 Fees. Developer shall be solely responsible for, and shall promptly pay when due,
all customary and usual fees and charges of City and all other agencies with jurisdiction over
development of the Property in connection with obtaining building permits and other approvals
for the Project, including without limitation, those related to the processing and consideration of
amendments, if any, to the current entitlements, any related approvals and permits,
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environmental review, architectural review, historic review, and any subsequent approvals for
the Project.
4.6 Intentionally omitted.
4.7 Equal Opportunity. There shall be no discrimination on the basis of race, color,
religion, creed, sex, sexual orientation, marital status, ancestry or national origin in the hiring,
firing, promoting or demoting of any person engaged in construction work on the Property, and
Developer shall direct its contractors and subcontractors to refrain from discrimination on such
basis.
4.8 Compliance with Laws. Developer shall carry out and shall cause its contractors
and subcontractors to carry out the construction of the Project in conformity with all applicable
federal, state and local laws, rules, ordinances and regulations ("Applicable Laws"), including
without limitation, all applicable Environmental Laws, all applicable federal and state labor laws
and standards, Section 3 of the Housing and Community Development Act of 1974, as amended
(if applicable pursuant to financing sources used for the Project), applicable provisions of the
California Public Contracts Code, the City's zoning and development standards, building,
plumbing, mechanical and electrical codes, all other provisions of the City's 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 Section 51, et seq.. Developer shall indemnify, defend (with counsel approved by City) and
hold harmless the City and its elected and appointed officers, officials, employees, agents,
consultants and contractors (all of the foregoing, collectively, the "Indemnitees") from and
against any and all Claims arising in connection with the breach of Developer's obligations set
forth in this Section whether or not any insurance policies shall have been determined to be
applicable to any such Claims. It is further agreed that City does not and shall not waive any
rights against Developer which it may have by reason of this indemnity and hold harmless
agreement because of the acceptance by City, or Developer's deposit with City of any of the
insurance policies described in this Agreement. Developer's indemnification obligations set
forth in this Section shall not apply to Claims to the extent arising from the gross negligence or
willful misconduct of the Indemnitees. Developer's defense and indemnification obligations set
forth in this Section 4.8 shall survive the expiration or earlier termination of this Agreement.
4.9 Liens and Stop Notices. Until the expiration of the term of the Regulatory
Agreement, Developer shall not allow to be placed on the Property or any part thereof any lien or
stop notice on account of materials supplied to or labor performed on behalf of Developer. If a
claim of a lien or stop notice is given or recorded affecting the Project or the Property or any part
thereof, Developer shall within twenty (20) days of such recording or service: (a) pay and
discharge (or cause to be paid and discharged) the same; or (b) effect the release thereof by
recording and delivering (or causing to be recorded and delivered) to the party entitled thereto a
surety bond in sufficient form and amount; or (c) provide other assurance satisfactory to City that
the claim of lien or stop notice will be paid or discharged.
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4.10 Right of City to Satisfy Liens on the Property. If Developer fails to satisfy or
discharge any lien or stop notice on the Property or any part thereof pursuant to and within the
time period set forth in Section 4.9 above, the City shall have the right upon delivery of five (5)
days' written notice to Developer, but not the obligation, to satisfy any such liens or stop notices
at Developer's expense. In such event Developer shall be liable for and shall immediately
reimburse City for such paid lien or stop notice. Alternatively, the City may require Developer
to immediately deposit with City the amount necessary to satisfy such lien or claim pending
resolution thereof. The City may use such deposit to satisfy any claim or lien that is adversely
determined against Developer. Developer shall file a valid notice of cessation or notice of
completion upon cessation of construction work on the Property for a continuous period of thirty
(30) days or more, and shall take all other reasonable steps to forestall the assertion of claims or
liens against the Property. The City may (but has no obligation to) record any notices of
completion or cessation of labor, or any other notice that the City deems necessary or desirable
to protect its interest in the Property.
4.11 Performance and Payment Bonds. Prior to commencement of construction work
on the Project, Developer shall cause its general contractor to deliver to the City copies of
payment bond(s) and performance bond(s) issued by a reputable insurance company licensed to
do business in California, each in a penal sum of not less than one hundred percent (100%) of the
scheduled cost of construction of such Project component. The bonds shall name the City as co -
obligee.
4.12 Insurance Requirements. Developer shall maintain and shall cause its contractors
to maintain all applicable insurance coverage specified in Article X.
4.13 Affordable Housing. Developer covenants and agrees for itself, its successors
and assigns that the Property will be subject to recorded covenants that will restrict use of the
Property to operation of a transitional housing and affordable residential development in
perpetuity, commencing upon the issuance of the final certificate of occupancy, for the Project
all of the residential units in the Project shall be occupied or available for occupancy for
transitional housing or at Affordable Rents to households whose income is no greater than eighty
percent (80%) of Area Median Income; provided however, Developer shall comply with the rent
and occupancy restrictions imposed by all applicable financing sources and regulatory agencies
if such agencies impose requirements on the Project that are more stringent than those set forth in
this Agreement.
4.14 Maintenance. Commencing upon Developer's acquisition of the Property,
Developer shall at its own expense, maintain the Property and the Improvements, including the
landscaping and common areas, in good physical condition, in good repair, and in decent, safe,
sanitary, habitable and tenantable living conditions in conformity with all Applicable Laws.
Without limiting the foregoing, Developer agrees to maintain the Property and the Improvements
(including without limitation, landscaping, driveways, parking areas, and walkways) in a
condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair,
abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent
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the same from occurring on the Property. Developer shall prevent and/or rectify any physical
deterioration of the Improvements and shall make all repairs, renewals and replacements
necessary to keep the Property and the Improvements in good condition and repair.
4.15 Taxes and Assessments. Commencing upon Developer's acquisition of the
Property, Developer shall pay all real and personal property taxes, assessments and charges and
all franchise, income, payroll, withholding, sales, and other taxes assessed against the Property
and/or the Improvements, at such times and in such manner as to prevent any penalty from
accruing, or any lien or charge from attaching to the Property or Improvements; provided,
however, Developer shall have the right to contest in good faith, any such taxes, assessments, or
charges. In the event the Developer exercises its right to contest any tax, assessment, or charge,
the Developer, on final determination of the proceeding or contest, shall immediately pay or
discharge any decision or judgment rendered against it, together with all costs, charges and
interest.
4.16 Obligation to Refrain from Discrimination. Developer shall not restrict the rental,
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or the Project,
or any portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation,
disability, marital status, ancestry, or national origin of any person. Developer covenants for
itself and all persons claiming under or through it, and this Agreement is made and accepted
upon and subject to the condition that there shall be no discrimination against or segregation of
any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of
the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the Property or the Improvements, or part thereof, nor shall Developer or any person claiming
under or through Developer 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, of, or for the Property or Improvements, or part
thereof. Developer shall include such provision in all deeds, leases, contracts and other
instruments executed by Developer, and shall enforce the same diligently and in good faith.
All deeds, leases or contracts made or entered into by Developer, its successors or
assigns, as to any portion of the Property or the Improvements shall contain the following
language:
(a) In Deeds, the following language shall appear:
"(1) Grantee herein covenants by and for itself, its successors and assigns, and all
persons claiming under or through it, that there shall be no discrimination against
or segregation of a person or of a group of persons on account of any basis listed
in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
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property herein conveyed nor shall the grantee or any person claiming under or
through the grantee 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
property herein conveyed. The foregoing covenant shall run with the land.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
5 1. 11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1)."
(b) In Leases, the following language shall appear:
"(1) The lessee herein covenants by and for the lessee and lessee's heirs, personal
representatives and assigns, and all persons claiming under the lessee or through
the lessee, that this lease is made subject to the condition that there shall be no
discrimination against or segregation of any person or of a group of persons on
account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin, ancestry or disability in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the property herein leased nor shall the lessee
or any person claiming under or through the lessee establish or permit any such
practice or practices of discrimination of segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the property herein leased.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1)
shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(c) In Contracts pertaining to operation or management of the Project, the following
language shall appear:
"There shall be no discrimination against or segregation of any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the property nor shall the transferee or
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any person claiming under or through the transferee establish or permit any such
practice or practices of discrimination or segregation with reference to selection,
location, number, use or occupancy of tenants, lessee, subtenants, sublessees or
vendees of the land."
ARTICLE V
CONDITION OF THE SITE; ENVIRONMENTAL MATTERS
5.1 Access to Site; Inspections. Prior to the Close of Escrow, Developer and
Developer's authorized representatives may enter upon and conduct reviews and assessments of
the physical and environmental condition of the Property. City may require Developer to
execute a right of entry agreement satisfactory to City prior to entry onto the Property for such
purpose and shall require Developer to provide proof of liability insurance acceptable to City.
Developer's inspection, examination, survey and review of the Property shall be at Developer's
sole expense. Developer shall provide City with copies of all reports and test results promptly
following completion of such reports and testing. Developer hereby agrees to notify the City
twenty-four (24) hours in advance of its intention to enter the Property and will provide
workplans, drawings, and descriptions of any intrusive sampling it intends to do. Developer
must keep the Property in a safe condition during its entry. Developer shall repair, restore and
return the Property to its condition immediately preceding Developer's entry thereon at
Developer's sole expense. Developer will not permit any mechanics liens, stop notices or other
liens or encumbrances to be placed against the Property prior to Close of Escrow. Without
limiting any other indemnity provisions set forth in this Agreement, Developer shall indemnify,
defend (with counsel approved by City) and hold the Indemnitees harmless from and against all
Claims resulting from or arising in connection with entry upon the Property by Developer or
Developer's agents, employees, consultants, contractors or subcontractors pursuant to this
Section 5.1 except to the extent arising from the gross negligence or willful misconduct of the
Indemnitees. Developer's indemnification obligations set forth in this Section 5.1 shall survive
the Close of Escrow and the termination of this Agreement.
5.2 Environmental Disclosure. To the extent the City has copies of investigation
reports concerning the Property, it will provide copies to Developer upon request; but the Parties
acknowledge that City will not be conducting a public records search of any regulatory agency
files —although the City urges Developer to do so to satisfy itself regarding the environmental
condition of the Property. By execution of this Agreement, Developer: (i) acknowledges its
receipt of the foregoing notice respecting the environmental condition of the Property; (ii)
acknowledges that it will have an opportunity to conduct its own independent review and
investigation of the Property prior to the Close of Escrow; (iii) agrees to rely solely on its own
experts in assessing the environmental condition of the Property and its sufficiency for its
intended use; and (iv) waives any and all rights Developer may have to assert that the City failed
to disclose information about the environmental condition of the Property.
5.3 Property Conveyed "AS IS". Developer specifically acknowledges that the City
is conveying to Developer and Developer is accepting from the City the Property on an "AS IS"
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"WHERE IS" and "WITH ALL FAULTS" basis and that Developer is not relying on any
representations or warranties of any kind whatsoever, express or implied, from City, its
employees, board members, agents, or brokers as to any matters concerning the Property. The
City makes no representations or warranties as to any matters concerning the Property, including
without limitation: (i) the quality, nature, adequacy and physical condition of the property,
including, but not limited to, access, and landscaping, (ii) the quality, nature, adequacy, and
physical condition of soils, geology and any groundwater, (iii) the existence, quality, nature,
adequacy and physical condition of utilities serving the Property, (iv) the development potential
of the Property, and the Property's use, habitability, merchantability, or fitness, suitability, value
or adequacy of the Property for any particular purpose, (v) the zoning or other legal status of the
property or any other public or private restrictions on use of the Property, (vi) the compliance of
the Property or its operation with any Environmental Laws, covenants, conditions and
restrictions of any governmental or quasi -governmental entity or of any other person or entity,
(vii) the presence or removal of Hazardous Material, substances or wastes on, under or about the
Property or the adjoining or neighboring property; (viii) the condition of title to the Property, (ix)
the leases, service contracts, or other agreements affecting the Property, or (x) the economics of
the operation of the Property.
5.4 Developer to Rely on Own Experts. Developer understands that notwithstanding
the delivery by City to Developer of any materials, including, without limitation, third party
reports, Developer will rely entirely on Developer's own experts and consultants and its own
independent investigation in proceeding with the acquisition of the Property.
5.5 Release by Developer. Effective upon the Close of Escrow for the Property,
Developer WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES the
Indemnitees and any person acting on behalf of the City, from any and all Claims, direct or
indirect, known or unknown, foreseen or unforeseen, which Developer now has or which may
arise in the future on account of or in any way arising out of or in connection with the physical
condition of the Property, the presence of Hazardous Material in, on, under or about the
Property, or any law or regulation applicable thereto including, without limiting the generality of
the foregoing, all Environmental Laws.
DEVELOPER ACKNOWLEDGES THAT DEVELOPER IS FAMILIAR WITH SECTION 1542
OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR OR RELEASING PARTYDOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.
BY INITIALING BELOW, DEVELOPER EXPRESSLY WAIVES THE BENEFITS OF
SECTION 1542 OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE
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FOREGOING RELEASE.
that:
Developer's initials:
5.6 Developer's Post -Closing Obligations. Developer hereby covenants and agrees
(1) Developer shall not cause or permit the Property or any portion thereof to
be a site for the use, generation, treatment, manufacture, storage, disposal or
transportation of Hazardous Material or otherwise cause or permit the presence or release
of Hazardous Material in, on, under, about or from the Property, with the exception of
limited amounts of cleaning supplies and other materials customarily used in
construction, use or maintenance of residential properties similar in nature to the Project,
and used, stored and disposed of in compliance with Environmental Laws.
(2) Developer shall keep and maintain the Property and each portion thereof
in compliance with, and shall not cause or permit the Project or the Property or any
portion of either to be in violation of, any Environmental Laws.
(3) Upon receiving actual knowledge of the same, Developer shall
immediately advise City in writing of: (i) any and all enforcement, cleanup, removal or
other governmental or regulatory actions instituted, completed or threatened against the
Developer, or the Property pursuant to any applicable Environmental Laws; (ii) any and
all claims made or threatened by any third party against the Developer or the Property
relating to damage, contribution, cost recovery, compensation, loss or injury resulting
from any Hazardous Material; (iii) the presence or release of any Hazardous Material in,
on, under, about or from the Property; or (iv) Developer's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Project classified as
"Border Zone Property" under the provisions of California Health and Safety Code,
Sections 25220 et seq., or any regulation adopted in connection therewith, that may in
any way affect the Property pursuant to any Environmental Laws or cause it or any part
thereof to be designated as Border Zone Property. The matters set forth in the foregoing
clauses (i) through (iv) are hereinafter referred to as "Hazardous Materials Claims").
The City shall have the right to join and participate in, as a party if it so elects, any legal
proceedings or actions initiated in connection with any Hazardous Materials Claim.
(4) Without the City's prior written consent, which shall not be unreasonably
withheld or delayed, Developer shall not take any remedial action in response to the
presence of any Hazardous Material in, on, under, or about the Property (other than in
emergency situations or as required by governmental agencies having jurisdiction in
which case the City agrees to provide its consent), nor enter into any settlement
agreement, consent decree, or other compromise in respect to any Hazardous Materials
Claim. City shall have the right to join and participate in, as a party if it so elects, any
legal proceedings or actions initiated in connection with any Hazardous Materials Claims
and to have its reasonable attorneys' fees in connection therewith paid by Developer.
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5.7 Environmental Indemnity. To the greatest extent allowed by law, Developer shall
indemnify, defend (with counsel approved by City) and hold Indemnitees harmless from and
against all Claims resulting, arising, or based directly or indirectly in whole or in part, upon (i)
the presence, release, use, generation, discharge, storage or disposal of any Hazardous Material
on, under, in or about the Property, or the transportation of any such Hazardous Material to or
from, the Property, or (ii) the failure of Developer, Developer's employees, agents, contractors,
subcontractors, or any person acting on behalf of or as the invitee of any of the foregoing to
comply with Environmental Laws, except to the extent caused by the City's gross negligence or
willful misconduct. The foregoing indemnity shall further apply to any residual contamination
in, on, under or about the Property or affecting any natural resources, and to any contamination
of any property or natural resources arising in connection with the generation, use, handling,
treatment, storage, transport or disposal of any such Hazardous Material, and irrespective of
whether any of such activities were or will be undertaken in accordance with Environmental
Laws.
Developer's obligation to indemnify the Indemnitees shall not be limited or impaired by
any of the following: (i) any amendment or modification of any City Document; (ii) any
extensions of time for performance required by any City Document; (iii) the accuracy or
inaccuracy of any representation and warranty made by Developer under this Agreement or by
Developer or any other party under any City Document, and (iv) the release of Developer or any
other person, by City or by operation of law, from performance of any obligation under any City
Document.
The provisions of this Section 5.7 shall be in addition to any and all other obligations and
liabilities that Developer may have under applicable law, and each Indemnitee shall be entitled to
indemnification under this Section without regard to whether City or that Indemnitee has
exercised any rights against the Property or any other security, pursued any rights against any
party, or pursued any other rights available under the City Documents or applicable law. The
obligations of Developer to indemnify the Indemnitees under this Section shall survive the
expiration or earlier termination of this Agreement.
5.8 Definitions.
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5.8.1 "Hazardous Material' means any chemical, compound, material, mixture, or substance
that is now or may in the future be defined or listed in, or otherwise classified pursuant to any
Environmental Laws (defined below) as a "hazardous substance", "hazardous material",
"hazardous waste", "extremely hazardous waste", infectious waste", toxic substance", toxic
pollutant", or any other formulation intended to define, list or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, or toxicity.
The term "hazardous material" shall also include asbestos or asbestos -containing materials,
radon, chrome and/or chromium, polychlorinated biphenyls, petroleum, petroleum products or
by-products, petroleum components, oil, mineral spirits, natural gas, natural gas liquids, liquefied
natural gas, or synthetic gas usable as fuel, perchlorate, and methy tert butyl ether, whether or not
defined as a hazardous waste or hazardous substance in the Environmental Laws.
5.8.2 "Environmental Laws" means any and all federal, state and local statutes,
ordinances, orders, rules, regulations, guidance documents, judgments, governmental
authorizations or directives, or any other requirements of governmental authorities, as may
presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the
presence, release, generation, use, handling, treatment, storage, transportation or disposal of
Hazardous Material, or the protection of the environment or human, plant or animal health,
including, without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. § 1251 etseq.), the Clean Air Act (42 U.S.C. § 7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33
U.S.C. § 2701 et seq.), the Emergency Planning and Community Right -to -Know Act (42 U.S.C.
§ 11001 et seq.), the Porter -Cologne Water Quality Control Act (Cal. Water Code § 13000 et
seq.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe
Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et
seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seq.), the
Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code
§ 25500 et seq.), and the Carpenter -Presley -Tanner Hazardous Substances Account Act (Cal.
Health and Safety Code, Section 25300 et seq.).
ARTICLE VI
LIMITATIONS ON CHANGE IN OWNERSHIP, MANAGEMENT
AND CONTROL OF DEVELOPER
6.1 Identity of Developer; Changes Only Pursuant to this Agreement. Developer and
its principals have represented that they possess the necessary expertise, skill and ability to carry
out the development of the Project pursuant to this Agreement. The qualifications, experience,
financial capacity and expertise of Developer and its principals are of particular concern to the
City. It is because of these qualifications, experience, financial capacity and expertise that the
City has entered into this Agreement with Developer. No voluntary or involuntary successor,
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assignee or transferee of Developer shall acquire any rights or powers under this Agreement,
except as expressly provided herein.
6.2 Prohibition on Transfer. Prior to the expiration of the term of the Regulatory
Agreement, Developer shall not, except as expressly permitted by this Agreement, directly or
indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial
sale, transfer, conveyance, assignment or lease (collectively, "Transfer") of the whole or any
part of the Property, the Project, the Improvements, or this Agreement, without the prior written
approval of City which approval shall not be unreasonably withheld. Any such attempt to assign
this Agreement without the City's consent shall be null and void and shall confer no rights or
privileges upon the purported assignee. In addition to the foregoing, prior to the expiration of the
term of the Regulatory Agreement, except as expressly permitted by this Agreement, Developer
shall not undergo any significant change of ownership without the prior written approval of City.
For purposes of this Agreement, a "significant change of ownership" shall mean a transfer of the
beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership
and /or control of Developer, taking all transfers into account on a cumulative basis; provided
however, neither the admission of an investor limited partner, nor the transfer by the investor
limited partner to subsequent limited partners shall be restricted by this provision.
6.3 Requirements for Proposed Transfers. The City may, in the exercise of its sole
discretion, consent to a proposed Transfer of this Agreement, the Property, the Improvements or
part thereof that will be effective concurrently with or after the Close of Escrow, if all of the
following requirements are met:
(i) The proposed transferee demonstrates to the City's satisfaction that it has
the qualifications, experience and financial resources necessary and adequate as may be
reasonably determined by the City to competently complete and manage the Project and to
otherwise fulfill the obligations undertaken by the Developer under this Agreement.
(ii) The Developer and the proposed transferee shall submit for City review
and approval all instruments and other legal documents proposed to effect any Transfer of all or
any part of or interest in the Property, the Improvements or this Agreement together with such
documentation of the proposed transferee's qualifications and development capacity as the City
may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and
obligations of the Developer under this Agreement and the other City Documents arising after
the effective date of the Transfer and all obligations of Developer arising prior to the effective
date of the Transfer (unless Developer expressly remains responsible for such obligations), and
shall agree to be subject to, and assume all of, Developer's obligations pursuant to the
Conditions of Approval and all other conditions, and restrictions set forth in this Agreement and
the other City Documents. The assumption of such obligations shall be documented in an
assignment and assumption agreement in form approved by City and that will be effective
concurrently with or after the Close of Escrow.
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(iv) The Transfer shall be effectuated pursuant to a written instrument
satisfactory to the City in form recordable in the Official Records.
Consent to any proposed Transfer may be given by the City's Authorized
Representative unless the Authorized Representative, in his or her discretion, refers the matter of
approval to the City Council. If the City has not rejected a proposed Transfer or requested
additional information regarding a proposed Transfer in writing within thirty (30) days following
City's receipt of written request by Developer, the proposed Transfer shall be deemed approved.
6.4 Effect of Transfer without City Consent.
6.4.1 In the absence of specific written agreement by the City, no Transfer by
Developer shall be deemed to relieve the Developer or any other party from any obligation under
this Agreement.
6.4.2 It shall be an Event of Developer Default hereunder entitling City to
pursue remedies including without limitation, termination of this Agreement if without the prior
written approval of the City, Developer assigns or Transfers this Agreement, the Improvements,
or the Property, or any part thereof in violation of Article VI.
6.5 Recovery of City Costs. Within ten (10) days following City's delivery to
Developer of an invoice detailing such costs, Developer shall reimburse City for all reasonable
City costs, including but not limited to reasonable attorneys' fees, incurred in reviewing
instruments and other legal documents proposed to effect a Transfer of this Agreement, the
Property or the Improvements, or part thereof, and in reviewing the qualifications and financial
resources of a proposed successor, assignee, or transferee.
ARTICLE VII
SECURITY FINANCING AND RIGHTS OF MORTGAGEES
7.1 Mortgages and Deeds of Trust for Development. Mortgages and deeds of trust, or
any other reasonable security instrument are permitted to be placed upon the Property or the
Improvements only for the purpose of securing loans for the purpose of financing the acquisition
of the Property, the design and construction of the Improvements, and other expenditures
reasonably necessary for the development of the Project pursuant to this Agreement. Developer
shall not enter into any conveyance for such financing that is not contemplated in the applicable
Financing Plan as it may be updated with City approval, without the prior written approval of the
Authorized Representative or his or her designee. As used herein, the terms "mortgage" and
"deed of trust" shall mean any security instrument used in financing real estate acquisition,
construction and land development.
7.2 Subordination. The City agrees that City will not withhold consent to reasonable
requests for subordination of the Regulatory Agreement to deeds of trust provided for the benefit
of lenders providing construction and/or permanent financing for the Project consistent with the
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approved Financing Plan as it may be updated with City approval, provided that the instruments
effecting such subordination include reasonable protections to the City in the event of default,
including without limitation, extended notice and cure rights. Developer agrees to use best
efforts to cause requested subordination agreements to include the rights set forth in Section 8.6
below.
7.3 Holder Not Obligated to Construct. The holder of any mortgage or deed of trust
authorized by this Agreement shall not be obligated to complete construction of the Project or to
guarantee such completion. Nothing in this Agreement shall be deemed to permit or authorize
any such holder to devote the Property or any portion thereof to any uses, or to construct any
improvements thereon, other than those uses or improvements provided for or authorized by this
Agreement.
7.4 Notice of Default and Lender Right to Cure. Whenever City delivers any notice
of default hereunder, City shall concurrently deliver a copy of such notice to each holder of
record of any mortgage or deed of trust secured by the Property or the Improvements, provided
that City has been provided with the address for delivery of such notice. City shall have no
liability to any such holder for any failure by the City to provide such notice to such holder.
Each such holder shall have the right, but not the obligation, at its option, to cure or remedy any
such default or breach within the cure period provided to Developer. In the event that possession
of the Property or the Improvements (or any portion thereof) is required to effectuate such cure
or remedy, the holder shall be deemed to have timely cured or remedied the default if it
commences the proceedings necessary to obtain possession of the Property or Improvements, as
applicable, within the applicable cure period, diligently pursues such proceedings to completion,
and after obtaining possession, diligently completes such cure or remedy. A holder who chooses
to exercise its right to cure or remedy a default or breach shall first notify City of its intent to
exercise such right prior to commencing to cure or remedy such default or breach. Nothing
contained in this Agreement shall be deemed to permit or authorize such holder to undertake or
continue the construction of the Project (beyond the extent necessary to conserve or protect the
same) without first having expressly assumed in writing Developer's obligations to City under
this Agreement. The holder in that event must agree to complete, in the manner provided in this
Agreement, the Project and the Improvements and submit evidence reasonably satisfactory to
City that it has the development capability on staff or retainer and the financial capacity
necessary to perform such obligations. Any such holder properly completing the Project
pursuant to this Section shall assume all rights and obligations of Developer under this
Agreement.
7.5 Failure of Holder to Complete Improvements. In any case where, six (6) months
after default by Developer in completion of construction of the Project, the holder of record of
any mortgage or deed of trust has not exercised its option to construct the Project, or having first
exercised such option, has not proceeded diligently with such work, City shall be afforded those
rights against such holder that it would otherwise have against Developer under this Agreement.
7.6 City Right to Cure Defaults. In the event of a breach or default by Developer
under a mortgage or deed of trust secured by the Property or the Improvements, City may cure
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the default, without acceleration of the subject loan, following prior notice thereof to the holder
of such instrument and Developer. In such event, Developer shall be liable for, and City shall be
entitled to reimbursement from Developer for all costs and expenses incurred by City associated
with and attributable to the curing of the default or breach.
7.7 Holder to be Notified. Developer agrees to use best efforts to ensure that each
term contained herein dealing with security financing and rights of holders shall be either
inserted into the relevant deed of trust or mortgage or acknowledged and accepted in writing by
the holder prior to its creating any security right or interest in the Property or the Improvements.
7.8 Modifications to Agreement. City shall not unreasonably withhold its consent to
modifications of this Agreement requested by Project lenders or investors provided such
modifications do not alter City's substantive rights and obligations under this Agreement.
7.9 Estoppel Certificates. Either Party shall, at any time, and from time to time,
within fifteen (15) days after receipt of written request from the other Party, execute and deliver
to such Party a written statement certifying that, to the knowledge of the certifying Party. (i) this
Agreement is in full force and effect and a binding obligation of the Parties (if such be the case),
(ii) this Agreement has not been amended or modified, or if so amended, identifying the
amendments, and (iii) the requesting Party is not in default in the performance of its obligations
under this Agreement, or if in default, describing the nature of any such defaults.
ARTICLE VIII
DEFAULTS, REMEDIES AND TERMINATION
8.1 Event of Developer Default. The following events shall constitute an event of
default on the part of Developer hereunder ("Event of Developer Default"):
(a) Developer fails to commence or complete construction of the Project
within the time period set forth in Section 4.1, or subject to Force Majeure, abandons or suspends
construction of the Project prior to completion for a period of sixty (60) days or more;
(b) Developer ceases for more than 90 days operation (i) of the Project as a
transitional or affordable housing project, subject to affordability and occupancy restrictions in
accordance with the Regulatory Agreement; and/or (ii) of program services in support of
transitional and affordable housing;
(c) A Transfer occurs, either voluntarily or involuntarily, in violation of
Article VI;
(d) Developer fails to maintain insurance as required pursuant to this
Agreement, and Developer fails to cure such default within five (5) days;
(e) Developer fails to pay prior to delinquency taxes or assessments due on
the Property or fails to pay when due any other charge that may result in a lien on the Property,
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and Developer fails to cure such default within twenty (20) days of the date of delinquency, but
in all events prior to the date upon which the holder of any such lien has the right to foreclose
thereon;
(f) A default arises under any loan secured by a mortgage, deed of trust or
other security instrument recorded against the Property and remains uncured beyond any
applicable cure period such that the holder of such security instrument has the right to accelerate
repayment of such loan;
(g) Any representation or warranty contained in this Agreement or in any
application, financial statement, certificate or report submitted to the City in connection with this
Agreement proves to have been incorrect in any material and adverse respect when made and
continues to be materially adverse to the City;
(h) If, pursuant to or within the meaning of the United States Bankruptcy
Code or any other federal or state law relating to insolvency or relief of debtors ("Bankruptcy
Law"), Developer or any general partner of an Approved Partnership that has acquired the
Property or part thereof: (i) commences a voluntary case or proceeding; (ii) consents to the entry
of an order for relief against Developer or any general partner of such Approved Partnership in
an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator
or similar official for Developer or any general partner of such Approved Partnership ; (iv)
makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its
debts as they become due;
(i) A court of competent jurisdiction shall have made or entered any decree or
order (1) adjudging the Developer to be bankrupt or insolvent, (2) approving as properly filed a
petition seeking reorganization of the Developer or seeking any arrangement for Developer
under bankruptcy law or any other applicable debtor's relief law or statute of the United States
or any state or other jurisdiction, (3) appointing a receiver, trustee, liquidator, or assignee of the
Developer in bankruptcy or insolvency or for any of its properties, or (4) directing the winding
up or liquidation of the Developer, in each case if such decree, order, petition, or appointment is
not removed or rescinded within sixty (60) days;
0) Developer shall have assigned its assets for the benefit of its creditors
(other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution
on any substantial part of its property, unless the property so assigned, sequestered, attached or
executed upon shall have been returned or released within sixty (60) days after such event
(unless a lesser time period is permitted for cure pursuant to paragraphs (h) or (i) above or
pursuant to any other mortgage on the Property, in which event such lesser time period shall
apply under this subsection as well) or prior to any sooner sale pursuant to such sequestration,
attachment, or execution;
(k) The Developer shall have voluntarily suspended its business or Developer
shall have been dissolved or terminated;
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(1) An event of default arises under any City Document and remains uncured
beyond any applicable cure period; or
(m) Developer defaults in the performance of any term, provision, covenant or
agreement contained in this Agreement other than an obligation enumerated in this Section 8.1
and unless a shorter cure period is specified for such default, the default continues for thirty (30)
days after the date upon which City shall have given written notice of the default to Developer;
provided however, if the default is of a nature that it cannot be cured within thirty (30) days, an
Event of Developer Default shall not arise hereunder if Developer commences to cure the default
within thirty (30) days and thereafter prosecutes the curing of such default with due diligence
and in good faith to completion.
8.2 City Default. An event of default on the part of City ("Event of City Default")
shall arise hereunder if City fails to keep, observe, or perform any of its covenants, duties, or
obligations under this Agreement, and the default continues for a period of sixty (60) days after
written notice thereof from Developer to City, or in the case of a default which cannot with due
diligence be cured within sixty (60) days, City fails to commence to cure the default within sixty
(60) days of such notice and thereafter fails to prosecute the curing of such default with due
diligence and in good faith to completion.
8.3 City's Right to Terminate Agreement. If an Event of Developer Default shall
occur and be continuing beyond any applicable cure period, then City shall, in addition to other
rights available to it under law or this Agreement, have the right to terminate this Agreement. If
City makes such election, City shall give written notice to Developer and to any mortgagee
entitled to such notice specifying the nature of the default and stating that this Agreement shall
expire and terminate on the date specified in such notice, and upon the date specified in the
notice, this Agreement and all rights of Developer under this Agreement, shall expire and
terminate.
8.4 City's Remedies and Rights Upon an Event of Developer Default. Upon the
occurrence of an Event of Developer Default and the expiration of any applicable cure period,
City shall have all remedies available to it under this Agreement or under law or equity,
including, but not limited to the following, and City may, at its election, without notice to or
demand upon Developer, except for notices or demands required by law or expressly required
pursuant to the City Documents, exercise one or more of the following remedies:
(a) Seek specific performance to enforce the terms of the City Documents;
(b) Exercise its rights under the Assignment Agreement;
(c) Terminate this Agreement pursuant to Section 8.3; and
(d) Pursue any and all other remedies available under this Agreement or under
law or equity to enforce the terms of the City Documents and City's rights thereunder.
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8.5 Developer's Remedies Upon an Event of City Default. Upon the occurrence of an
Event of City Default, in addition to pursuing any other remedy provided in this Agreement,
Developer may bring an action for equitable relief seeking the specific performance of the terms
and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such
terms and conditions.
8.6 Remedies Cumulative. Except as otherwise expressly stated in this Agreement,
the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or
more of such rights or remedies shall not preclude the exercise by it, at the same or different
time, of any other rights or remedies for the same or any other default by the other Party.
8.7 Inaction Not a Waiver of Default. No failure or delay by either Party in asserting
any of its rights and remedies as to any default shall operate as a waiver of such default or of any
such rights or remedies, nor deprive either Party of its rights to institute and maintain any action
or proceeding which it may deem necessary to protect, assert or enforce any such rights or
remedies in the same or any subsequent default.
8.8 Power of Termination. If following conveyance of the Property to Developer,
Developer (i) fails to obtain all necessary entitlements, approvals and permits for the Project; (ii)
fails to begin construction of the Project within the time specified in Section 4.1 as such date
may be extended pursuant to the terms hereof, (iii) abandons or suspends construction work for a
period of sixty (60) days after written notice from City, (iv) fails to complete construction of the
Project by the time specified in Section 4.1 as such date may be extended pursuant to the terms
hereof, (v) ceases for more than 90 days operation (a) of the Project as a transitional or
affordable housing project, subject to affordability and occupancy restrictions in accordance with
the Regulatory Agreement; and/or (b) of program services in support of transitional and
affordable housing; or (v) directly or indirectly, voluntarily or involuntarily Transfers the
Property or part thereof or this Agreement in violation of Article VI, the City may re-enter and
take possession of the Property or any portion thereof with all improvements thereon without
payment or compensation to Developer, and revest in the City the estate theretofore conveyed to
the Developer. The interest created pursuant to this Section 8.8 shall be a "power of termination"
as defined in California Civil Code Section 885.010, and shall be separate and distinct from the
City's option to purchase the Property under the same or similar conditions specified in Section
89. City's rights pursuant to this Section 8.8 shall not defeat, render invalid or limit any
mortgage or deed of trust permitted by this Agreement or any rights or interests provided in this
Agreement for the protection of the holders of such mortgages or deeds of trust.
Upon reverting in the City of title to the Property or any portion thereof as provided in
this Section 8.8, the City shall use its best efforts to resell the Property or applicable portion
thereof and as soon as possible, in a commercially reasonable manner to a qualified and
responsible party or parties (as determined by the City) who will assume the obligation of
completing and operating the Project in accordance with the uses specified for such property in
this Agreement and in a manner satisfactory to the City. Upon such resale of the Property or any
portion thereof, the sale proceeds shall be applied as follows:
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(a) First, to reimburse the City for all costs and expenses incurred by City, including
but not limited to salaries of personnel and legal fees incurred in connection with the recapture
and resale of the Property; all taxes and assessments payable prior to resale, and all applicable
water and sewer charges; any payments necessary to discharge any encumbrances or liens on
the Property at the time of reverting of title thereto in the City or to discharge or prevent from
attaching any subsequent encumbrances or liens due to obligations, defaults, or acts of the
Developer, its successors or transferees; any expenditures made or obligations incurred with
respect to the completion of the Project or any part thereof on the Property; and any other
amounts owed to the City by Developer and its successors or transferee pursuant to the City
Documents or otherwise.
(b) Second, to reimburse the City for damages to which it is entitled under this
Agreement by reason of the Developer's default.
(c) Third, to reimburse the Developer, its successor or transferee, up to the amount
equal to:
(1) The fair market value of any new improvements constructed by Developer
and existing on the Property at the time of City's exercise of its rights under this Section; less
(2) the amount of the Measure H Funding; and less
(3) Any gains or income withdrawn or made by the Developer from the
Property or applicable portion thereof or the improvements thereon.
Notwithstanding the foregoing, the amount calculated pursuant to this subsection (c) shall
not exceed the fair market value of the Improvements thereon as of the date of the default or
failure which gave rise to the City's exercise of the power of termination.
(3) Any balance remaining after such reimbursements shall be retained by the
City.
The rights established in this Section 8.8 are to be interpreted in light of the fact that the
City will convey the Property to the Developer for completion of the Project as specified herein
and not for speculation.
8.9 Option to Purchase, Enter and Possess Upon Default. The City shall have the
additional right at its option to purchase, enter and take possession of the Property with all
improvements thereon (the "Repurchase Option"), if after conveyance of the Property,
Developer (i) fails to obtain all necessary entitlements, approvals and permits for the Project; (ii)
fails to begin construction of the Project within the time specified in Section 4.1 as such date
may be extended pursuant to the terms hereof, (iii) abandons or suspends construction of the
Project for a period of sixty (60) days after written notice from City, (iv) fails to complete
construction of the Project by the time specified in Section 4.1 as such date may be extended
pursuant to the terms hereof, (v) ceases for more than days operation (a) of the Project as a
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transitional or affordable housing project, subject to affordability and occupancy restrictions in
accordance with the Regulatory Agreement; and/or (b) of program services in support of
transitional and affordable housing or (vi) directly or indirectly, voluntarily or involuntarily
Transfers the Property or part thereof or this Agreement in violation of Article VI. If it exercises
Repurchase Option, the City shall pay to the Developer cash in an amount equal to:
(i) The fair market value of any new Improvements constructed on the Property by
Developer and existing on the Property at the time of exercise of the Option; less
(ii) Any gains or income withdrawn or made by the Developer from the applicable
portion of the Property or the improvements thereon; less
(iii) The amount of the Measure H Funding; and less
(iv) The value of any liens or encumbrances on the applicable portion of the Property
which the City assumes or takes subject to; less
(v) Any amounts owed to the City by Developer and its successors or transferee
pursuant to the City Documents or otherwise; less
(vi) All taxes, assessments and utility charges payable with respect to the Property for
the period prior to the date the City acquires title to the Property; less
(vii) The amount of any payments necessary to discharge or prevent from attaching
any subsequent encumbrances or liens due to obligations, defaults, or acts of the Developer, its
successors or transferees; less
(viii) Any damages to which the City is entitled under this Agreement by reason of
Developer's default.
In order to exercise the Repurchase Option, the City shall give Developer written notice
of such exercise, and Developer shall, within thirty (30) days after receipt of such notice, provide
City with a summary of all of Developer's costs incurred as described in this Section 8.9. Within
thirty (30) days of City's receipt of such summary, City shall pay into an escrow established for
such purpose cash in the amount of all sums owing pursuant to this Section 8.9, and Developer
shall execute and deposit into such escrow a grant deed transferring to City all of Developer's
interest in the Property, or portion thereof, as applicable, and the improvements located thereon.
8.10 City's Rights Pursuant to Sections 8.8 and 8.9. The rights afforded City pursuant
to Sections 8.8 and 8.9 shall be described in the Grant Deed.
8.11 Rights of Mortgagees. Any rights of the City under this Article VIII shall not
defeat, limit or render invalid any mortgage or deed of trust permitted by this Agreement or any
rights provided for in this Agreement for the protection of holders of such instruments. Any
conveyance or return of the Property to the City pursuant to this Article VIII shall be subject to
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mortgages and deeds of trust permitted by this Agreement.
8.12 Assignment. The City shall have the right to assign the Repurchase Option to any
other governmental entity, or a qualified nonprofit corporation.
ARTICLE IX
INDEMNITY AND INSURANCE
9.1 Indemnity. Developer shall indemnify, defend (with counsel approved by City)
and hold the Indemnitees harmless from and against any and all Claims (including without
limitation, Claims arising from any injury, death, illness, property damage, or loss of property)
arising directly or indirectly, in whole or in part, as a result of or in connection with the
development, construction, improvement, operation, ownership or maintenance of the Project or
the Property, or any part thereof by Developer or Developer's contractors, subcontractors,
agents, employees or any other party acting for or on behalf of Developer, or otherwise arising
out of or in connection with Developer's performance or failure to perform under this
Agreement, including without limitation, Claims arising or alleged to have arisen in connection
with any violation of Applicable Laws in connection with the development, operation or
management of the Project, or relating to approval of the Project or approval of this Agreement.
Developer's indemnification obligations under this Section 9.1 shall not extend to Claims to the
extent arising from the gross negligence or willful misconduct of Indemnitees. The provisions of
this Section 9.1 shall survive the expiration or earlier termination of this Agreement. It is further
agreed that City does not and shall not waive any rights against Developer that it may have by
reason of this indemnity and hold harmless agreement because of the acceptance by City, or the
deposit with City by Developer, of any of the insurance policies described in this Agreement.
9.2 Insurance.
9.2.1 General Requirements. Project construction shall not commence until
Developer shall have obtained all insurance required under this Section, nor shall Developer
allow any contractor or subcontractor to commence work on the Project until all insurance
required of the Developer and/or contractor or subcontractor shall have been so obtained. All
requirements herein provided shall appear either in the body of the insurance policies or as
endorsements, and shall specifically bind the insurance carrier.
Developer shall procure and maintain the following insurance providing coverage against claims
for injuries to persons or damages to property that may arise from or in connection with the
development, construction, management, or operation of the Project by the Developer or the
Developer's agents, representatives, employees and contractors, or subcontractors, including the
following:
(a) Commercial General Liability: The Developer (and until issuance of the final
certificate of occupancy or equivalent for the Project all contractors working on behalf of
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Developer on the Project) shall maintain a commercial general liability policy in an occurrence
policy for protection against all claims arising from injury to person or persons not in the employ
of the Developer and against all claims resulting from damage to any property due to any act or
omission of the Developer, its agents, or employees in the conduct or operation of the work or
the execution of this Agreement. Such insurance shall include products and completed operations
liability, blanket contractual liability, personal injury liability, and broad form property damage
coverage. Coverage shall be at least as broad as Insurance Services Office Commercial General
Liability coverage.
(b) Commercial Automobile Liability: The Developer (and until issuance of the final
certificate of occupancy or equivalent for the Project all contractors working on behalf of
Developer on the Project) shall maintain insurance for protection against all claims arising from
the use of vehicles, owned, hired, non -owned, or any other vehicle in connection with the
development, construction, operation or management of the Project. Such insurance shall cover
the use of automobiles and trucks on and off the site of the Property. Coverage shall be at least as
broad as Insurance Services Office covering Commercial Automobile Liability, any auto, owned,
non -owned and hired auto.
(c) Workers' Compensation Insurance: The Developer (and if the Property has been
transferred to an Approved Partnership, the general partners thereof) shall furnish or cause to be
furnished to City evidence satisfactory to City that Developer (and if the Property has been
transferred to an Approved Partnership, the general partners thereof), and any contractor with
whom Developer (or an Approved Partnership) has contracted for the performance of work on
the Property or otherwise pursuant to this Agreement, shall maintain Workers' Compensation
Insurance as required by the State of California and Employer's Liability Insurance.
(d) Builder's Risk: Upon commencement of construction work and continuing until
issuance of the final certificate of occupancy or equivalent for the Project, Developer and all
contractors working on behalf of Developer shall maintain a policy of builder's all-risk insurance
in an amount not less than the full insurable cost of the Project on a replacement cost basis
naming City as loss payee as its interests may appear.
(e) Professional Liability/Errors and Omissions: Developer shall require the Project
architect, engineer, and general contractor to maintain Professional Liability/Errors and
Omissions insurance with limits not less than Two Million Dollars ($2,000,000) each claim.
Certificates evidencing this coverage must reference both the Developer and the Indemnitees. If
the professional liability/errors and omissions insurance is written on a claims made form: (i)
the retroactive date must be shown and must be before the Effective Date, (ii) insurance must be
maintained and evidence of insurance must be provided for at least three (3) years after
completion of Project construction, and (iii) if coverage is cancelled or non -renewed and not
replaced with another claims made policy form with a retroactive date prior to the Effective
Date, Developer must purchase, or require the provision of, extended period coverage for a
minimum of three (3) years after completion of construction.
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(f) Property: Commencing upon completion of construction of the Project,
Developer shall maintain property insurance covering all risks of loss, for 100% of the
replacement value of the Project with deductible, if any, in an amount acceptable to City, naming
City as loss payee as its interests may appear.
(g) Pollution Legal Liability Insurance: Developer shall require the contractor to
carry pollution liability insurance to provide third -party coverage for bodily injury, property
damage, cleanup, and related defense costs.
9.2.2 Minimum Limits; Adjustments. Insurance shall be maintained with limits
no less than the following:
(a) Commercial General Liability and Property Damage: $2,000,000 per
occurrence and $5,000,000 annual aggregate for bodily injury, personal injury and
property damage; provided however, subcontractors may maintain liability coverage with
limits not less than $1,000,000 per occurrence, $2,000,000 annual aggregate.
(b) Products and Completed Operations: $3,000,000 per
occurrence/aggregate.
(c) Commercial Automobile Liability: $2,000,000 combined single limit.
(d) Employer's Liability:
Bodily Injury by Accident - $1,000,000 each accident.
Bodily Injury by Disease - $1,000,000 policy limit.
Bodily Injury by Disease - $1,000,000 each employee.
(e) Professional Liability/Errors and Omissions: $2,000,000 per occurrence or
claim; provided however, subcontractors may maintain coverage with limits not less than
$1,000,000 per occurrence or claim. If the policy provides coverage on a claims -made
basis, the retroactive date must be shown and must be before the date of the Agreement
or the beginning of the contract work.
(f) Pollution Liability Insurance: Contractors' pollution legal liability with
limits no less than $1,000,000 per occurrence or claim and $2,000,000 policy aggregate.
If the policy provides coverage on a claims -made basis, the retroactive date must be
shown and must be before the date of the Agreement or the beginning of the contract
work.
9.2.3 Deductibles and Self -Insured Retention. Any deductibles or self -insured
retention must be declared to the City. Payment of all deductibles and self -insured retentions
will be the responsibility of Developer. If the City determines that such deductibles or retentions
are unreasonably high, either the insurer shall reduce or eliminate such deductibles or self-
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insurance retentions as respects the Indemnitees or Developer shall procure a bond guaranteeing
payment of losses and related investigations, claims administration and defense.
9.2.4 Additional Requirements. The required general liability and automobile
policies shall contain, or be endorsed to contain, the following provisions:
1) The Indemnitees are to be covered as Additional Insureds as respects: liability
arising out of activities performed by or on behalf of the Developer; products and completed
operations of the Developer; premises owned, occupied or used by the Developer; or
automobiles owned, leased, hired or borrowed by the Developer. The coverage shall contain no
special limitations on the scope of protection afforded to the Indemnitees. Additional insured
endorsements for the general liability coverage shall use Insurance Services Office (ISO) Form
No. CG 20 09 11 85 or CG 20 10 11 85, or equivalent, including (if used together) CG 2010 10
01 and CG 2037 10 01; but shall not use the following forms: CG 20 10 10 93 or 03 94.
2) All insurance shall be primary insurance as respects the Indemnitees. Any
insurance or self-insurance maintained by the Indemnitees shall be excess of the
Developer's/contractor's insurance and shall not contribute with it.
3) Any failure to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect coverage provided to the Indemnitees.
4) The Developer's insurance shall apply separately to each insured against whom
claim is made or suit is brought except, with respect to the limits of the insurer's liability.
5) Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in
limits except after thirty (30) days' prior written notice by certified mail, return receipt requested,
has been given to the City.
6) If any insurance policy or coverage required hereunder is canceled or reduced,
Developer shall, within five (5) days after receipt of notice of such cancellation or reduction in
coverage, but in no event later than the effective date of cancellation or reduction, file with City
a certificate showing that the required insurance has been reinstated or provided through another
insurance company or companies. Upon failure to so file such certificate, City may, without
further notice and at its option, procure such insurance coverage at Developer's expense, and
Developer shall promptly reimburse City for such expense upon receipt of billing from City.
7) Developer agrees to waive subrogation rights for commercial general liability,
automobile liability and worker's compensation against Indemnitees regardless of the
applicability of any insurance proceeds, and to require all contractors, subcontractors or others
involved in any way with the Services to do likewise. Each insurance policy shall contain a
waiver of subrogation for the benefit of City. If any required insurance is provided under a form
of coverage that includes an annual aggregate limit or provides that claims investigation or legal
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defense costs are included in such annual aggregate limit, such annual aggregate limit shall be
three times the applicable occurrence limits specified above.
8) It shall be a requirement under this Agreement that any available insurance
proceeds broader than or in excess of the specified minimum insurance coverage requirement
and/or limits shall be available to the additional insured. Furthermore, the requirement for
coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement, or
(2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds
available to the named insured; whichever is greater. For all liability insurance required by this
Agreement, Developer (and Developer's contractors, as applicable) shall obtain endorsements
that name the Indemnitees as additional insured in the full amount of all applicable policies,
notwithstanding any lesser minimum limits specified in this Agreement. This Agreement
requires Developer (and Developer's contractors) to obtain and provide for the benefit of the
Indemnitees, additional insured coverage in the same amount of insurance carried by Developer
(or Developer's contractors, as applicable), but in no event less than the minimum amounts
specified in this Agreement. In the event that Developer (or Developer's contractors as
applicable) obtains insurance policies that provide liability coverage in excess of the amounts
specified in this Agreement, the actual limits provided by such policies shall be deemed to be the
amounts required under this Agreement. Without limiting the foregoing, the limits of liability
coverage specified in this Agreement are not intended, nor shall they operate, to limit City's
ability to recover amounts in excess of the minimum amounts specified in this Agreement.
9) The limits of insurance required in this Agreement may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess insurance
shall contain or be endorsed to contain a provision that such coverage shall also apply on a
primary and non-contributory basis for the benefit of the City before the City's own insurance or
self-insurance shall be called upon to protect it as a named insured.
9.2.5 Acceptability of Insurers. Companies writing the insurance required hereunder
shall be licensed to do business in the State of California. Insurance is to be placed with insurers
with a current A.M. Best's rating of no less than A: VII.
9.2.6 Verification of Coverage. Prior to the Effective Date of this Agreement, Developer
shall furnish City with certificates of insurance in form acceptable to City evidencing the
insurance coverage required under paragraphs (a), (b), (c), and (e) of Section 9.2.1 above, duly
executed endorsements evidencing the Indemnitees' status as additional insured, and all other
endorsements and coverage required hereunder pertaining to such coverage. Prior to
commencement of construction work, Developer shall furnish City with certificates of insurance
in form acceptable to City evidencing the insurance coverage required under paragraphs (d) and
(g) of Section 9.2.1 above. Prior to City's issuance of a final certificate of occupancy or
equivalent for the Project, Developer shall furnish City with certificates of insurance in form
acceptable to City evidencing the insurance coverage required under paragraph (f) of Section
9.2.1 above. Developer shall furnish the City with original endorsements effecting coverage
required by this clause. The endorsements are to be signed by a person authorized by that insurer
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to bind coverage on its behalf All endorsements are to be received and approved by the City
before the Services commence.
9.2.7 Insurance Certificates and Endorsements. Developer shall provide to City all the
necessary insurance documents, including the applicable amendatory endorsements (or copies of
the applicable policy language effecting coverage required by this clause) and a copy of the
Declarations and Endorsement Page of required Developer policies listing all required policy
endorsements. Insurance Certificates and Endorsements are to be received and approved by the
City within the time periods specified in Section 9.2.6 above. Should Developer cease to have
insurance as required at any time, all work by Developer pursuant to this Agreement shall cease
until insurance acceptable to the City is provided. Upon City's request, Developer shall, within
thirty (30) days of the request, provide or arrange for the insurer to provide to City, complete
certified copies of all insurance policies required under this Agreement. City's failure to make
such request shall not constitute a waiver of the right to require delivery of the policies in the
future.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 No Brokers. Each Party warrants and represents to the other that no person or
entity can properly claim a right to a real estate commission, brokerage fee, finder's fee, or other
compensation with respect to the transactions contemplated by this Agreement. Each Party
agrees to defend, indemnify and hold harmless the other Party from any claims, expenses, costs
or liabilities arising in connection with a breach of this warranty and representation. The terms
of this Section shall survive the close of escrow and the expiration or earlier termination of this
Agreement.
10.2 Enforced Delay; Extension of Times of Performance. The time for performance
of provisions of this Agreement by either Party shall be extended for a period equal to the period
of any delay directly affecting the Project or this Agreement which is caused by war,
insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of a
public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, suits
filed by unrelated third parties concerning or arising out of this Agreement or unseasonable
weather conditions ("Force Majeure"). An extension of time for any of the above -specified
causes will be deemed granted only if written notice by the Party claiming such extension is sent
to the other Party within ten (10) calendar days from the commencement of the cause. City and
Developer acknowledge that adverse changes in economic conditions, either of the affected
Party specifically or the economy generally, changes in market conditions or demand, and/or
inability to obtain financing to complete the Project shall not constitute grounds of enforced
delay pursuant to this Section. Each Party expressly assumes the risk of such adverse economic
or market changes and/or financial inability, whether or not foreseeable as of the Effective Date.
Times of performance under this Agreement may also be extended in writing by the
mutual agreement of Developer and City (acting in the reasonable discretion of the Authorized
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Representative unless he or she determines in his or her discretion to refer such matter to the
City Council). If Developer requires additional time despite its diligent efforts to meet the
performance deadlines set forth in this Agreement, City will not unreasonably withhold consent
to a request for extension of such deadlines.
10.3 Notices. Except as otherwise specified in this Agreement, all notices to be sent
pursuant to this Agreement or any other City Document shall be made in writing, and sent to the
Parties at their respective addresses specified below or to such other address as a Party may
designate by written notice delivered to the other Parties in accordance with this Section. All
such notices shall be sent by: (i) personal delivery, in which case notice is effective upon
delivery, (ii) certified or registered mail, return receipt requested, in which case notice shall be
deemed delivered on receipt if delivery is confirmed by a return receipt; or (iii) nationally
recognized overnight courier, with charges prepaid or charged to the sender's account, in which
case notice is effective on delivery if delivery is confirmed by the delivery service.
City: City of Santa Clarita
23920 Valencia Blvd., Suite 304
Santa Clarita, CA 91355
Attention: City Manager
Developer: Family Promise of Santa Clarita Valley
Attention: Executive Director
10.4 Attorneys' Fees. If either Party fails to perform any of its obligations under this
Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation
of any provision hereof, then the prevailing Party in any proceeding in connection with such
dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or
establishing its rights hereunder, including, without limitation, court costs and reasonable
attorneys' fees and disbursements.
10.5 Waivers; Modification. No waiver of any breach of any covenant or provision of
this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no
waiver shall be valid unless in writing and executed by the waiving Party. An extension of time
for performance of any obligation or act shall not be deemed an extension of the time for
performance of any other obligation or act, and no extension shall be valid unless in writing and
executed by the Party granting the extension. This Agreement may be amended or modified only
by a written instrument executed by the Parties.
10.6 Binding on Successors. Subject to the restrictions on Transfers set forth in
Article VI, this Agreement shall bind and inure to the benefit of the Parties and their respective
permitted successors and assigns. Any reference in this Agreement to a specifically named Party
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shall be deemed to apply to any permitted successor and assign of such Party who has acquired
an interest in compliance with this Agreement or under law.
10.7 Survival. All representations made by Developer hereunder, Developer's
obligations pursuant to Sections 4.8, 5.1, 5.5, 5.7, 9.1 and 10.1, and City's rights under Section
8.8 and 8.9, and all other provisions that expressly so state, shall survive the expiration or
termination of this Agreement.
10.8 Headings; Interpretation; Statutory References. The section headings and
captions used herein are solely for convenience and shall not be used to interpret this Agreement.
The Parties acknowledge that this Agreement is the product of negotiation and compromise on
the part of both Parties, and the Parties agree, that since both Parties have participated in the
negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared
by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had
prepared it. All references in the City Documents to particular statutes, regulations, ordinances or
resolutions of the United States, the State of California, or the City of Santa Clarita shall be
deemed to include the same statute, regulation, ordinance or resolution as hereafter amended or
renumbered, or if repealed, to such other provisions as may thereafter govern the same subject.
10.9 Action or Approval. Whenever action and/or approval by City is required under
this Agreement, the City's Authorized Representative or his or her designee may act on and/or
approve such matter unless specifically provided otherwise, or unless the Authorized
Representative determines in his or her discretion that such action or approval requires referral to
the City Council for consideration.
10.10 Entire Agreement. This Agreement, including Exhibits A through C attached
hereto and incorporated herein by this reference, together with the other City Documents contains
the entire agreement between the Parties with respect to the subject matter hereof, and supersedes
all prior written or oral agreements, understandings, representations or statements between the
Parties with respect to the subject matter hereof. If the Exhibits to this Agreement are
inconsistent with this Agreement, the more restrictive requirements shall control, as determined
by the City's Authorized Representative. In the event of a conflict between this Agreement and
the other City Documents, the more restrictive requirements shall control, as determined by the
Authorized Representative.
10.11 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be an original and all of which taken together shall constitute one instrument. The
signature page of any counterpart may be detached therefrom without impairing the legal effect
of the signature(s) thereon provided such signature page is attached to any other counterpart
identical thereto having additional signature pages executed by the other Party. Any executed
counterpart of this Agreement may be delivered to the other Party by facsimile and shall be
deemed as binding as if an originally signed counterpart was delivered.
10.12 Severability. If any term, provision, or condition of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement
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shall continue in full force and effect unless an essential purpose of this Agreement is defeated
by such invalidity or unenforceability.
10.13 No Third -Party Beneficiaries. Except as expressly set forth herein, nothing
contained in this Agreement is intended to or shall be deemed to confer upon any person, other
than the Parties and their respective successors and assigns, any rights or remedies hereunder.
10.14 Parties Not Co -Venturers; Independent Contractor; No Agency Relationship.
Nothing in this Agreement is intended to or shall establish the Parties as partners, co -venturers,
or principal and agent with one another. The relationship of Developer and City shall not be
construed as a joint venture, equity venture, partnership or any other relationship. City neither
undertakes nor assumes any responsibility or duty to Developer (except as expressly provided in
this Agreement) or to any third party with respect to the Project. Developer and its employees
are not employees of City but rather are, and shall always be, considered independent
contractors. Furthermore, Developer and its employees shall at no time hold themselves out as
employees or agents of City. Except as City may specify in writing, Developer shall not have
any authority to act as an agent of City or to bind City to any obligation.
10.15 Time of the Essence; Calculation of Time Periods. Time is of the essence for
each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or event after
which the designated period of time begins to run is not to be included and the last day of the
period so computed is to be included, unless such last day is not a business day, in which event
the period shall run until the next business day. The final day of any such period shall be
deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement, a
"business day" means a day that is not a Saturday, Sunday, a federal holiday or a state holiday
under the laws of the State of California.
10.16 Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to principles of conflicts of
laws. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior
Court of Los Angeles County, California or in the Federal District Court for the Northern District
of California.
10.17 Inspection of Books and Records. Upon request, Developer shall permit the City
to inspect at reasonable times and on a confidential basis those books, records and all other
documents of Developer necessary to determine Developer's compliance with the terms of this
Agreement.
10.18 Political Activity. None of the funds, materials, property or services contributed
by City to Developer under this Agreement shall be used for any partisan political activity or the
election or defeat of any candidate for public office.
10.19 Non -Liability of City Officials, Employees and Agents. No member, official,
employee or agent of the City shall be personally liable to the Developer in the event of any
SF #4815-4977-2744 v5
default or breach by the City or for any amount which may become due to the Developer or its
successor or on any obligation under the terms of this Agreement.
10.20 Conflict of Interest.
(a) Except for approved eligible administrative or personnel costs, no person
described in subsection (b) below who exercises or has exercised any functions or
responsibilities with respect to the activities funded pursuant to this Agreement or who is in a
position to participate in a decision -making process or gain inside information with regard to
such activities, may obtain a personal or financial interest or benefit from the activity, or have an
interest in any contract, subcontract or agreement with respect thereto, or the proceeds
thereunder, either for themselves or those with whom they have family or business ties, during,
or at any time after, such person's tenure. The Developer shall exercise due diligence to ensure
that the prohibition in this Section is followed.
(b) In accordance with Government Code Section 1090 and the Political Reform Act,
Government Code Section 87100 et seq., no person who is a director, officer, partner, trustee or
employee or consultant of the Developer, or immediate family member of any of the preceding,
shall make or participate in a decision, made by the City or a City board, commission or
committee, if it is reasonably foreseeable that the decision will have a material effect on any
source of income, investment or interest in real property of that person or the Developer.
Interpretation of this Section shall be governed by the definitions and provisions used in the
Political Reform Act, Government Code Section 87100 et seq., its implementing regulations
manual and codes, and Government Code Section 1090.
SIGNATURES ON FOLLOWING PAGES.
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IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of
the date first written above.
DEVELOPER:
Family Promise of Santa Clarita Valley, a California not for profit public benefit corporation
By:
Print Name
Title:
CITY:
City of Santa Clarita, a municipal corporation
By:
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
, City Attorney
.N
SF #4815-4977-2744 v5
Exhibit A
LEGAL DESCRIPTION OF THE PROPERTY
(Attach legal description of the Property.)
Exhibit B
FORM OF AFFORDABLE HOUSING REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
(Attach form of Regulatory Agreement.)
Exhibit C
GRANT DEED
(Attach form of Grant Deed)
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SF #4815-4977-2744 v5
Fxhihit A
LEGAL DESCRIPTION OF THE PROPERTY
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described
as follows: LOT 52 OF TRACT NO. 2703, IN THE CITY OF SANTA CLARITA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28,
PAGE(S) 20 TO 26 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE SOUTHWESTERLY 20 FEET AS GRANTED TO THE STATE
OF CALIFORNIA PER THE DOCUMENT RECORDED JANUARY 21, 1975 AS
INSTRUMENT NO. 239, OFFICIAL RECORDS, IN SAID COUNTY RECORDERS OFFICE.
APN: 2833-016-037
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Santa Clarita
23920 Valencia Blvd., Suite 304
Santa Clarita, CA 91335
Attn: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE ��6103. 27383
Space above this line for Recorder's use.
AFFORDABLE HOUSING REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
by and between
THE CITY OF SANTA CLARITA
and
FAMILY PROMISE OF SANTA CLARITA VALLEY
SF #4821-6792-3144 v6
This Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants
(this "Agreement") is entered into effective as of , 20 ("Effective Date") by
and between the City of Santa Clarita, a municipal corporation ("City") and Family Promise of
Santa Clarita Valley, a California not for profit public benefit corporation ("Owner"). The City
and the Owner are collectively referred to herein as the "Parties."
RECITALS
A. Owner is the owner of the real property located in the City of Santa Clarita, Los
Angeles County, California, at 23652 Newhall Rd., known as Los Angeles County Assessor's
Parcel No. 2833-016-037, and more particularly described in Exhibit A attached hereto (the
"Property").
B. Owner intends to develop, own, and operate a transitional and affordable housing
development consisting of 4 units and a separate structure to house certain service facilities
related to and in support of transitional and affordable housing (the "Project") in accordance with
that certain Disposition and Development Agreement (the "DDA") dated as of
2020, and executed by and between City and Owner. Capitalized terms used without definition
herein shall have the meaning ascribed to such terms in the DDA.
C. The DDA provides that the Restricted Units to be developed on the Property will
be required to be available to Eligible Households as transitional housing or at Affordable Rents in
accordance with this Agreement in perpetuity.
D. The purpose of this Agreement is to satisfy the affordability requirements of the
City's affordable housing program and to regulate and restrict the occupancy and rents of the
Project's Restricted Units for the benefit of the Project occupants. The Parties intend the covenants set
forth in this Agreement to run with the land and to be binding upon Owner and Owner's successors
and assigns for the full term of this Agreement.
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows.
1. Definitions. The following terms have the meanings set forth in this Section wherever
used in this Agreement or the attached exhibits.
"Actual Household Size" means the actual number of persons in the applicable
household.
"Adjusted for Family Size Appropriate for the Unit" shall be determined consistent
with Section 50052.5(h) of the California Health and Safety Code, subject to the application of
SF #4821-6792-3144 v6
federal rules and regulations applicable to Project financing sources, including Section 42(g)(2) of
the Internal Revenue Code of 1986 as amended (or successor provision) if applicable.
"Affordable Rent" means the following amount, less a utility allowance and other fees
and charges required to be paid by tenants of the Project on a non -optional basis: The four (4)
units shall be restricted to households with incomes of not more than eighty percent (80%) of
AMI ("80% Units") and the monthly rent, if any, shall not exceed one -twelfth of thirty percent
(30%) of eighty percent (80%) of AMI, Adjusted for Family Size Appropriate for the Unit.
"Area Median Income" or "AMI" means the median income for Los Angeles
County, California, adjusted for Actual Household Size, as determined by HUD pursuant to
Section 8 of the United States Housing Act of 1937 and as published from time to time by
the State of California Department of Housing and Community Development ("HCD") in
Section 6932 of Title 25 of the California Code of Regulations or successor provision.
Clarita.
"City's Authorized Representative" means the City Manager of the City of Santa
"City Documents" means the DDA, the Assignment Agreement, and this Agreement.
"DDA" is defined in Recital B.
"Eligible Household" means a household for which household Gross Income upon initial
occupancy does not exceed the maximum income level for a Restricted Unit as specified in
Section 2.1.
"Gross Income" shall have the meaning set forth in Section 6914 of Title 25 of the
California Code of Regulations as such section may be revised from time to time.
"HUD" means the U.S. Department of Housing and Urban Development.
"Indemnitees" means, collectively, the City and its elected and appointed officers,
officials, employees, agents, consultants, contractors and representatives.
"Rent Restricted" is defined in Section 2.1.
"Restricted Unit" means a dwelling unit that is reserved for occupancy at an Affordable
Rent by Eligible Households of specified household income levels as set forth in Section 2.1.
2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for itself and its
successors and assigns, that the Property shall be used solely for the operation of a transitional
and affordable housing development in compliance with the DDA and the requirements set forth
in this Agreement. Owner represents and warrants that it has not entered into any agreement that
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SF #4821-6792-3144 v6
would restrict or compromise its ability to comply with the occupancy and affordability
restrictions set forth in this Agreement, and Owner covenants that it shall not enter into any
agreement that is inconsistent with such restrictions without the express written consent of City.
2.1 Affordability and Occupancy Requirements. Throughout the term of this
Agreement (as defined in Section 4.1 below): all of the units in the Project shall be both Rent
Restricted and occupied (or if vacant, available for occupancy) by Eligible Households whose
household Gross Income is no greater than eighty percent (80%) of AML A dwelling unit shall
qualify as "Rent Restricted" if the gross rent, if any, charged for such unit does not exceed the
Affordable Rent for the applicable household income category as specified in this Section.
Notwithstanding any contrary provision of this Agreement, if any of the Project lenders,
Project investors, or regulatory agencies restrict a greater number of units than restricted by this
Agreement or require stricter household income eligibility or affordability requirements than those
imposed hereby, the requirements (including without limitation, the rent and occupancy
requirements imposed in connection with the use of project based Section 8 vouchers, housing
choice vouchers, or other rent subsidies) of such other lenders, investors or regulatory agencies
shall prevail. Without limiting the generality of the foregoing, if any residential units in the
Project are subsidized with Section 8 project -based vouchers through a Housing Assistance
Payment Contract with HUD, the rules and regulations applicable to such program shall prevail
with respect to the setting of rents, implementation of occupancy requirements, and determination
of household Gross Income for such units. In the event that project -based rental assistance for
the Project is terminated, the Parties will meet and confer in good faith to address potential
revisions to the rent restrictions imposed by this Agreement if necessary to maintain Project
feasibility.
2.2 Rents for Restricted Units. For all Restricted Units, rents, if any, shall be limited
to Affordable Rents for households of the applicable income limit in accordance with Section 2.1.
The Restricted Units shall be allocated among affordability categories as set forth in Section 2.1.
Notwithstanding the foregoing, no tenant qualifying for a Restricted Unit shall be denied
continued occupancy of a unit in the Project because, after admission, such tenant's household
income increases to exceed the qualifying limit for such Restricted Unit. A household which at
initial occupancy qualifies in a particular income category shall be treated as continuing to be of
such income category so long as the household's Gross Income does not exceed one hundred
forty percent (140%) of the applicable income limit. In the event the household Gross Income of a
household that qualified at the applicable income limit at initial occupancy exceeds the applicable
income limit for a unit, that unit will continue to be considered as satisfying the applicable income
limit if the unit remains Rent -Restricted.
In the event that recertification of tenant incomes indicates that the number of Restricted
Units actually occupied by Eligible Households falls below the number reserved for each income
group as specified in this Section 2.2, Owner shall rectify the condition by renting the next
SF #4821-6792-3144 v6
available dwelling unit(s) in the Project to Eligible Household(s) until the required income mix is
achieved.
If upon income recertification, a tenant household's income exceeds 80% of AMI
Adjusted for Actual Household Size, Owner may increase rent for such tenant to the lowest of the
following: (a) 30% of the tenant household's Gross Income, (b) the maximum rent allowed under
any affordability restrictions imposed by other Project lenders, and (c) if the Project has been
allocated low-income housing tax credits, the maximum rent allowed by Section 42 of the Internal
Revenue Code of 1986.
In the event of inconsistency between the provisions of this Section 2.2 and the rules
applicable to the Project in connection with low-income housing tax credits, the rules applicable
to low-income housing tax credits shall prevail.
2.3 No Condominium Conversion. Owner shall not convert the residential units in the
Project to condominium or cooperative ownership or sell condominium or cooperative rights to the
residential units in the Project during the term of this Agreement.
2.4 Non -Discrimination; Compliance with Fair Housing Laws.
2.4.1 City of Santa Clarita Residents and Employees. In order to ensure that
there is an adequate supply of affordable housing within the City of Santa Clarita for residents and
employees of businesses within the City, to the extent permitted by law and consistent with the
program regulations for funding sources used for development of the Project, Owner shall give a
preference in the rental of the residential units in the Project to Eligible Households who live or
work in the City of Santa Clarita. Notwithstanding the foregoing, in the event of a conflict
between this provision and the provisions of Section 42 of the Internal Revenue Code of 1986, as
amended, or HUD regulations applicable to the Project (including without limitation,
requirements applicable to the Project due to any Section 8 rental subsidy contract), the
provisions of such Section 42 and HUD regulations and requirements shall control. Owner shall
comply with City's Affirmative Marketing Policies or other rental policies and procedures as they
may be amended from time to time to ensure that residents and people who work in Santa Clarita
are provided reasonable notice and opportunity to rent units in the Project.
2.4.2 Fair Housing. Owner shall comply with state and federal fair housing laws
in the marketing and rental of the units in the Project. Owner shall accept as tenants, on the same
basis as all other prospective tenants, seniors who are recipients of federal certificates or vouchers
for rent subsidies pursuant to the existing Section 8 program or any successor thereto.
2.4.3 Non -Discrimination. Owner shall not restrict the rental, sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on
the basis of race, color, religion, creed, sex, sexual orientation, gender identity, disability, marital
5
SF #4821-6792-3144 v6
status, ancestry, or national origin of any person. Owner covenants for itself and all persons
claiming under or through it, and this Agreement is made and accepted upon and subject to the
condition that there shall be no discrimination against or segregation of any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part
thereof, nor shall Owner or any person claiming under or through Owner 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, of,
or for the Property or part thereof. Owner shall include such provision in all deeds, leases,
contracts and other instruments executed by Owner, and shall enforce the same diligently and in
good faith.
All deeds, leases, and contracts pertaining to management of the Project, made or
entered into by Owner, its successors or assigns, as to any portion of the Property or the
Improvements shall contain the following language:
(a) (1) In Deeds, the following language shall appear:
Grantee herein covenants by and for itself, its successors and assigns, and all
persons claiming under or through it, that there shall be no discrimination against
or segregation of a person or of a group of persons on account of any basis listed
in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
property herein conveyed nor shall the grantee or any person claiming under or
through the grantee 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 property
herein conveyed. The foregoing covenant shall run with the land."
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
5 1. 11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions
(n), (o), and (p) of Section 12955 of the Government Code shall apply to
paragraph (1).
C*
SF #4821-6792-3144 v6
(b) (1) In Leases, the following language shall appear:
The lessee herein covenants by and for the lessee and lessee's heirs, personal
representatives and assigns, and all persons claiming under the lessee or through
the lessee, that this lease is made subject to the condition that there shall be no
discrimination against or segregation of any person or of a group of persons on
account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin, ancestry or disability in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the property herein leased nor shall the lessee
or any person claiming under or through the lessee establish or permit any such
practice or practices of discrimination of segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the property herein leased.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
5 1. 11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions
(n), (o), and (p) of Section 12955 of the Government Code shall apply to
paragraph (1).
(c) In Contracts pertaining to management of the Project, the following
language, or substantially similar language prohibiting discrimination and
segregation shall appear:
There shall be no discrimination against or segregation of any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section
12955.2 of the Government Code, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the property nor shall the transferee or any
person claiming under or through the transferee establish or permit any such
practice or practices of discrimination or segregation with reference to selection,
location, number, use or occupancy of tenants, lessee, subtenants, sublessees or
vendees of the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
SF #4821-6792-3144 v6
in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
5 1. 11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions
(n), (o), and (p) of Section 12955 of the Government Code shall apply to
paragraph (1).
3. Reporting Requirements; Access to Information; Inspections.
3.1 Tenant Certification. Owner or Owner's authorized agent shall obtain from each
household prior to initial occupancy of each Restricted Unit, and on every anniversary thereafter,
a written certificate containing all of the following in such format and with such supporting
documentation as City may reasonably require:
(i) The identity of each household member;
(ii) The total household Gross Income; and
(iii) The age of each household member or other basis upon which each household
member qualifies for occupancy under California Civil Code Section 51.3 et seq.
Owner shall retain such certificates for not less than three (3) years, and upon City's request, shall
provide copies of such certificates to City and make the originals available for City inspection.
3.2 Annual Report; Inspections. Following completion of construction of the Project,
by not later than March 1 of each year during the term of this Agreement, Owner shall submit an
annual report ("Annual Report") to the City in form satisfactory to City, together with a
certification that the Project is in compliance with the affordability restrictions and occupancy
requirements of this Agreement. The Annual Report shall, at a minimum, include the following
information for each dwelling unit in the Project: (i) unit number; (ii) number of bedrooms; (iii)
current rent and other charges; (iv) dates of any vacancies during the previous year; (v) number of
people residing in the unit; (vi) total household Gross Income of residents; (vii) documentation of
source of household income; (viii) lease commencement and termination dates, (ix) initial move -in
date, and (x) the information required by Section 3.1.
Owner shall include with the Annual Report, an income recertification for each household,
documentation verifying tenant eligibility, and such additional information as City may reasonably
request from time to time in order to demonstrate compliance with this Agreement. The Annual
Report shall conform to the format requested by City; provided however, during such time that
the Project is subject to a regulatory agreement restricting occupancy and/or rents pursuant to
requirements imposed in connection with the use of state or federal low-income housing tax
credits or tax-exempt bond financing, Owner may satisfy the requirements of this Section that
SF #4821-6792-3144 v6
pertain to tenant income certification and rents by providing City with a copy of compliance
reports required in connection with such financing.
In addition to the information described above, the Annual Report shall include the
information on the status of the waiting list for units, including the number of households on the
list and the number of City of Santa Clarita residents and persons employed in the City on the list.
City may from time to time request additional or different information to be provided in the
Annual Report, and Owner shall promptly supply such information in the reports required
hereunder.
3.3. Maintenance of Records.
3.3.1 Owner shall maintain all records regarding the construction of the Project
for five (5) years after final payment and all other pending matters are closed. Owner shall also
maintain tenant leases, income certifications and other matters related to the leasing of the
affordable units for a period of three (3) years after the final date of occupancy by the tenant.
3.3.2 Records must be kept accurate and up-to-date. City shall notify Owner of
any records it deems insufficient. Owner shall have fifteen (15) calendar days from such notice to
correct any specified deficiency in the records, or, if more than fifteen (15) days shall be
reasonably necessary to correct the deficiency, Owner shall begin to correct the deficiency within
fifteen (15) days and diligently pursue the correction of the deficiency as soon as reasonably
possible.
3.4 Access to Records; Inspections.
3.4.1 With at least 48-hours' notice, during normal business hours, Owner shall
provide City and its authorized agents and representatives access to any books, documents,
papers and records of the Project for the purpose of making audits, examinations, excerpts and
transcriptions.
3.4.2 With at least 48-hours' notice, during normal business hours and as often
as may be deemed necessary, City and its authorized agents and representatives shall be permitted
access to and the right to examine the Project and the Property and to interview tenants and
employees of the Project, for the purpose of verifying compliance with applicable regulations and
compliance with the conditions of this Agreement and the other City Documents.
4. Term of Agreement.
4.1 Term of Restrictions. This Agreement shall remain in effect in perpetuity.
4.2 Effectiveness Succeeds Conveyance of Property. This Agreement shall remain
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effective and fully binding for the full term hereof regardless of any sale, assignment, transfer, or
conveyance of the Project or the Property, or any part thereof or interest therein.
4.3 Reconveyance. Upon the termination of this Agreement, the Parties agree to
execute and record appropriate instruments to release and discharge this Agreement; provided,
however, the execution and recordation of such instruments shall not be necessary or a
prerequisite to the termination of this Agreement upon the expiration of the term.
5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby subjects its
interest in the Property and the Project to the covenants and restrictions set forth in this
Agreement. The City and Owner hereby declare their express intent that the covenants and
restrictions set forth herein shall be deemed covenants running with the land and shall be binding
upon and inure to the benefit of the heirs, administrators, executors, successors in interest,
transferees, and assigns of Owner and City, regardless of any sale, assignment, conveyance or
transfer of the Property, the Project or any part thereof or interest therein. Any successor -in -interest to
Owner, including without limitation any purchaser, transferee or lessee of the Property or the
Project (other than the tenants of the individual dwelling units within the Project) shall be subject
to all of the duties and obligations imposed hereby for the full term of this Agreement. Each and
every contract, deed, ground lease or other instrument affecting or conveying the Property or the
Project or any part thereof, shall conclusively be held to have been executed, delivered and
accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless
of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed,
ground lease or other instrument. If any such contract, deed, ground lease or other instrument
has been executed prior to the date hereof, Owner hereby covenants to obtain and deliver to City
an instrument in recordable form signed by the parties to such contract, deed, ground lease or
other instrument pursuant to which such parties acknowledge and accept this Agreement and
agree to be bound hereby. Owner agrees for itself and for its successors that in the event that a
court of competent jurisdiction determines that the covenants herein do not run with the land,
such covenants shall be enforced as equitable servitudes against the Property and the Project in
favor of City.
6. Property Management; Repair and Maintenance; Marketing.
6.1 Management Responsibilities. Owner shall be responsible for all management
functions with respect to the Property and the Project, including without limitation the
selection of tenants, certification and recertification of household income and eligibility,
evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary
repairs, replacement of capital items, and security. City shall have no responsibility for
management or maintenance of the Property or the Project.
6.2 Management Entity. City shall have the right to review and approve the
qualifications of the management entity proposed by Owner for the Project, and shall have the
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right to review and approve any agreement executed between Owner and the management entity,
which approval shall not be unreasonably withheld. The contracting of management services to
a management entity shall not relieve Owner of its primary responsibility for proper performance
of management duties. City hereby approves Family Promise of Santa Clarita Valley, a California
no to for profit public benefit corporation, as the initial management entity for the Project. Any
subsequent management entity shall be subject to City review and approval, which shall not be
unreasonably withheld or delayed. Upon City determination and delivery of written notice to
Owner that Owner has failed to operate the Project in accordance with this Agreement, subject to
any applicable cure period and the approval of the Project lenders and equity investors, City may
require Owner to contract with a qualified management agent selected by City and approved by
the Project lender and equity investor, to operate the Project, or to make such other arrangements
as City deems necessary to ensure performance of the required functions.
6.3 Repair, Maintenance and Security. Throughout the term of this Agreement,
Owner shall at its own expense, maintain the Property and the Project in good physical condition,
in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity
with all applicable state, federal, and local laws, ordinances, codes, and regulations. Without
limiting the foregoing, Owner agrees to maintain the Project and the Property (including without
limitation, the residential units, common areas, meeting rooms, landscaping, driveways, parking
areas and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping,
graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable
steps to prevent the same from occurring on the Property or at the Project. Owner shall prevent
and/or rectify any physical deterioration of the Property and the Project and shall make all
repairs, renewals and replacements necessary to keep the Property and the improvements
located thereon in good condition and repair. Owner shall provide adequate security
measures for the Project, including without limitation, the installation of adequate lighting and
deadbolt locks.
6.3.1 Additional Requirements. All construction work and professional services
for the Project shall be performed by persons or entities licensed or otherwise authorized to
perform the applicable work or service in the State of California and shall have a current City of
Santa Clarita business license if required under local law. To the extent allowed by state and
federal laws, Owner shall limit the installation of satellite dish, antenna and other such equipment
to screened locations on the Property as approved by the City. Owner shall diligently work to
resolve complaints related to noise, parking, litter or other neighborhood concerns.
6.4 City's Right to Perform Maintenance. In the event that Owner breaches any of the
covenants contained in Section 6.3, and such default continues for a period of ten (10) days after
written notice from City (with respect to graffiti, debris, and waste material) or thirty (30) days
after written notice from City (with respect to landscaping, building improvements and general
maintenance), then City, in addition to any other remedy it may have under this Agreement or at
law or in equity, shall have the right, but not the obligation, to enter upon the Property and
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perform all acts and work necessary to protect, maintain, and preserve the improvements and the
landscaped areas on the Property. All costs expended by City in connection with the foregoing,
shall be paid by Owner to City upon demand. All such sums remaining unpaid thirty (30) days
following delivery of City's invoice therefor shall bear interest at the lesser of 10% per annum or
the highest rate permitted by applicable law.
6.5 Fees, Taxes, and Other Levies. Owner shall be responsible for payment of all fees,
assessments, taxes, charges, liens and levies applicable to the Property or the Project, including
without limitation possessory interest taxes, if applicable, imposed by any public entity, and shall
pay such charges prior to delinquency. However, Owner shall not be required to pay any such
charge so long as (a) Owner is contesting such charge in good faith and by appropriate
proceedings, (b) Owner maintains reserves adequate to pay any contested liabilities, and (c) on
final determination of the proceeding or contest, Owner immediately pays or discharges any
decision or judgment rendered against it, together with all costs, charges and interest. The
foregoing is not intended to impair Owner's ability to apply for any applicable exemption from
property taxes or other assessments and fees.
6.6 Insurance Coverage. Throughout the term of this Agreement Owner shall comply
with the insurance requirements set forth in Exhibit B, and shall, at Owner's expense, maintain in full
force and effect insurance coverage as specified in Exhibit B.
6.7 Property Damage or Destruction. If any part of the Project is damaged or
destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent
restriction requirements set forth in this Agreement. Such work shall be commenced as soon
as reasonably practicable after the damage or loss occurs and shall be completed within one year
thereafter or as soon as reasonably practicable, provided that insurance proceeds are available to
be applied to such repairs or restoration within such period and the repair or restoration is
financially feasible. During such time that lenders or low-income housing tax credit investors
providing financing for the Project impose requirements that differ from the requirements of this
Section the requirements of such lenders and investors shall prevail.
7. Recordation; Subordination. This Agreement shall be recorded in the Official Records of
Los Angeles County. The City agrees that the City will not withhold consent to reasonable
requests for subordination of this Agreement to deeds of trust provided for the benefit of lenders
identified in the financing plan submitted to, and approved by, City for the Project, as such plan
may be updated with City approval, provided that the instruments effecting such subordination
include reasonable protections to the City in the event of default, including without limitation,
extended notice and cure rights.
8. Transfer and Encumbrance.
8.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement,
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except as permitted pursuant to the DDA or this Agreement, Owner shall not directly or
indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial
sale, transfer, conveyance, assignment or lease (collectively, "Transfer") of the whole or any part
of the Property, the Project, or the improvements located on the Property, without the prior
written consent of the City, which approval shall not be unreasonably withheld. In addition, prior
to the expiration of the term of this Agreement, except as expressly permitted by this Agreement
or the DDA, Owner shall not undergo any significant change of ownership without the prior
written approval of City. For purposes of this Agreement, a "significant change of ownership"
shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in
aggregate of the present ownership and /or control of Owner, taking all transfers into account on
a cumulative basis; provided however, neither the admission of an investor limited partner, nor the
transfer by the investor limited partner to subsequent limited partners shall be restricted by this
provision.
8.2 Requirements for Proposed Transfers. The City may, in the exercise of its sole
discretion, consent to a proposed Transfer of this Agreement, the Property, the Improvements or
part thereof if all of the following requirements are met:
(i) The proposed transferee demonstrates to the City's satisfaction that it has
the qualifications, experience and financial resources necessary and adequate as may be reasonably
determined by the City to competently complete and manage the Project and to otherwise fulfill
the obligations undertaken by the Owner under this Agreement.
(ii) The Owner and the proposed transferee shall submit for City review and
approval all instruments and other legal documents proposed to effect any Transfer of all or any
part of or interest in the Property, the Improvements or this Agreement together with such
documentation of the proposed transferee's qualifications and development capacity as the City
may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and
obligations of the Owner under this Agreement and the other City Documents arising after the
effective date of the Transfer and all obligations of Owner arising prior to the effective date of the
Transfer (unless Owner expressly remains responsible for such obligations) and shall agree to be
subject to and assume all of Owner's obligations pursuant to the Conditions of Approval and all
other conditions, and restrictions set forth in this Agreement.
(iv) The Transfer shall be effectuated pursuant to a written instrument
satisfactory to the City in form recordable in the Official Records.
Consent to any proposed Transfer may be given by the City's Authorized Representative
unless the City's Authorized Representative, in his or her discretion, refers the matter of approval
to the City Council. If the City has not rejected a proposed Transfer or requested additional
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information regarding a proposed Transfer in writing within forty-five (45) days following City's
receipt of written request by Owner, the proposed Transfer shall be deemed approved.
8.3 Effect of Transfer without City Consent. In the absence of specific written
agreement by the City, no Transfer of the Property or the Project shall be deemed to relieve the
Owner or any other party from any obligation under this Agreement. It shall be an Event of
Default hereunder entitling City to pursue remedies, if without the prior written approval of the
City, Owner assigns or Transfers this Agreement, the Improvements, or the Property in violation
of Section 8.
8.4 Recovery of City Costs. Owner shall reimburse City for all reasonable City costs,
including but not limited to reasonable attorneys' fees, incurred in reviewing instruments and
other legal documents proposed to effect a Transfer under this Agreement and in reviewing the
qualifications and financial resources of a proposed successor, assignee, or transferee within ten
(10) days following City's delivery to Owner of an invoice detailing such costs; provided
however, and (i) reimbursement of City costs incurred in connection with review of Transfers
proposed to be implemented prior to or concurrently with the Close of Escrow (as defined in the
DDA) shall be included within the reimbursement limit set forth in Section 6.5 of the DDA.
8.5 Encumbrances. Owner agrees to cooperate with City in good faith to ensure that
all deeds of trust or other security instruments and any applicable subordination agreement
recorded against the Property, the Project or part thereof for the benefit of a lender other than
City ("Third -Party Lender") shall contain each of the following provisions: (i) Third -Party
Lender shall use its best efforts to provide to City a copy of any notice of default issued to Owner
concurrently with provision of such notice to Owner; and (ii) City shall have the reasonable right,
but not the obligation, to cure any default by Owner within the same period of time provided to
Owner for such cure extended by an additional ninety (90) days. Owner agrees to provide to City
a copy of any notice of default Owner receives from any Third -Party Lender within three (3)
business days following Owner's receipt thereof.
8.6 Mortgagee Protection. No violation of any provision contained herein shall defeat
or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon
all or any portion of the Project or the Property, and the purchaser at any trustee's sale or
foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the
acquisition of title by such purchaser. Such purchaser shall be bound by and subject to this
Agreement from and after such trustee's sale or foreclosure sale. Promptly upon determining that
a violation of this Agreement has occurred, City shall give written notice to the holders of record
of any mortgages or deeds of trust encumbering the Project or the Property that such violation
has occurred.
9. Default and Remedies.
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9.1 Events of Default. The occurrence of any one or more of the following events
shall constitute an event of default hereunder ("Event of Default"):
(i) The occurrence of a Transfer in violation of Section 8 hereof,
(ii) Owner ceases for more than 90 days operation (i) of the Project as a
transitional or affordable housing project, subject to affordability and occupancy restrictions in
accordance with this Agreement; and/or (ii) of program services in support of transitional and
affordable housing;
(iii) Owner's failure to maintain insurance on the Property and the Project as
required hereunder, and the failure of Owner to cure such default within five (5) days;
(iv) Subject to Owner's right to contest the following charges, Owner's failure
to pay taxes or assessments due on the Property or the Project or failure to pay any other charge
that may result in a lien on the Property or the Project, and Owner's failure to cure such default
within twenty (20) days of delinquency, but in all events prior to the date upon which the holder
of any such lien has the right to foreclose thereon;
(v) A default arises under any loan secured by a mortgage, deed of trust or
other security instrument recorded against the Property and remains uncured beyond any
applicable cure period such that the holder of such security instrument has the right to accelerate
repayment of such loan;
(vi) A default arises under the DDA or the Assignment Agreement and remains
uncured beyond the expiration of any applicable cure period; or
(vii) Owner's default in the performance of any term, provision or covenant
under this Agreement (other than an obligation enumerated in this Section 9.1), and unless such
provision specifies a shorter cure period for such default, the continuation of such default for
thirty (30) days following the date upon which City shall have given written notice of the default
to Owner, or if the nature of any such non -monetary default is such that it cannot be cured within
thirty (30) days, Owner's failure to commence to cure the default within thirty (30) days and
thereafter prosecute the curing of such default with due diligence and in good faith to completion.
The limited partners of Owner shall have the right to cure any default of Owner hereunder
upon the same terms and conditions afforded to Owner; provided however, if the default is of
such nature that the limited partners reasonably determine that it is necessary to replace the
general partner of Owner in order to cure such default, then the cure period shall be extended by
an additional sixty (60) days after the removal and replacement of such general partner, provided
that the limited partners have promptly commenced and diligently proceeded with all requisite
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actions to effect such removal and replacement. City shall provide a copy of any notice of default
hereunder to the limited partners at the address set forth in Section 11.3 hereof, or to such other
address provided to the City in writing, concurrently with the provision of such notice to Owner.
9.2 Remedies. Upon the occurrence of an Event of Default and its continuation
beyond any applicable cure period, City may proceed with any of the following remedies:
(i) Bring an action for equitable relief seeking the specific performance of the terms
and conditions of this Agreement, and/or enjoining, abating, or preventing any
violation of such terms and conditions, and/or seeking declaratory relief,
(ii) For violations of obligations with respect to rents for Restricted Units, impose a
charge in an amount equal to the actual amount collected in excess of the
Affordable Rent; or
(iii) Pursue any other remedy allowed under the City Documents or at law or in equity.
Each of the remedies provided herein is cumulative and not exclusive. The City may
exercise from time to time any rights and remedies available to it under applicable law or in
equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this
Agreement.
10. Indemnity. To the greatest extent permitted by law, Owner shall indemnify, defend (with
counsel approved by City) and hold the Indemnitees harmless from and against all Claims arising
directly or indirectly, in whole or in part, as a result of or in connection with Owner's
construction, management, or operation of the Property and the Project or any failure to perform
any obligation as and when required by this Agreement. Owner's indemnification obligations
under this Section 10 shall not extend to Claims to the extent resulting from the gross negligence
or willful misconduct of Indemnitees. The provisions of this Section 10 shall survive the
expiration or earlier termination of this Agreement. City does not and shall not waive any rights
against Owner that it may have by reason of any indemnity and hold harmless provision set forth
in this Agreement because of the acceptance by City, or the deposit with City by Owner, of any of
the insurance policies described in this Agreement.
10.1 Terms Applicable to Indemnity Provisions. The terms set forth in this Section 10.1
shall apply to all provisions of this Agreement that pertain to Owner's obligations to indemnify
City and the other Indemnitees. In connection with each such provision, all of the following shall
apply:
(a) City does not and shall not waive any rights against Owner that it may have by
reason of any indemnity and hold harmless provision set forth in this Agreement because of the
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acceptance by City, or the deposit with City by Owner, of any of the insurance policies described
in this Agreement.
(b) Owner's obligation to indemnify the Indemnitees shall not be limited or impaired
by any of the following: (i) any amendment or modification of any City Document; (ii) any
extensions of time for performance required by any City Document; (iii) the accuracy or
inaccuracy of any representation and warranty made by Owner under this Agreement or by Owner
or any other party under any City Document, and (iv) the release of Owner or any other person,
by City or by operation of law, from performance of any obligation under any City Document.
(c) The obligations of Owner to indemnify the Indemnitees shall survive the term of
this Agreement.
11. Miscellaneous.
11.1 Amendments. This Agreement may be amended or modified only by a written
instrument signed by both Parties.
11.2 No Waiver. Any waiver by City of any term or provision of this Agreement must
be in writing. No waiver shall be implied from any delay or failure by City to take action on any
breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable
law. No failure or delay by City at any time to require strict performance by Owner of any
provision of this Agreement or to exercise any election contained herein or any right, power or
remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach
of the same or any other provision hereof or a relinquishment for the future of such election.
11.3 Notices. Except as otherwise specified herein, all notices to be sent pursuant to
this Agreement shall be made in writing, and sent to the Parties at their respective addresses
specified below or to such other address as a Party may designate by written notice delivered to
the other parties in accordance with this Section. All such notices shall be sent by: (i) personal
delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return
receipt requested, in which case notice shall be deemed delivered upon receipt if delivery is
confirmed by a return receipt; or (iii) nationally recognized overnight courier, with charges
prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery
is confirmed by the delivery service.
City: City of Santa Clarita
23920 Valencia Blvd., Suite 304
Santa Clarita, CA 91355
Attention: City Manager
Owner: Family Promise of Santa Clarita Valley
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Attention: Executive Director
11.4 Further Assurances. The Parties shall execute, acknowledge and deliver to the
other such other documents and instruments, and take such other actions, as either shall
reasonably request as may be necessary to carry out the intent of this Agreement.
11.5 Parties Not Co -Venturers; Independent Contractor; No Agency Relationship.
Nothing in this Agreement is intended to or shall establish the Parties as partners, co -venturers, or
principal and agent with one another. The relationship of Owner and City shall not be construed
as a joint venture, equity venture, partnership or any other relationship. City neither undertakes
nor assumes any responsibility or duty to Owner (except as expressly provided in this Agreement)
or to any third party with respect to the Project. Owner and its employees are not employees of
City but rather are, and shall always be considered independent contractors. Furthermore, Owner
and its employees shall at no time pretend to be or hold themselves out as employees or agents of
City. Except as City may specify in writing, Owner shall not have any authority to act as an agent
of City or to bind City to any obligation.
11.6 Action by the City. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, consent or request by the City is required or permitted
under this Agreement, such action shall be in writing, and such action may be given, made or
taken by the City's Authorized Representative or by any person who shall have been designated
by the City's Authorized Representative, without further approval by the City Council.
11.7 Non -Liability of City and City Officials, Employees and Agents. No member,
official, employee or agent of the City shall be personally liable to Owner or any successor in
interest, in the event of any default or breach by the City, or for any amount of money which may
become due to Owner or its successor or for any obligation of City under this Agreement.
11.8 Headings; Construction; Statutory References. The headings of the sections and
paragraphs of this Agreement are for convenience only and shall not be used to interpret this
Agreement. The language of this Agreement shall be construed as a whole according to its fair
meaning and not strictly for or against any Party. All references in this Agreement to particular
statutes, regulations, ordinances or resolutions of the United States, the State of California, or the
City of Santa Clarita shall be deemed to include the same statute, regulation, ordinance or
resolution as hereafter amended or renumbered, or if repealed, to such other provisions as may
thereafter govern the same subject.
11.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
W.
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11.10 Governing Law; Venue. This Agreement shall be construed in accordance with
the laws of the State of California without regard to principles of conflicts of law. Any action to
enforce or interpret this Agreement shall be filed and heard in the Superior Court of Los Angeles
County, California or in the Federal District Court for the Southern District of California.
11.11 Attorneys' Fees and Costs. If any legal or administrative action is brought to
interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all
reasonable attorneys' fees and costs incurred in such action.
11.12 Severability. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of
the remaining provisions shall not be affected or impaired thereby.
11.13 Entire Agreement; Exhibits. This Agreement, together with the DDA and the
Assignment Agreement contains the entire agreement of Parties with respect to the subject matter
hereof, and supersedes all prior oral or written agreements between the Parties with respect
thereto. Exhibits A and B, attached hereto are incorporated herein by this reference.
11.14 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
SIGNATURES ON FOLLOWING PA GEM.
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IN WITNESS WHEREOF, the Parties have executed this Affordable Housing Regulatory
Agreement and Declaration of Restrictive Covenants as of the date first written above.
CITY:
CITY OF SANTA CLARITA, a California municipal corporation
ATTEST:
in
, City Manager
City Clerk
APPROVED AS TO FORM:
City Attorney
OWNER:
FAMILY PROMISE OF SANTA CLARITA VALLEY
By:
Print Name:
Title:
SIGNATURES MUST BE NOTARIZED.
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
ss
County of )
On , before me
(Name of Notary)
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
ss
County of )
On , before me
(Name of Notary)
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
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Exhibit A
LEGAL DESCRIPTION OF THE PROPERTY
The land referred to is situated in the County of Los Angeles, City of Santa Clarita, State of
California, and is described as follows:
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described as
follows: LOT 52 OF TRACT NO. 2703, IN THE CITY OF SANTA CLARITA, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28,
PAGE(S) 20 TO 26 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
EXCEPT THEREFROM THE SOUTHWESTERLY 20 FEET AS GRANTED TO THE STATE
OF CALIFORNIA PER THE DOCUMENT RECORDED JANUARY 21, 1975 AS
INSTRUMENT NO. 239, OFFICIAL RECORDS, IN SAID COUNTY RECORDERS OFFICE.
APN: 2833-016-037
APN: 2833-016-037
23
SF #4821-6792-3144 v6
Exhibit B
INSURANCE REQUIREMENTS
Prior to initiating work on the Project and continuing throughout the term of this
Agreement, Owner shall obtain and maintain the following policies of insurance and shall comply
with all provisions set forth in this Exhibit.
I. General Requirements. Project construction shall not commence until Owner shall have
obtained all insurance required under this Section and such insurance shall have been approved by
the City Attorney as to form and carrier and the City Manager or his designee as to sufficiency, nor
shall Owner allow any contractor or subcontractor to commence work on the Project until all
insurance required of the Owner and/or contractor or subcontractor shall have been so obtained
and approved. All requirements herein provided shall appear either in the body of the insurance
policies or as endorsements, and shall specifically bind the insurance carrier.
Owner shall procure and maintain the following insurance providing coverage against claims for
injuries to persons or damages to property that may arise from or in connection with the
development, construction, management, or operation of the Project by the Owner or the Owner's
agents, representatives, employees and contractors, or subcontractors, including the following:
(a) Commercial General Liabilitv: The Owner (and until issuance of the final certificate
of occupancy or equivalent for the Project all contractors working on behalf of Owner on the
Project) shall maintain a commercial general liability policy in an occurrence policy for protection
against all claims arising from injury to person or persons not in the employ of the Owner and
against all claims resulting from damage to any property due to any act or omission of the Owner,
its agents, or employees in the conduct or operation of the work or the execution of this
Agreement. Such insurance shall include products and completed operations liability, blanket
contractual liability, personal injury liability, and broad form property damage coverage. Coverage
shall be at least as broad as Insurance Services Office Commercial General Liability coverage.
(b) Commercial Automobile Liabilitv: The Owner (and until issuance of the final
certificate of occupancy or equivalent for the Project all contractors working on behalf of Owner
on the Project) shall maintain insurance for protection against all claims arising from the use of
vehicles, owned, hired, non -owned, or any other vehicle in connection with the development,
construction, operation or management of the Project. Such insurance shall cover the use of
automobiles and trucks on and off the site of the Property. Coverage shall be at least as broad as
Insurance Services Office covering Commercial Automobile Liability, any auto, owned, non -
owned and hired auto.
(c) Workers' Compensation Insurance: The Owner (and the general partners thereof)
24
SF #4821-6792-3144 v6
shall furnish or cause to be furnished to City evidence satisfactory to City that Owner (and the
general partners thereof), and any contractor with whom Owner has contracted for the
performance of work on the Property or otherwise pursuant to this Agreement, shall maintain
Workers' Compensation Insurance as required by the State of California and Employer's Liability
Insurance.
(d) Builder's Risk: Upon commencement of construction work and continuing until
issuance of the final certificate of occupancy or equivalent for the Project, Owner and all
contractors working on behalf of Owner shall maintain a policy of builder's all-risk insurance in an
amount not less than the full insurable cost of the Project on a replacement cost basis naming City
as loss payee as its interests may appear.
(e) Professional Liability/Errors and Omissions: Owner shall require the Project
architect, engineer, and general contractor to maintain Professional Liability/Errors and Omissions
insurance with limits not less than Two Million Dollars ($2,000,000) each claim. Certificates
evidencing this coverage must reference both the Owner and the Indemnitees. If the professional
liability/errors and omissions insurance is written on a claims made form: (i) the retroactive date
must be shown and must be before the Effective Date, (ii) insurance must be maintained and
evidence of insurance must be provided for at least three (3) years after completion of Project
construction, and (iii) if coverage is cancelled or non -renewed and not replaced with another
claims made policy form with a retroactive date prior to the Effective Date, Owner must purchase,
or require the provision of, extended period coverage for a minimum of three (3) years after
completion of construction.
(f) Property: Commencing upon completion of construction of the Project, Owner
shall maintain property insurance covering all risks of loss, including earthquake and flood (if
required) for 100% of the replacement value of the Project with deductible, if any, in an amount
acceptable to City, naming City as loss payee as its interests may appear.
(g) Pollution Legal Liability Insurance: Owner shall require the contractor to carry
pollution liability insurance to provide third -party coverage for bodily injury, property damage,
cleanup, and related defense costs.
2. Minimum Limits; Adjustments. Insurance shall be maintained with limits no less than the
following:
(a) Commercial General Liability and Property Damage: $2,000,000 per occurrence
and $5,000,000 annual aggregate for bodily injury, personal injury and property damage; provided
however, with City's advance written approval, subcontractors may maintain liability coverage
with limits not less than $1,000,000 per occurrence, $2,000,000 annual aggregate.
(b) Products and Completed Operations: $3,000,000 per occurrence/aggregate.
25
SF #4821-6792-3144 v6
(c) Commercial Automobile Liability: $2,000,000 combined single limit.
(d) Employer's Liability:
Bodily Injury by Accident - $1,000,000 each accident.
Bodily Injury by Disease - $1,000,000 policy limit.
Bodily Injury by Disease - $1,000,000 each employee.
(e) Professional Liability/Errors and Omissions: $2,000,000 per occurrence or claim. If
the policy provides coverage on a claims -made basis, the retroactive date must be shown and must
be before the date of the Agreement or the beginning of the contract work.
(f) Pollution Liability Insurance: Contractors' pollution legal liability with limits no less
than $1,000,000 per occurrence or claim and $2,000,000 policy aggregate. If the policy provides
coverage on a claims -made basis, the retroactive date must be shown and must be before the date
of the Agreement or the beginning of the contract work.
Coverage limits, and if necessary, the terms and conditions of insurance, shall be reasonably
adjusted from time to time (not less than every five (5) years after the Effective Date nor more than
once in every three (3) year period) to address changes in circumstance, including, but not limited
to, changes in inflation and the litigation climate in California. City shall give written notice to
Owner of any such adjustments, and Owner shall provide City with amended or new insurance
certificates or endorsements evidencing compliance with such adjustments within thirty (30) days
following receipt of such notice.
3. Deductibles and Self -Insured Retention. Any deductibles or self -insured retention must be
declared to, and approved by, the City. Payment of all deductibles and self -insured retentions will
be the responsibility of Owner. If the City determines that such deductibles or retentions are
unreasonably high, either the insurer shall reduce or eliminate such deductibles or self-insurance
retentions as respects the Indemnitees or Owner shall procure a bond guaranteeing payment of
losses and related investigations, claims administration and defense.
4. Additional Requirements. The required general liability and automobile policies shall
contain, or be endorsed to contain, the following provisions:
a. The Indemnitees are to be covered as Additional Insureds as respects: liability
arising out of activities performed by or on behalf of the Owner; products and completed
operations of the Owner; premises owned, occupied or used by the Owner; or automobiles
owned, leased, hired or borrowed by the Owner. The coverage shall contain no special
limitations on the scope of protection afforded to the Indemnitees. Additional insured
endorsements for the general liability coverage shall use Insurance Services Office (ISO) Form
No. CG 20 09 11 85 or CG 20 10 11 85, or equivalent, including (if used together) CG 2010
10 01 and CG 2037 10 01; but shall not use the following forms: CG 20 10 10 93 or 03 94.
26
SF #4821-6792-3144 v6
b. All insurance shall be primary insurance as respects the Indemnitees. Any insurance
or self-insurance maintained by the Indemnitees shall be excess of the Owner's/contractor's
insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect coverage provided to the Indemnitees.
d. The Owner's insurance shall apply separately to each insured against whom claim is
made or suit is brought except, with respect to the limits of the insurer's liability.
e. Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in
limits except after thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the City.
f. If any insurance policy or coverage required hereunder is canceled or reduced,
Owner shall, within five (5) days after receipt of notice of such cancellation or reduction in
coverage, but in no event later than the effective date of cancellation or reduction, file with
City a certificate showing that the required insurance has been reinstated or provided through
another insurance company or companies. Upon failure to so file such certificate, City may,
without further notice and at its option, procure such insurance coverage at Owner's expense,
and Owner shall promptly reimburse City for such expense upon receipt of billing from City.
g. Owner agrees to waive subrogation rights for commercial general liability,
automobile liability and worker's compensation against Indemnitees regardless of the
applicability of any insurance proceeds, and to require all contractors, subcontractors or others
involved in any way with the Services to do likewise. Each insurance policy shall contain a
waiver of subrogation for the benefit of City. If any required insurance is provided under a
form of coverage that includes an annual aggregate limit or provides that claims investigation
or legal defense costs are included in such annual aggregate limit, such annual aggregate limit
shall be three times the applicable occurrence limits specified above.
h. It shall be a requirement under this Agreement that any available insurance proceeds
broader than or in excess of the specified minimum insurance coverage requirement and/or
limits shall be available to the additional insured. Furthermore, the requirement for coverage
and limits shall be (1) the minimum coverage and limits specified in this Agreement, or (2) the
broader coverage and maximum limits of coverage of any insurance policy or proceeds
available to the named insured; whichever is greater. For all liability insurance required by this
Agreement, Owner (and Owner's contractors, as applicable) shall obtain endorsements that
name the Indemnitees as additional insured in the full amount of all applicable policies,
notwithstanding any lesser minimum limits specified in this Agreement. This Agreement
requires Owner (and Owner's contractors) to obtain and provide for the benefit of the
27
SF #4821-6792-3144 v6
Indemnitees, additional insured coverage in the same amount of insurance carried by Owner (or
Owner's contractors, as applicable), but in no event less than the minimum amounts specified
in this Agreement. In the event that Owner (or Owner's contractors as applicable) obtains
insurance policies that provide liability coverage in excess of the amounts specified in this
Agreement, the actual limits provided by such policies shall be deemed to be the amounts
required under this Agreement. Without limiting the foregoing, the limits of liability coverage
specified in this Agreement are not intended, nor shall they operate, to limit City's ability to
recover amounts in excess of the minimum amounts specified in this Agreement.
i. The limits of insurance required in this Agreement may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess insurance
shall contain or be endorsed to contain a provision that such coverage shall also apply on a
primary and non-contributory basis for the benefit of the City before the City's own insurance
or self-insurance shall be called upon to protect it as a named insured.
5. Acceptability of Insurers. Companies writing the insurance required hereunder shall be
licensed to do business in the State of California. Insurance is to be placed with insurers with a
current A.M. Best's rating of no less than A: VII.
6. Verification of Coverage. Prior to the Effective Date of this Agreement, Owner shall
furnish City with certificates of insurance in form acceptable to City evidencing the insurance
coverage required under paragraphs (a), (b), (c), and (e) of Section 1 above, duly executed
endorsements evidencing the Indemnitees' status as additional insured, and all other endorsements
and coverage required hereunder pertaining to such coverage. Prior to commencement of
construction work, Owner shall furnish City with certificates of insurance in form acceptable to
City evidencing the insurance coverage required under paragraphs (d) and (g) of Section 1 above.
Prior to City's issuance of a final certificate of occupancy or equivalent for the Project, Owner
shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance
coverage required under paragraph (f) of Section 1 above. Owner shall furnish the City with
original endorsements effecting coverage required by this clause. The endorsements are to be
signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are
to be received and approved by the City before the Services commence.
7. Insurance Certificates and Endorsements. Owner shall provide to City all the necessary
insurance documents, including the applicable amendatory endorsements (or copies of the
applicable policy language effecting coverage required by this clause) and a copy of the
Declarations and Endorsement Page of required Owner policies listing all required policy
endorsements to the City. Insurance Certificates and Endorsements are to be received and
approved by the City within the time periods specified in Section 6 above. Should Owner cease to
have insurance as required at any time, all work by Owner pursuant to this Agreement shall cease
until insurance acceptable to the City is provided. Upon City's request, Owner shall, within thirty
(30) days of the request, provide or arrange for the insurer to provide to City, complete certified
copies of all insurance policies required under this Agreement. City's failure to make such request
shall not constitute a waiver of the right to require delivery of the policies in the future.
28
SF #4821-6792-3144 v6
29
SF #4821-6792-3144 v6
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Santa Clarita
23920 Valencia Blvd., Suite 304
Santa Clarita, CA 91355
Attn: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
(SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
DOCUMENTARY TRANSFER TAX IS $
_X_ Computed on full value of property conveyed, or
Computed on full value less liens and encumbrances remaining at time of sale.
Unincorporated area _X_ City of Petaluma
GRANT DEED
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the City of Santa Clarita, a municipal corporation (the "Grantor") hereby
grants and conveys to Family Promise of Santa Clarita Valley, a California not for profit
public benefit corporation ("Grantee"), the real property located at 23652 Newhall Avenue, in
the City of Santa Clarita, known as Los Angeles County Assessor's Parcel No. 2833-016-
037, and more particularly described in Exhibit A attached hereto and incorporated herein
(the "Property").
1. Development Requirements. The Property is conveyed subject to that certain
Disposition and Development Agreement entered into by and between the Grantor and the
Grantee dated as of , 20_ (the "Agreement"). The Grantor and the Grantee
have executed a Memorandum of the Agreement dated as of the date hereof (the
"Memorandum") which will be recorded in the Official Records of Los Angeles County
("Official Records") substantially concurrently herewith.
2. Development of Improvements. The Grantee hereby covenants and agrees, for itself
and its successors and assigns, that the Grantee and such successors and assigns shall
promptly begin and diligently prosecute to completion the construction of improvements on
the Property (the "Improvements") in accordance with the Agreement, including without
limitation in accordance with the provisions of the Agreement that specify the required
number of residential units to be constructed and the time period within which construction of
the Improvements must be completed. The Property is conveyed subject to the
requirements of that certain Affordable Housing Regulatory Agreement and Declaration of
Restrictive Covenants that will be recorded substantially concurrently herewith (the
"Regulatory Agreement").
3. Certificate of Completion. Promptly following completion of construction of the
Improvements and the issuance of a final certificate of occupancy for the Improvements, the
SF #4843-5772-7944 d2
Grantor will furnish the Grantee with an instrument so certifying (a "Certificate of
Completion"). Such Certificate of Completion shall constitute conclusive determination of
satisfactory completion of construction of the Improvements and compliance with the
covenants in the Agreement and in this Grant Deed regarding the dates for the
commencement and completion of such construction.
4. Non -Discrimination. Grantee shall not restrict the rental, sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on the
basis of race, color, religion, creed, sex, sexual orientation, disability, marital status,
ancestry, or national origin of any person. Grantee covenants for itself and all persons
claiming under or through it, and this Grant Deed is made and accepted upon and subject to
the condition that there shall be no discrimination against or segregation of any person or
group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision
(m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Property or part thereof, nor shall Grantee or any person claiming under or
through Grantee 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, of, or for the Property or part thereof.
All deeds, leases or contracts made or entered into by Grantee, its successors or
assigns, as to any portion of the Property or the Improvements shall contain the following
language:
(a) In Deeds, the following language shall appear:
"(1) Grantee herein covenants by and for itself, its successors and assigns,
and all persons claiming under or through it, that there shall be no
discrimination against or segregation of a person or of a group of persons on
account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the property herein conveyed
nor shall the grantee or any person claiming under or through the grantee
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
property herein conveyed. The foregoing covenant shall run with the land.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status,
nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4,
51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
SF #4843-5772-7944 d2
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1)."
(b) In Leases, the following language shall appear:
"(1) The lessee herein covenants by and for the lessee and lessee's heirs,
personal representatives and assigns, and all persons claiming under the
lessee or through the lessee, that this lease is made subject to the condition
that there shall be no discrimination against or segregation of any person or of
a group of persons on account of race, color, creed, religion, sex, sexual
orientation, marital status, national origin, ancestry or disability in the leasing,
subleasing, transferring, use, occupancy, tenure or enjoyment of the property
herein leased nor shall the lessee or any person claiming under or through the
lessee establish or permit any such practice or practices of discrimination of
segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants, or vendees in the
property herein leased.
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph
(1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status,
nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4,
51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (1)."
(c) In Contracts relating to use or occupancy of the Property or the Improvements,
the following language shall appear:
"There shall be no discrimination against or segregation of any person or group
of persons on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections
12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of
Section 12955, and Section 12955.2 of the Government Code, in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property
nor shall the transferee or any person claiming under or through the transferee
establish or permit any such practice or practices of discrimination or
segregation with reference to selection, location, number, use or occupancy of
tenants, lessee, subtenants, sublessees or vendees of the land."
5. Restrictions on Transfer. The Grantee covenants and agrees that the Property and
Improvements will be used for the purposes of timely development of transitional and
affordable housing and certain service facilities and other non -housing purposes related to
and in support of transitional and affordable housing, all as set forth in the Agreement and
not for speculation in landholding. The Grantee further recognizes that Grantor entered into
the Agreement, and agreed to convey the Property to Grantee in reliance on the
SF #4843-5772-7944 d2
qualifications and identity of Grantee, and that the qualifications of Grantee are of particular
concern to Grantor, particularly in view of the importance of the construction of the
Improvements to the general welfare of the community, the assistance provided by Grantor
to facilitate development of the Improvements, and the reliance by Grantor upon the unique
qualifications and ability of the Grantee to develop, operate and manage the Property as a
transitional and affordable housing development. Grantee covenants, for itself and its
successors and assigns, that there shall be no sale, transfer, assignment, conveyance,
lease, pledge or encumbrance of the Agreement or the Property and the Improvements
thereon or any part thereof, or of any ownership interest in the Grantee (collectively,
"Transfer") in violation of the Agreement.
6. Duration of Covenants. The covenants contained in Section 2 regarding construction
shall remain in effect until the issuance of a Certificate of Completion pursuant to the
Agreement. The covenants against discrimination contained in Section 4 shall remain in
effect in perpetuity. The covenants against prohibited sales, transfers, assignments,
conveyances, leases, pledges and encumbrances contained in Section 5 shall remain in
effect throughout the term of the Regulatory Agreement.
7. Mortgagee Protection. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Grant Deed shall defeat or render
invalid or in any way impair the lien or charge of any mortgage, deed of trust or other
financing or security instrument permitted by the Agreement; provided, however, that any
successor of Grantee to the Property and Improvements shall be bound by such remaining
covenants, conditions, restrictions, limitations and provisions, whether such successor's title
was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
8. Binding on Successors. The covenants contained in Sections 2, 4, and 5 of this
Grant Deed, without regard to technical or legal classification or designation specified in this
Grant Deed or otherwise, shall to the fullest extent permitted by law and equity, be binding
upon Grantee and any successor in interest to the Property and Improvements or any part
thereof, for the benefit of Grantor, and its successors and assigns, and such covenants shall
run in favor of and be enforceable by the Grantor and its successors and assigns for the
entire period during which such covenants shall be in force and effect, without regard to
whether the Grantor is or remains an owner of any land or interest therein to which such
covenants relate. In the event of any breach of any of such covenants, the Grantor and its
successors and assigns shall have the right to exercise all rights and remedies available
under law or in equity to enforce the curing of such breach.
9. Power of Termination. Subject to and in accordance with the procedures and
provisions of Section 8.8 of the Agreement, the Grantor has the right, at its option, to re-
enter and take possession of the Property, or portion thereof, with all Improvements thereon,
and revest in the Grantor the estate conveyed to the Grantee, in the event of a default
arising under Section 8.8 of the Agreement.
10. Option to Repurchase. Subject to and in accordance with the procedures and
provisions of Section 8.9 of the Agreement, the Grantor has the right, at its option, to
purchase and take possession of the Property, or portion thereof, with all Improvements
SF #4843-5772-7944 d2
thereon, and revest in the Grantor the estate conveyed to the Grantee, in the event of a
default arising under Section 8.9 of the Agreement.
The Grantor shall have the right to institute such actions or proceedings as it may
deem desirable to effectuate the purposes of Sections 9 and 10 hereof. Any delay by the
Grantor in instituting or prosecuting any such actions or proceedings or otherwise asserting
its rights hereunder shall not operate as a waiver of or limitation on such rights, nor operate
to deprive Grantor of such rights, nor shall any waiver made by the Grantor with respect to
any specific default by the Grantee, its successors and assigns, be considered or treated as
a waiver of Grantor's rights with respect to any other default by the Grantee, its successors
and assigns, or with respect to the particular default except to the extent specifically waived.
11. Amendments. Only the Grantor, its successors and assigns, and the Grantee and the
successors and assigns of the Grantee in and to all or any part of the fee title to the Property
and Improvements shall have the right to consent and agree to changes or to eliminate in
whole or in part any of the covenants contained in this Grant Deed. For purposes of this
Section, successors and assigns of the Grantee shall be defined to include only those
parties who hold all or any part of the Property and Improvements in fee title, and shall not
include a tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under
deed of trust, or any other person or entity having an interest less than a fee in the Property
and Improvements.
12. Conflict Among Documents. In the event there is a conflict between the provisions of
this Grant Deed and the Agreement, it is the intent of the parties that the Agreement shall
control.
13. Grantee's Acknowledgement. By its execution of this Grant Deed, Grantee has
acknowledged and accepted the provisions hereof.
14. Counterparts. This Grant Deed may be executed in counterparts, each of which shall
be an original and all of which taken together shall constitute one and the same instrument.
SIGNATURES ON FOLLOWING PAGES.
SF #4843-5772-7944 d2
IN WITNESS WHEREOF, Grantor and Grantee have executed this Grant Deed as of
, 20_
GRANTOR:
City of Santa Clarita, a municipal corporation
By:
Print Name-
Title-
ATTEST -
City Clerk
APPROVED AS TO FORM:
City Attorney
GRANTEE:
Family Promise of Santa Clarita Valley,
a California not for profit public benefit corporation
IA
Its:
SIGNATURES MUST BE NOTARIZED.
SF #4843-5772-7944 d2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
) ss
County of Los Angeles )
On before me,
(Name of Notary)
notary public, personally appeared who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
SF #4843-5772-7944 d2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
) ss
County of Los Angeles )
On , before me
(Name of Notary)
notary public, personally appeared who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
SF #4843-5772-7944 d2
MT117[iG1
PROPERTY
All that certain real property situated in the County of Los Angeles, State of California, described
as follows:
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described as
follows: LOT 52 OF TRACT NO. 2703, IN THE CITY OF SANTA CLARITA, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28, PAGE(S)
20 TO 26 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THEREFROM THE SOUTHWESTERLY 20 FEET AS GRANTED TO THE STATE OF
CALIFORNIA PER THE DOCUMENT RECORDED JANUARY 21, 1975 AS INSTRUMENT NO.
239, OFFICIAL RECORDS, IN SAID COUNTY RECORDERS OFFICE.
APN: 2833-016-037
SF #4843-5772-7944 d2