38074.00014\41834387.2
1 FIRST AMENDMENT TO AFFORDABLE HOUSING DISPOSITION AND
DEVELOPMENT AGREEMENT
(85 Woodsworth Lane, Pleasant Hill, CA)
THIS FIRST AMENDMENT TO AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT AGREEMENT (85 Woodsworth Lane) (hereinafter referred to as the “Amendment”) is entered into as of _______________, 2023, by and between the CITY OF PLEASANT HILL, a California municipal corporation acting in its capacity as the Housing Successor Agency to the former Pleasant Hill Redevelopment Agency (“City”), and HABITAT FOR HUMANITY EAST BAY/SILICON VALLEY, a California nonprofit public benefit corporation (“Developer”). The City and the Developer are sometimes referred to in this Agreement, each individually, as a “Party,” or collectively, as the “Parties.” Recitals
A. City and Developer entered into that certain Disposition and Development Agreement (85 Woodsworth Lane), dated as of April 23, 2021, for reference purposes only (the “Agreement”), providing for the conveyance to the Developer of certain property generally located at 85 Woodsworth Lane in Pleasant Hill, California (the “Site”) for development of four ownership housing units, of which three would be sold to at an affordable sales price to low income households, and one would be sold at an affordable sales price to moderate income households (the “Project”) pursuant to the terms and conditions set forth in the Agreement. The Agreement additionally provided that the City would provide a $285,000 forgivable loan to Developer to assist with the development of the low income units to be developed as part of the Project. Capitalized terms not otherwise defined herein shall have the meaning set forth therefor in the Agreement.
B. After completion of a survey of the Site by Developer’s civil engineering consultant, Developer determined that the total area of the site is less that what is indicated on the parcel map for the Site, and as a result Developer determined constraints on the Site would prevent the development of four units on the Site, but that Developer can still develop three low income ownership housing units.
C. City and Developer desire to amend the Agreement to modify the Project as defined in the Agreement to grant Developer the flexibility to develop either three units or four units, with the three units being sold at an affordable sales price to low income households and the potential fourth unit being sold at an affordable sales price to moderate income households, and to make other clarifying and conforming changes related thereto, and to extend certain performance deadlines as set forth in the Agreement.
NOW, THEREFORE, THE CITY AND DEVELOPER HEREBY AGREE AS
FOLLOWS:
Agreements
Section 1. Amendment of Agreement
The Agreement is amended as set forth in this Amendment. All references to the Agreement shall mean the Agreement as amended herein.
38074.00014\41834387.2
2 Section 2. Affordable Units
Section 1.1.5 of the Agreement is hereby amended in its entirety to read as follows:
“1.1.5 “Affordable Unit” means each of the four three (43) single family townhome residential units to be constructed as part of the Development, and if developed, the optional fourth residential unit which may be constructed as part of the Development, each of which shall be sold at an Affordable Housing Cost to Qualified Homebuyers.” Section 3. Moderate Income Unit
Section 1.1.46 is hereby amended in its entirety to read as follows:
“1.1.46 “Moderate Income Unit” means the optional fourth Affordable Unit that may be constructed as part of the Project, which shall be that is set aside to be sold to and occupied by Moderate Income Households.
Section 4. Project
Section 1.1.59 of the Agreement is hereby amended in its entirety to read as follows:
“1.1.59 “Project” means the construction of the Property as a four three (3) or four (4)unit attached single family townhouse development with zero lot line parcels in a two-story building residential units, including all required or associated on-site and off-site improvements, all hardscape and all landscaping, all as specifically described in the Scope of Development, and all to be developed in accordance with the project entitlements to be approved by the City and any conditions imposed by the City in its approval of the project entitlements. The Project shall only consist of four (4) residential units if the Developer secures approval of an amendment to the City’s General Plan to allow for the development of four (4) residential units on the Property.”
Section 5. Repayment of Loan
Section 3.2 of the Agreement is hereby amended in its entirety to read as follows:
“3.2 Repayment of Loan.
3.2.1 After Close of Escrow on the Property, Developer will develop the Project and sell the Affordable Units to Qualified Homebuyers for use as their primary residences. Upon completion of construction of each of the Low Income Units and sale to a Qualified Homebuyer as applicable to the Low Income Unit, the Qualified Homebuyer shall execute (i) a separate promissory note in a principal amount equal to FORTY THOUSAND DOLLARS ($40,000) (“Buyer’s Note”); (ii) a deed of trust in favor of City to secure the Buyer’s Note (“Buyer’s Deed of Trust”); and (iii) a Resale Restriction Agreement containing owner occupancy and restrictions on transfer with a term of forty-five (45) years (“Resale Restriction”) and Right of First Refusal to re-acquire, renovate, and re-sell the Low Income Unit. Upon 38074.00014\41834387.2
3 completion of the Moderate Income Unit, if constructed as part of the Project, the Qualified Homebuyer shall execute a Resale Restriction and Right of First Refusal to re-acquire, renovate, and re-sell the Moderate Income Unit only. The Buyer’s Note, Buyer’s Deed of Trust and the Resale Restriction shall all be in a form as prepared and approved by the City in its sole discretion.
3.2.2 Upon execution of the Buyer’s Note, Buyer’s Deed of Trust and Resale Restriction by a Qualified Homebuyer for each Low Income Unit, the principal amount due City under this Note shall be reduced by an amount equal to FORTY THOUSAND DOLLARS ($40,000), any accrued interest on such portion of the principal amount shall be forgiven, and City shall execute such documents as may be necessary to release the applicable portion of the Property from the lien of the Deed of Trust and the Affordable Housing Covenant.
3.2.3 Upon execution of the third and last Buyer’s Note, Buyer’s Deed of Trust and Resale Restriction, applicable to the Low Income Units, and, if the Moderate Income Unit is constructed as part of the Project, execution of the Resale Restriction applicable to the Moderate Income Unit, the then outstanding principal amount and accrued interest under the Note shall be reduced to zero (-0-), and City shall execute such documents as may be necessary to release any remaining portion of the Property from the lien under the Deed of Trust and the Affordable Housing Covenant.
3.2.4 The Loan Funds shall bear simple interest at the rate of three percent per annum.
3.2.5 In the event of any default by Developer under the Deed of Trust, the Note, this Agreement, the Affordable Housing Covenant or any other loan or document affecting the Property, which default remains uncured following expiration of any applicable notice and cure period(s) prior to the execution of the final Buyer’s Note and Buyer’s Deed of Trust and all four (4) three (3), or four (4), if applicable, Resale Restrictions, the then outstanding principal and accrued interest on the Loan shall be due and payable in full in accordance with the terms of the Note.”
Section 6. Schedule of Performance
Section 5.4 of the Agreement is hereby amended in its entirety to read as follows:
“5.4 Schedule of Performance. The Schedule of Performance establishes various dates and times for the accomplishment of various tasks assigned to the City and the Developer and the satisfaction of the conditions precedent to the close of the Escrow. The Parties agree that time is of the essence in the performance of such tasks and the satisfaction of conditions precedent, in view of the large investment of resources that all Parties recognize will be required for the undertaking of the Project. If the date or time for the performance of a task or the satisfaction of a condition, as set forth in either the text of this Agreement or in the Schedule of Performance, may not be achieved, then prior to such date or time set forth in the text of this Agreement or the Schedule of Performance, the Parties shall consider whether a modification to the text of this Agreement or to the Schedule of Performance is indicated. Any decision to approve a modification to a time or date established in either the text of this Agreement or the Schedule of Performance shall be subject to the sole discretion of each Party. Any modification of a time or date for 38074.00014\41834387.2
4 performance of a particular task or satisfaction of a particular condition that does not result in a change of more than one hundred eighty (180) days may be approved on behalf of the City by the City Manager, in his or her reasonable discretion. A modification of a time or date for performance of a task or satisfaction of a condition (or a series of such modifications) that results in an aggregate change of more than one hundred eighty (180) days shall be subject to the approval of the City Council, in its sole and absolute discretion. The authority for the City Manager as applicable, to make modifications as set forth herein shall apply to any further modifications to the Schedule of Performance as amended by the First Amendment to this Agreement. If performance of a task or satisfaction of a condition in the Schedule Performance is prevented or delayed by Unavoidable Delays, the deadline for completion of such task or satisfaction of such condition shall be extended by the period of such Unavoidable Delays.”
Section 7. Exhibits
Exhibit B, Scope of Development, as attached to the original Agreement, is hereby amended and replaced in its entirety with the Amended Scope of Development attached hereto and labeled Exhibit B.
Exhibit C, Schedule of Performance, as attached to the original Agreement, is hereby amended and replaced in its entirety with the Amended Schedule of Performance attached hereto and labeled Exhibit C.
Exhibit I, Form of Affordable Housing Covenant, as attached to the original agreement, is hereby amended and replaced in its entirety with the Amended Form of Affordable Housing Covenant, attached hereto and labeled Exhibit I.
Section 8. Force and Effect
The effective date of this Amendment shall be the date that this Amendment is signed by both Parties.
Following the execution and delivery of this Amendment, all references to the Agreement shall thereafter mean and refer to the Agreement as amended by this Amendment.
Except as modified and amended by this Amendment, all other provisions of the Agreement shall remain unchanged and in full force and effect. [Signatures on following pages]
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5 SIGNATURE PAGE
TO
FIRST AMENDMENT TO
AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT AGREEMENT (85 Woodsworth Lane)
Dated:_________________, 2023
CITY:
THE CITY OF PLEASANT HILL
a California municipal corporation
By: ______________________________
City Manager
ATTEST:
By: ______________________________
City Clerk
APPROVED AS TO FORM:
By: ______________________________
Janet E. Coleson
City Attorney
[AND]
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6 SIGNATURE PAGE
TO
FIRST AMENDMENT TO
AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT AGREEMENT (85 Woodsworth Lane)
Dated:_________________, 2023
DEVELOPER:
HABITAT FOR HUMANITY EAST
BAY/SILICON VALLEY, a
California non-profit public benefit
corporation
By: ______________________________
Janice Jensen
President and CEO
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EXHIBIT B
EXHIBIT B
TO
FIRST AMENDMENT TO
AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT AGREEMENT
AMENDED SCOPE OF DEVELOPMENT
Habitat will develop 85 Woodsworth Lane in Pleasant Hill, California (“Property”) with four three (3) or four (4) two-story residential units, including all required or associated on-site and off-site improvements, all hardscape and all landscaping attached single family townhouses with zero lot line parcels in a two story building. Three (3) of the units will be sold as ownership units, of which three will be sold to low income households up to 80% of the Area Median Income (“AMI”) and one will be sold to a moderate income household up to 120% AMI as defined in the DDA. In the event that Developer constructs a fourth unit, that unit will be sold as an ownership unit to a moderate income household up to 120% AMI as defined in the DDA. The Project shall only consist of four (4) residential units if the Developer secures approval of an amendment to the City’s General Plan to allow for the development of four (4) residential units on the Property. There will be no Home Owner Association for this project.
38074.00014\41834387.2
EXHIBIT C
EXHIBIT C
TO
FIRST AMENDMENT TO
AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT AGREEMENT Amended Schedule of Performance
[Attached behind this page]
38074.00014\41834387.2
EXHIBIT C
AMENDED SCHEDULE OF PERFORMANCE
FIRST AMENDMENT TO AFFORDABLE HOUSING DISPOSITION AND
DEVELOPMENT AGREEMENT
85 Woodsworth Lane – Habitat for Humanity
Item to be
Performed Responsible Party Time for Performance
Agreement
Reference
1 Effective Date n/a Upon fully executed
agreement
1.1.24 2 Escrow Opening
Date
City, Developer,
and Escrow Holder
5 days from Effective Date 4.1
3 Provide Preliminary
Title Report
City As soon as practicable
following Effective Date
2.3 4 Title Notice Developer 60 days following receipt of Preliminary Title Report
2.3 5 Title Response City 20 days following Title
Notice
2.3 6 Removal of Title
Matter
City 10 days following Title
Notice if unable or unwilling
to remove
60 days following Title
Notice to remove
objectionable matter
2.3 7 Meet and Confer on
Title Matters
City and Developer Within 3 days following
receipt of notice to terminate
agreement; 30 day meet and
confer period
2.3.2 8 Conditions
Precedent to Initial
Disbursement
City and Developer Within 60 days of
Agreement execution
3.4.1 9 Initial Disbursement
of Loan Funds
City 60 days following
Agreement execution
3.4.1 38074.00014\41834387.2
EXHIBIT C
10 Subsequent
Disbursement of
Loan Funds
City 30 days of receipt of Draw
Requests per 3.4.4
3.4.3 11 Due Diligence
Investigations
Period
Developer 270 days from Effective
Date
1.1.23 12 Project Entitlements City and Developer March 31, 2022 December 31, 2024
2.5, 4.2.1.3,
4.2.1.8 13 Other Funding
Commitments
Developer December 31, 2022
June 30, 2025
4.2.1.4 14 Title Company
Committed to Issue
Title Policies
City and Developer Prior to Escrow Closing
Date
4.2.1.5 15 Developer
Documents
Submitted to City
(Organizational
Documents,
Construction Contract,
Construction Financing
Documents)
Developer Prior to Escrow Closing
Date
4.2.2.7,
4.2.2.8,
4.2.2.9 16 Escrow Fee Payment City and Developer 4 business days prior to Escrow Closing Date
4.8 17 Escrow Deposits City and Developer 1 business day prior to Escrow Closing Date
4.3, 4.4
18 Payment of Purchase
Price
Developer 1 business day prior to
Escrow Closing Date
2.2 19 Escrow Closing
Date
City, Developer,
and Escrow Holder
5 th day following Escrow
Holder’s receipt of written
satisfaction or waiver of all
conditions precedent, no
later than January 31, 2023
July 31, 2025
1.1.29, 4.6
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EXHIBIT C
20 Escrow Holder
Report to IRS
Escrow Holder Following Close of Escrow
and prior to last date
required by IRS
4.11 21 Cancellation
Instructions
City and Developer 3 business days of Escrow
Holder’s written request
4.10.1 22 Return of Funds and
Documents
Developer 10 days of receipt by Parties
of Escrow settlement
statement
4.10.2 23 Project
Commencement
Developer 60 days from Close of
Escrow
1.1.60 24 Project Completion Developer 30 months after Project Commencement
1.1.61 Per Section 5.4 of Agreement: Any modification of a time or date for performance of a particular task or satisfaction of a particular condition that does not result in a change of more than one hundred eighty (180) days may be approved on behalf of the City by the City Manager, in his or her reasonable discretion. A modification of a time or date for performance of a task or satisfaction of a condition (or a series of such modifications) that results in an aggregate change of more than one hundred eighty (180) days shall be subject to the approval of the City Council, in its sole and absolute discretion. If performance of a task or satisfaction of a condition in the Schedule Performance is prevented or delayed by Unavoidable Delays, the deadline for completion of such task or satisfaction of such condition shall be extended by the period of such Unavoidable Delays. 38074.00014\41834387.2
EXHIBIT I
EXHIBIT I
TO
FIRST AMENDMENT TO
AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT AGREEMENT Amended Form of Affordable Housing Covenant
[Attached behind this page]
38074.00014\41834387.2
EXHIBIT I
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523
Attn: City Clerk
______________________________________________________________________________ Exempt from Recording Fees Pursuant to
Government Code Section 27383
AFFORDABLE HOUSING COVENANT
AND RESTRICTIONS ON SALE
(85 Woodsworth Lane)
This Affordable Housing Covenant and Restrictions on Sale (“Agreement”) is dated _____________, 2024 and is entered into between the CITY OF PLEASANT HILL, a municipal corporation acting in its capacity as Housing Successor Agency to the former Pleasant Hill Redevelopment Agency (the “City”) and HABITAT FOR HUMANITY EAST BAY/SILICON VALLEY, a California nonprofit corporation (“Habitat” and initial “Owner.”)
RECITALS
The City, in its role as Housing Successor Agency to the former Pleasant Hill Redevelopment Agency, intends to create affordable home ownership opportunities for persons and families of low income. Pursuant to that certain Affordable Housing Disposition and Development Agreement (85 Woodsworth Lane) between the City and Habitat, dated as of _________, 2021 and amended by that First Amendment to Affordable Housing Disposition and Development Agreement dated as of _____________, 2023 (collectively, the “Agreement”), Habitat has acquired certain real property located at the northeast corner of Woodsworth Lane and Treadway Lane with an address of 85 Woodsworth Lane, Pleasant Hill, California (APN 150-150- 071-2) (the “Property”), as described in Exhibit A attached hereto and incorporated herein, for the purpose of developing four (4) three (3) or four (4) for-sale townhomes residential units, three of which will be constructed for occupancy by low income households that qualify as first-time homebuyers. The If it is included as part of the development of the Property, the fourth for-sale townhome will be constructed for occupancy by a moderate income household that qualifies as a first-time homebuyer.
Habitat has agreed to construct four (4) townhome housing units on the Property (the “Affordable Units”) and to sell three (3) of the Affordable Units to persons or families of low income that qualify as first-time homebuyers (the “Low Income Units”) if the development is comprised of four (4) total residential units, an additional one (1) Affordable Unit to a person or family of moderate income that qualifies as a first-time homebuyer (the “Moderate Income Unit”).
Each purchaser of a Affordable Low Income Unit or the Moderate Income Unit is referred to herein as the “Owner”. Pursuant to the Agreement, the City provided financial assistance to Habitat for a portion of the predevelopment costs associated with the development of the Low Income Units on the Property, a share of which is attributable to each Low Income Unit (“City Assistance”). 38074.00014\41834387.2
EXHIBIT I
The City Assistance is evidenced by a Promissory Note Secured by Deed of Trust (the “Note”) and is secured by a Deed of Trust on the Site.
The City and Habitat desire by the execution of this Agreement to assure that the Property and the Affordable Low Income Units constructed or to be constructed thereon, will be sold to Qualified Households at an Affordable Housing Cost in accordance with the terms and conditions of the Agreement and this Affordable Housing Covenant.
NOW THEREFORE, the parties acknowledge and agree as follows:
AGREEMENTS
1. DEFINITIONS
1.1 “Affordable Housing Cost” shall be as defined in Health and Safety Code Section 50052.5 or any successor thereto for Low Income Households whose incomes do not exceed 80% of area median income using the calculation for “lower income households”, and for Moderate Income Households whose incomes do not exceed 120% of area median income, as adjusted for family size appropriate for the Residential Unit. If the statute is no longer in effect and no successor statute is enacted, the City shall establish the Affordable Housing Cost for purposes of this Agreement.
1.2 “Affordable Unit” means the three (3) townhome housing residential units that shall be constructed on the Property and sold to and occupied by Lower Income Households at an Affordable Housing Cost, and if applicable, the fourth residential units that shall be constructed on the Property and sold to and occupied by a Moderate Income Household as an Affordable Housing Cost.each of the four (4) townhome housing units that shall be constructed on the Property and sold to Qualified Homebuyers at an Affordable Housing Cost.
1.3 “Low Income Units” means the three (3) Affordable Units that are set aside to be sold to and occupied by Lower Income Households.
1.4 “Low Income Households” means persons and families whose income does not exceed 80% of area median income, as adjusted for family size appropriate for the Affordable Unit.
1.5 “Moderate Income Households” means persons and families whose income does not exceed 120% of area median income, as adjusted for family size appropriate for the Affordable Unit.
1.6 “Moderate Income Unit” means the one (1) Affordable Unit that is set aside to be sold to and occupied by Moderate Income Households if the development of the Property is comprised of four (4) Affordable Units.
1.7 Persons and families meeting the definition under Section 1.34, who intend to purchase and reside in an Affordable Low Income Unit as their primary residence 38074.00014\41834387.2
EXHIBIT I
and persons and families meeting the definition under Section 1.5, who intend to purchase and reside in the Moderate Income Unit as their primary residence shall be referred to as “Qualified Homebuyers.”
2. AFFORDABILITY RESTRICTIONS
2.1 Affordability Requirements. Habitat for itself and any successors in interest hereby covenants and agrees that the Affordable Units shall only be sold to Qualified Homebuyers at an Affordable Housing Cost and that during such period the other requirements of this Article 2 shall apply. Habitat shall additionally comply with any current or future policies adopted by the City for selection, qualification, and monitoring of homebuyers who purchase affordable units assisted by the City, provided, however, that in the event that such policies require a material change to Habitat’s selection, qualification or monitoring practices, the City shall allow Habitat a commercially reasonable time to transition its policies. Upon sale of each of the Affordable Units to a Qualified Homebuyer, the Qualified Homebuyer and the City shall enter into a Resale Restriction Agreement that restricts subsequent transfers of the Property to Lower Income Households for the Low Income Units and to Moderate Income Households for the Moderate Income Unit, if applicable, and requires that the Qualified Homebuyer live in the Affordable Unit as their primary residence. The Resale Restriction Agreement shall be in a form prepared and approved by the City and shall have a term of forty-five (45) years. Upon recordation of a Resale Restriction Agreement in the Official Records of Contra Costa County, the applicable Affordable Unit shall be released from the restrictions set forth in this Affordable Housing Covenant.
2.2 OWNER FOR ITSELF AND FOR ANY SUCCESSORS IN INTEREST,
HEREBY COVENANTS AND AGREES THAT THE AFFORDABLE UNITS
MAY ONLY BE SOLD TO A QUALIFIED HOMEBUYER (DEFINED IN
SECTION 1.4 ABOVE) AT THE PURCHASE PRICE ESTABLISHED IN ACCORDANCE WITH SECTION 1.1. THERE SHALL BE NO SALE OR
OTHER TRANSFER OF THE SITE WITHOUT THE CERTIFICATION BY
THE CITY, OR ITS DESIGNEE, THAT THE PURCHASER/TRANSFEREE
IS AN ELIGIBLE HOUSEHOLD AND THAT THE SITE IS BEING
TRANSFERRED AT AN AFFORDABLE HOUSING COST. ANY SALE OR
OTHER TRANSFER OF THE RESIDENTIAL UNIT IN VIOLATION OF
THIS COVENANT SHALL BE VOID.
2.3 Household Income Qualifications. Prior to any proposed sale or other transfer of an Affordable Unit, Owner shall submit to the City a copy of the prospective purchaser’s income certification and a list of all assets owned by the prospective purchaser or other financial information in a form approved by the City along with the income certification to be provided to any lender making a loan on the Site. The City may require documentation evidencing and supporting the income and other financial information contained in the certifications. Within ten (10) business days from receipt of the income certifications, the City shall render a decision of eligibility or noneligibility. If the prospective purchaser does not qualify as a 38074.00014\41834387.2
EXHIBIT I
Qualified Homebuyer, the City shall notify Owner and Owner shall be obligated to locate another purchaser who qualifies as a Qualified Homebuyer. The City may designate another governmental entity or nonprofit organization to qualify each prospective purchaser as an Eligible Household. ANY ATTEMPT TO
TRANSFER TITLE OR ANY INTEREST THEREIN IN VIOLATION OF
THESE COVENANTS SHALL BE VOID AND DEEMED A PROHIBITED
TRANSFER AND SHALL BE SUBJECT TO THE PROVISIONS OF
SECTION 3.2, BELOW.
2.4 Final Procedure. The Owner may sell an Affordable Unit if all of the following conditions are satisfied:
2.4.1 The purchaser must be a Qualified Homebuyer at the income level applicable to the Affordable Unit, and the City must have approved the purchaser as a Qualified Homebuyer in accordance with Section 2.1 above.
2.4.2 The Affordable Unit must be sold at an Affordable Housing Cost, as confirmed by the City.
2.4.3 The purchaser intends to occupy the Affordable Unit as his or her principal place of residence and the transferee(s) must be an Eligible Household. The City will allow co-signers not meeting the above conditions for purposes of obtaining loans so long as the purchaser of the Affordable Unit meets the conditions set forth above; and
2.4.4 The transferee shall execute a Resale Restriction Agreement and a Disclosure Statement and such other documents as may be required by the City pursuant to which the purchaser shall assume the obligations and duties ensuring that the Affordable Unit shall remain as an Affordable Unit. The Resale Restriction Agreement shall include a right of first refusal to be held by Borrower, which shall give Borrower the right to repurchase the Affordable Unit, renovate it, and sell it to an Eligible Buyer, subject to a new Resale Restriction Agreement
2.5 Disclosure Statement. Each purchaser of an Affordable Unit must sign a Disclosure Statement in the form attached hereto as Exhibit B.
2.6 Termination. The covenants set forth herein shall be covenants running with the land and shall inure to the benefit of the City and its successors and assigns. The City and its successors and assigns, in the event of any breach by Habitat or any Owner of any such covenants contained herein shall have the right to exercise all of its rights and remedies allowed by law and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. The covenants and agreements established in this Agreement, without regard to technical classification and designation, shall be binding upon all parties having any right, title or interest in the Property or any portion thereof and on their heirs, successors in interest and assigns until the covenants terminate. The provisions set 38074.00014\41834387.2
EXHIBIT I
forth in this Agreement relating to the City’s right to purchase shall terminate and become void automatically upon termination of this Agreement.
3. DEFAULTS
3.1 Default and Foreclosure. A request for notice of default and any notice of sale under any deed of trust or mortgage with power of sale encumbering the Property shall be recorded by the City in the Office of the Recorder of the County of Contra Costa.
3.1.1 In the event of default and foreclosure, the City, its designee or assignee, shall have the same right as the Owner to cure defaults and redeem the Property or any portion thereof prior to foreclosure sale. Such redemption shall be subject to the same fees, charges and penalties which would otherwise be assessed against the Owner. Nothing herein shall be construed as creating any obligation on the part of the City to cure any such default, nor shall this right to cure and redeem operate to extend any time limitations in the default provisions of the underlying deed of trust or mortgage.
3.1.2 In the event that the City, its designee or assignee does not elect to cure such default pursuant to the provisions of this Section and the Residential Unit is sold through judicial or nonjudicial foreclosure or by deed in lieu of foreclosure, the purchaser of the Residential Unit shall receive title free and clear of the provisions of this Agreement (unless the purchaser at such sale is the Owner).
3.2 Notice of Prohibited Transfer. Upon receiving notification of a Prohibited Transfer under the provisions of Article 2 hereof, the City will give written notice to the Owner specifying the nature of the Prohibited Transfer. If the violation is not corrected to the satisfaction of the City within ten (10) days after the date of the notice, or within such further time as the City determines is necessary to correct the violation, the City may declare a default under this Agreement. Upon the declaration of a default, the City may apply to a court of competent jurisdiction for specific performance of the Agreement, for an injunction prohibiting a proposed sale or transfer in violation of this Agreement, for a declaration that the Prohibited Transfer is void, or for any such other relief as may be appropriate. In addition, the City shall have the right to exercise its rights and remedies under the Deed of Trust.
3.3 Attorneys’ Fees and Costs. If any action is brought to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs.
4. GENERAL
4.1 Notices. Notices required to be sent to the City hereunder shall be sent by certified mail, return receipt requested, to the following address:
38074.00014\41834387.2
EXHIBIT I
City of Pleasant Hill
100 Gregory Ave.
Pleasant Hill, CA 94523
Attn: City Manager
Notices required to be sent to the Owner hereunder shall be sent by certified mail, return receipt requested, to the following address:
Habitat for Humanity East Bay/Silicon Valley
2619 Broadway
Oakland, CA 94612
Attn: President and CEO
5. Duration. The covenants set forth herein shall be covenants running with the land, and shall inure to the benefit of the City and its successors and assigns enforceable by the City or its successors or assigns, until each of the Affordable Units is sold to a Qualified Homebuyer, unless sooner terminated as provided herein. The City and such aforementioned parties, in the event of any breach of any such covenants contained herein, shall have the right to exercise all of its rights and remedies allowed by law and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. The covenants and agreements established in this Agreement, without regard to technical classification and designation, shall be binding upon all parties having any right, title, or interest in the Site, or any portion thereof and on their heirs, successors in interest and assigns until the covenants terminate. The parties agree that all future deeds or transfers of interest shall show the restrictions of this Agreement and, during the duration of this Agreement, any transfer of the Site shall be subject to the terms and conditions of this Agreement. Upon expiration of this Agreement, this Agreement shall no longer be a lien on the Site and shall automatically be reconveyed without the need for further action by either party.
6. Successors and Assigns. The Owner, by and for itself and each successor to any interest in the Site, hereby specifically acknowledges and agrees to be bound by the covenants contained herein. Any successor to Owner shall execute the Disclosure Statement and Resale Restriction Agreement in a form as approved by the City, or an Affordable Housing Covenant in substantially the same form as this Agreement, or such other agreements or documents as may be reasonably requested by the City.
7. THE PARTIES AGREE THAT ALL FUTURE DEEDS OR TRANSFERS OF
INTEREST SHALL SHOW THE RESTRICTIONS OF THIS AGREEMENT AND
DURING THE DURATION OF THIS AGREEMENT, ANY TRANSFER OF THE
RESIDENTIAL UNIT SHALL BE SUBJECT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT.
8. Subordination. The City agrees to subordinate the terms and conditions of the Resale Restriction Agreements to be recorded against the Affordable Units to permanent mortgage financing obtained by the Qualified Homebuyers in an amount acceptable to the City, upon terms and conditions approved by the City. As a condition to any such subordination, to 38074.00014\41834387.2
EXHIBIT I
the extent any such permanent first mortgage financing is not provided pursuant to an adopted federal or state program, the lender must agree, and the applicable loan documents must obligate the lender, to send written notice of any default by the Owner to the City, must permit the City to cure any default within forty-five (45) days following notice of the default, allow the City to foreclose under its Deed of Trust without the lender accelerating its debt, and permit the City to transfer the Site to a qualified Eligible Household, any other governmental agency or a nonprofit organization (as the case may be) without the lender accelerating its debt.
9. Amendment. This Agreement may be amended only in writing by the City and Habitat.
Dated:_________________, 2020
CITY:
CITY OF PLEASANT HILL, a municipal
corporation
By: ______________________________
June Catalano
City Manager
ATTEST:
By: ______________________________
Carol Wu
City Clerk
APPROVED AST OT FORM:
By: ______________________________
Janet E. Coleson
City Attorney
HABITAT:
HABITAT FOR HUMANITY EAST
BAY/SILICON VALLEY, a
California non-profit public benefit
corporation
By: ______________________________
Janice Jensen
President and CEO
38074.00014\41834387.2
EXHIBIT I
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF )
On _________________, 2023 before me, , Notary
Public, personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: (seal)
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. 38074.00014\41834387.2
EXHIBIT I
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF )
On _________________, 2023 before me, , Notary
Public, personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: (seal)
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.
EXHIBIT A
EXHIBIT A
Legal Description of the Site
[To Be Inserted]
38074.00014\41834387.2
EXHIBIT B
EXHIBIT B
Form of Disclosure Statement
THERE ARE RESTRICTIONS ON THE SALE OF THE PROPERTY YOU ARE BUYING.
THIS PROPERTY MAY ONLY BE SOLD TO AN “ELIGIBLE HOUSEHOLD” AT AN “AFFORDABLE HOUSING COST.”
THIS MEANS THAT YOU MAY NOT SELL THE PROPERTY FOR MARKET VALUE TO WHOMEVER YOU LIKE.
THESE RESTRICTIONS WILL BE IN EFFECT FOR A PERIOD OF FORTY-FIVE (45)
YEARS FROM THE DATE OF RECORDATION OF THE AFFORDABLE HOUSING
COVENANTS AND RESTRICTIONS ON SALE AGAINST THE PROPERTY, AND REPAYMENT OF THE NOTE. IF YOU SELL THE PROPERTY IN VIOLATION OF THE
RESTRICTIONS, THE CITY OF PLEASANT HILL IS ENTITLED TO RECEIVE REPAYMENT OF THE NOTE IN THE AMOUNT OF $40,000.00 (PLUS ANY INTEREST OWED UNDER THE NOTE).
TO DETERMINE WHO IS AN ELIGIBLE HOUSEHOLD AND WHAT AN AFFORDABLE
HOUSING COST IS, YOU SHOULD CONTACT THE CITY MANAGER OF THE CITY OF PLEASANT HILL.
YOU SHOULD ALSO READ THE AFFORDABLE HOUSING COVENANT AND RESTRICTIONS ON SALE RECORDED AGAINST THE PROPERTY. YOU MAY OBTAIN A COPY FROM THE CITY OF PLEASANT HILL OR FROM THE ESCROW COMPANY.
I HAVE READ THE FOREGOING AND I UNDERSTAND WHAT IT MEANS. ______________________________ _______________________________
BUYER BUYER
______________________________ _______________________________
DATE DATE
38074.00014\41834387.2
EXHIBIT B
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF )
On _________________, 2023 before me, , Notary
Public, personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: (seal)
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. 38074.00014\41834387.2
EXHIBIT B
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF )
On _________________, 2023 before me, , Notary
Public, personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: (seal)
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.