HomeMy WebLinkAbout13 COLUMBUS GROVE 06-20-05
A G END A REPORT
Agenda Item
Reviewed:
City Manager
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Finance Director ~
MEETING DATE:
JUNE 20, 2005
TO:
FROM:
WilLIAM HUSTON, CITY MANAGER
COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT:
COLUMBUS GROVE HOUSING AGREEMENT
(TENTATIVE TRACT MAP 16582)
SUMMARY
On February 22, 2005, the City Council approved Tentative Tract Map 16582 for the
subdivision of 86.26 acres and the development of 386 numbered lots and 68 lettered
lots for the purpose of developing 465 residential units including 211 single family
detached units, 68 carriage way units, and 184 condominium units. As a condition of the
Tentative Tract Map, the applicant is required to enter into a Housing Agreement with
the City to insure implementation of the Affordable Housing requirements of the Specific
Plan, the City's Density Bonus Ordinance, and the City approved "Affordable Housing
Plan, Density Bonus Application." The Columbus Grove Housing Agreement prepared
by the City Attorney and executed by Moffett Meadows Partners fulfills this condition of
approval.
ApplicanV
Owner:
Moffett Meadows Partners, llC
RECOMMENDATION:
That the City Council authorize the Mayor to execute the Housing Agreement
(Columbus Grove) on behalf of the City of Tustin.
FISCAL IMPACT:
There are no associated fiscal impacts associated with the execution of this agreement.
BACKGROUND/DISCUSSION:
On February 22, 2005, the City Council approved Tentative Tract Map 16582 for the
subdivision of 86.26 acres and the development of 386 numbered lots and 68 lettered
lots for the purpose of developing 465 residential units including 211 single family
detached units, 68 carriage way units, and 184 condominium units. As a condition of the
Tentative Tract Map, the applicant is required to enter into a Housing Agreement with
the City to insure implementation of the Affordable Housing requirements of the Specific
City Council Report
Housing Agreement Tustin Grove
Page 2 of 2
Plan, the City's Density Bonus Ordinance, and the City approved "Affordable Housing
Plan, Density Bonus Application." Specifically, Condition 2.3 requires:
Prior to recordation of the first final map including a conveyance map, or
issuance of first building permit, whichever occurs first, the applicant shall enter
into a Housing Agreement with the City to insure implementation of the
Affordable Housing requirements of the Specific Plan, the City's Density Bonus
Ordinance, the City approved "Affordable Housing Plan, Density Bonus
Application," and the City's Affordable Housing Policy and compliance with
California Health and Safety Code Section 33413(b)(2). A minimum of thirty (30)
units shall be sold to moderate income households and no fewer than twelve (12)
transitional units within the very low income category shall be conveyed to
homeless providers for transitional housing for assistance to homeless (Human
Options and Orange County Interfaith Shelter). Eight (8) very low income units
and seventeen (17) low income units are approved for transfer to Planning Area
5. As part of the Housing Agreement, affordable covenants and other
agreements shall be required to be recorded against each unit and will be
binding on properties upon sale of transfer of units for a minimum of 45 years.
The Columbus Grove Housing Agreement prepared by the City Attorney and executed
by Moffett Meadows Partners fulfills this and various related conditions of approval.
â~~ ;'~;~~<,{
Elizabeth A. Binsack
Community Development Director
Attachment: Housing Agreement (Columbus Grove)
Due to the voluminous nature of the document, the Agreement is available
for review in the City Clerk's office during business hours and will be
available at the June 20th Council Meeting.
S:\CddlCCREPORT\Columbus Grove - Housing Agreement - final
HOUSING AGREEMENT
(COLUMBUS GROVE)
THIS HOUSING AGREEMENT is made and entered into as of 2005,
by and between Moffett Meadows Partners, LLC, a Delaware Limited Liability Company
(hereinafter the "Developer") and the City of Tustin, a municipal corporation (the "City").
RECITALS
I. Developer owns certain real property in Tustin, California that it plans to develop
as "Columbus Grove".
2. The Columbus Grove real property is more particularly described in Attachment
No. I, attached hereto and incorporated herein by this reference (the "Property").
3. In order to develop the Property, the Developer must comply with the MCAS,
Tustin Specific Plan ("Specific Plan"), and applicable City ordinances and approvals, such as
Ordinance No. 1296, City Council Resolution No. CC 05-37 and Planning Commission
Resolutions No. 3945 and 3947 ("City Approvals").
4. The Specific Plan requires the Developer to build a certain percentage, plus
certain numbers of housing units in specified Planning Areas that will be sold to persons and
families of very low, low and moderate income levels ("Affordable Housing Units").
5. The Specific Plan also requires a housing agreement between the City and
Developer for deed restrictions to insure the continued affordability of for-sale Affordable
HousingUnits as required by California Redevelopment Law, (Health and Safety Code Section
33334.3), and that the Agreement address: (I) number of units by type, location, and bedroom
count; (2) standards for qualifying income and maximum rent or sales price; and (3) parties
responsible for qualifying sales price and incomes.
6. Chapter I of Title 9, of the Tustin City Code ("TCC"), [TCC Sections 9111-
9142] ("Density Bonus Ordinance"), provides certain incentives for the construction of
Affordable Housing Units, namely a density bonus ("Density Bonus Units") and one (I)
regulatory concession or incentive.
7. Developer submitted an "Affordable Housing Plan and Density Bonus
Application" for Columbus Grove and Columbus Square, another housing development owned
by Developer and also subject to the Specific Plan (the "Application").
8. The Application requested Density Bonus Units to be located in Columbus Square
and the transfer from the Property to the Columbus Square property of the obligations in the
Specific Plan to develop and sell units for low and very low income households.
9. The City Council approved the Application through its approval of entitlements
for the Property and the Columbus Square Property, thereby giving the benefits of the Density
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Bonus Ordinance to the Columbus Square Property while correspondingly obligating Developer
to meet the Specific Plan obligations for the Property to provide low and very low income units
on the Columbus Square Property, in addition to the Specific Plan obligations for the Columbus
Square Property to develop and sell a certain number of units for very low, low and moderate
income households. .
10. Resolution No. CC 05-37 requires that prior to recordation of the first final map
including, conveyance map, or first building permit, whichever occurs first, the Developer shall
enter into a Housing Agreement with the City to insure implementation of the Affordable
Housing Requirements of the Specific Plan, the City's Density Bonus Ordinance, the City-
approved "Affordable Housing Plan, Density Bonus Application, the City's "Affordable Housing
Policy", and compliance with California Health and Safety Code Section 33413(b )(2).
II. In Columbus Grove the Developer is required to provide twelve (12) housing
units to Homeless Providers for Very Low Income Households and thirty (30) housing units for
Moderate Income Households.
12. Resolution No. CC 05-37, requires the execution of a City-Approved Agreement
among Developer, the City and each of the Homeless Providers prior to issuance of building
permits to insure that the twelve (12) units are made available for transitional housing for very
low income households.
13. If one or both of the Homeless Providers fails to execute the Agreement
referenced above in Recital 12, the City requires the Developer to develop and sell six (6) or
twelve (12) housing units (depending on whether one or both Homeless Providers fail to execute
the Agreement) to owner-occupiers of Very Low Income Households at Affordable Housing
Cost for such Households, and this Agreement is needed to provide for such eventuality.
14. Developer acknowledges that City approved Developer's meeting its Specific
Plan obligations for Affordable Housing Units for those portions of the City of Irvine's Planning
Area 38 (Disposition Parcel 36) which has been annexed to City (and which property now
comprises part of Columbus Grove) in the City of Irvine within Disposition Parcel 37, and that
condition 2.5 of City Council Resolution No. 05-37 requires an indemnity agreement to insure
that the required Affordable Units for Disposition Parcel 36 are provided in Disposition Parcel
37 in the City ofIrvine.
15. Developer and City wish to provide for the terms and conditions of a Housing
Agreement that complies with State Law, the Specific Plan, and City Approvals.
16. The City owns Reuse Plan Disposal Parcels I-B-2 and I-B-3, which are parcels of
land adjacent to the Property (the "City Benefited Property").
17. This Agreement is intended to benefit the Reuse Plan Disposal Parcels referenced
above and the obligations and rights contained herein are intended to run with the land.
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NOW, THEREFORE, based on the recitals, and mutual promises and covenants
contained herein, the parties agree as follows:
AGREEMENT
1.
Definitions.
1.1. "Affordable Housing Cost for Very Low Income Households" means the cost per
Unit for Very Low Income Households as more particularly defined in Health and Safety Code
Section 50052.5(b)(2) and as generally described herein as a price per Unit which results in
Monthly Housing Costs for the purchaser which shall not exceed one-twelfth of thirty percent
(30%) times fifty percent (50%) of the annual Orange County Median Income, adjusted for
Household size appropriate for the Unit.
1.2. "Affordable Housing Cost for Moderate Income Households" means a cost per
Unit for moderate income households as more particularly defined in Health and Safety Code
Section 50052.5(b)(4) and as generally described in this Agreement as a price per Unit calculated
as follows: "Annual Affordable Housing Cost for Moderate Income Households" shall not be
less than twenty-eight percent (28%) of the gross annual income of the household, nor exceed the
product of thirty-five percent (35%) times one hundred ten percent (110%) of the annual Orange
County Median Income, adjusted for family size appropriate for the Unit. Notwithstanding the
foregoing, in accordance with Health and Safety Code Section 50052.5(b)(4), the City has
determined and hereby agrees that, for a Moderate Income Household whose gross income
exceeds one hundred ten percent (110%) of the annual Orange County Median Income adjusted
for family size, in accordance with Health and Safety Code Section 50052.5(b)(4), the City has
determined and hereby agrees that the "Affordable Housing Cost for Moderate Income
Households" shall be a Monthly Housing Cost not in excess of thirty-five percent (35%)
times one hundred twenty percent (120%) of the annual Orange County Median Income,
adjusted for family size appropriate for the unit. Affordable Housing Cost of Moderate Income
Households shall take into account principal and interest, loan insurance, property taxes, fire and
casualty insurance, utilities and Homeowners' Association fees.
1.3. "Affordable Housing Covenant" means the covenant in the form attached hereto
as Attachment No.5 and Attachment No.6, as applicable, to be recorded against the title to each
Affordable Housing Unit, as defined herein.
1.4.
"Affordable Housing Note" shall have the meaning set forth in Section 3.2.
1.5. "Affordable Housing Option Agreement" means the agreement that gives the City
an option to purchase a Unit which shall be exercisable in the event that (a) an owner of a Unit
conveys all, or substantially all of the Owner's interest in the Unit, or (b) the owner of a Unit is
in breach of the owner's obligations in the Affordable Housing Covenant. The Affordable
Housing Option Agreement is referred to in the Affordable Housing Covenant, and is Exhibit
"F" to that covenant.
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1.6.
"Affordable Housing Deed of Trust" shall have the meaning set forth in Section
3.2.
1.7. "Affordable Housing Unit" means the twelve (12) housing units to be provided by
Developer to the Homeless Providers for Very Low Income Households and the thirty (30)
housing units to be provided by Developer for sale at an Affordable Housing Cost for Moderate
Income Households and occupied by Owner-Occupiers.
1.8.
"Agreement" means this Housing Agreement, together with all Attachments.
1.9.
"City" means the City of Tustin, California.
1.10. "City Benefited Property" means the properties owned by the City as of the
effective date of this Agreement which are benefited by the covenants, agreement and
restrictions set forth in this Agreement and the Affordable Housing Covenant, and which are
described in Recital 16 and in Exhibit B to the Affordable Housing Covenant.
1.11.
"City Councif' means the City Council of the City of Tustin.
1.12. "Developer" means Moffett Meadows partners, LLC, or their successor(s) in
interest with respect to any portion ofthe Columbus Grove real property, which successor(s) has
or have executed a City-approved assignment agreement, as described in Section 6.
1.13. "Disposition Parcel 36 and Disposition Parcel 37" means a parcel shown on a
map entitled Tustin Legacy Disposition Parcels and maintained by the City. Disposition Parcels
36 and 37 were purchased by Developer from the United States Government. At the time of such
purchase, Disposition Parcels 36 and 37 were within the City of Irvine. Disposition Parcel 36 has
been subsequently annexed to the City.
1.14.
Shelter.
"Homeless Providers" means Human Options and Orange County Interfaith
1.15. "Market Rate Unit" is a housing unit approved by the City for Columbus Grove
that does not constitute an Affordable Housing Unit.
1.16. "MCAS Tustin" means the former Marine Corps Air Station-Tustin.
1.17.
"Memorandum of Agreement" shall have the meaning set forth in Section 3.6.
1.18. "Moderate Income Household' means a Household or Households consisting of
persons and families whose gross income does not exceed the qualifying limits for moderate
income families as set forth in Health and Safety Code Section 50093.
1.19. "Orange County Median Income" means the median income of all households in
Orange County, California, as established by official annual publications of the Federal
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Department of Housing and Urban Development as released by the State Department of Housing
and Community Development.
1.20. "Owner-Occupier" means a person or persons who will own in fee and occupy, as
their primary residence, an individual Affordable Housing Unit.
1.21. "Party" means a party to this Agreement, including lawful successors and assigns.
1.22. "Reimbursement Agreement" means that certain agreement whereby an owner of
an Affordable Housing Unit agrees to reimburse the City for certain amounts the City may
advance on behalf of the owner. The Reimbursement Agreement is referred to in the Affordable
Housing Covenant, and is attached as Exhibit "E" to the Affordable Housing Covenant.
1.23. "Very Low Income Household' means a Household or Households consisting of
persons and families whose gross income does not exceed the qualifying limits for very low
income families as set forth in Health and Safety Code Section 50105.
2. ADD roved HousiD!! Plan for Affordable Housinl! Units. The total number of Units
approved for Columbus Grove, including their proposed respective locations within Columbus
Grove, and bedroom counts are shown on Attachment No.2 and incorporated herein by
reference.
3.
Affordable Housinl! Unit Oblil!ations.
3.1.
Affordable Housing Unit Obligations.
3.1.1. Moderate Income Households. Thirty (30) Affordable Housing Units, as
identified in Attachment No.2, shall be sold at an Affordable Housing Cost for Moderate
Income Households, and shall be occupied by Moderate Income Households, who will be
Owner-Occupiers. Such Units shall be constructed as shown in Attachment No.2, as per the
conditions of approval contained in Resolution CC 05-37, including Condition 2.2.
3.1.2. Verv Low Income Households. Twelve (12) Affordable Housing Units, as
identified in Attachment No.2, shall be sold by Developer to Homeless Providers, pursuant to a
City-Approved Agreement. In the event that one or both of the Homeless Providers fail(s) to
execute the City-Approved Agreement for the sale of these twelve (12) Affordable Housing
Units, the Developer shall develop and sell such units to, and such units shall be occupied by,
Very Low Income Households, who will be Owner-Occupiers. Such Units shall be constructed
as shown in Attachment No.2, as per the conditions of approval contained in Resolution CC 05-
37, including Condition 2.2.
3.1.3. The Developer shall submit to the City an Affordable Housing Purchaser
Selection and Criteria Plan for Redevelopment Agency review and approval thirty (30) days
prior to approval of a final map or issuance of a building permit. The City will approve or
disapprove the Affordable Housing Purchaser Selection and Criteria Plan with in twenty (20)
calendar days. The Developer shall initiate marketing and sales of the Affordable Housing Units
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after City's Approval of Developer's Affordable Housing Purchaser Selection and Criteria Plan.
Sale of Affordable Housing Units can begin after final map recordation and all necessary
California Department of Real Estate approvals. Prior to execution of a sales contract for a Unit,
Developer shall submit to City proposed purchaser's income certification and related income
verification materials in a form acceptable to City and City shall approve same in writing. The
Developer shall submit to City individual escrow instructions for buyers of Affordable Housing
Units and all other related documents at least twenty (20) calendar days prior to close of escrow
of individual Affordable Housing Units and with submission of individual escrow instructions
and related items by developer to City. The City shall approve or disapprove individual escrow
instructions and related items for buyers of Affordable Housing Units within ten (10) calendar
days offollowing submission by developer.
3.2. Documents ReQuired at Close of Escrow for an Affordable Housing Unit. In
compliance with Section 3.1 herein, the Developer shall only sell Affordable Housing Units to
Owner-Occupiers. At the time of closing of each sale of an Affordable Housing Unit to an
Owner-Occupier, the Developer shall cause to be executed and recorded against such Affordable
Housing Unit an appropriate Affordable Housing Covenant, Affordable Housing Deed of Trust,
and an Affordable Housing Option Agreement (Exhibit "F" to Affordable Housing Covenant).
In addition, Developer shall require the prospective Owner-Occupier to execute the
Reimbursement Agreement (Exhibit "E" to the Affordable Housing Covenant), which executed
agreement shall be delivered to the City as a condition of close of escrow on the Unit. In order
to enable City to meet its continuing affordable housing obligations under State law, and because
the City has facilitated the provision of the Affordable Housing Units through its adoption of the
Specific Plan and housing incentives in the Density Bonus Ordinance, and provided that the
Affordable Housing Covenant, Affordable Housing Deed of Trust and Affordable Housing
Option Agreement are recorded concurrently with the closing of the sale of the Affordable
Housing Unit, the City agrees to accept a promissory note executed by the purchasing Owner-
Occupier (the "Affordable Housing Note"), which Affordable Housing Note shall be an amount
equal to the difference between the appraised fair market value of the Unit as if it was a Market
Rate Unit, and the sales price required to sell the Unit at an Affordable Housing Cost for
Moderate Income Households or an Affordable Housing Cost for Very Low Income Households,
as applicable. The Affordable Housing Note shall be in the form attached hereto as Attachment
No.3. Each Affordable Housing Note shall be secured by a deed of trust executed by the
purchasing Owner-Occupier and recorded against the Unit at the time of the closing of such sale
(the "Affordable Housing Deed of Trust"). The Affordable Housing Deed of Trust shall be in
the form attached hereto as Attachment No.4 and shall be subordinate in priority only to the
monetary lien of a purchase money deed of trust also recorded at the time of closing of the sale
securing an amount not in excess of the Affordable Housing Cost for a Moderate Income
Household.
3.3.
Covenant Re: Affordable Housing Units.
3.3.1. The Developer covenants and agrees for itself, its successors, its assigns
and every successor in interest to an Affordable Housing Unit that, for a period terminating
forty-five (45) years from the date of the closing of the initial sale of the Unit to a member of the
home buying public: (a) Affordable Housing Units designated in Attachment No.2 as being for
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sale to Moderate Income Households shall only be sold to Moderate Income Households and (b)
Affordable Housing Units designated in Attachment No.2 as being for sale to Homeless
Providers, which are not sold to Homeless Providers shall only be sold to Very Low Income
Households. The Developer also covenants and agrees for itself, its successors, its assigns and
every successor in interest to an Affordable Housing Unit, that, for a period terminating forty-
five (45) years from the date of the closing of the sale of an Affordable Unit to an Owner-
Occupier, as follows: (a) the Affordable Housing Units designated in Attachment No.2 as being
for sale to Moderate Income Households shall be sold only at a price not in excess of an
Affordable Housing Cost for Moderate Income Households, the Affordable Housing Units
designated in Attachment No.2 as being for sale to Homeless Providers and are not sold to
Homeless Providers shall be sold only at a price not in excess of an Affordable Housing Cost for
Very Low Income Households and (b) the Affordable Housing Units will only be sold to and by
an eligible Household at an Affordable Housing Cost, and will only be occupied by the
purchasing Owner-Occupiers as their principal place of residence, and (c) shall not be rented.
3.3.2. In order to impose upon purchasers of Affordable Housing Units the
obligations set forth in Section 3.3.1, concurrently with the recordation of the grant deed for the
Developer's conveyance of each Affordable Unit, there shall be recorded against each
Affordable Housing Unit an "Affordable Housing Covenant," substantially in the form of
Attachment No.5 and Attachment No.6, as applicable, attached hereto, and an "Affordable
Housing Deed of Trust," which Deed of Trust is to secure the obligations of the Owner-Occupier
set forth in the Affordable Housing Covenant, the Reimbursement Agreement, and the
Affordable Housing Note.
3.3.3. In addition, the Developer shall cause to be included in the grant deed for
each Affordable Housing Unit (a) references to the Affordable Housing Covenant and the
obligation of a Transferee of a Unit (as defined in the Affordable Housing Covenant to be bound
by all of the obligations of Homeowner set forth in the Affordable Housing Covenant, (b) a
reference to the Affordable Housing Deed of Trust, (c) a reference to the Affordable Housing
Option Agreement, (d) a reference to the Reimbursement Agreement, (e) a reference to the due
on sale provisions of the Affordable Housing Note, and (t) a covenant that will require the
Transferee, and any successor and assign of the Transferee, to include in any document
transferring (as defined in the Affordable Housing Covenant) the Unit, a reference to the
Affordable Housing Covenant, the Affordable Housing Deed of Trust, the Affordable Housing
Option Agreement, the Reimbursement Agreement, the due on sale provisions of the Affordable
Housing Note, and the obligation of the Transferee to be bound by the obligations set forth in
the Affordable Housing Covenant, the Affordable Housing Deed of Trust, the Affordable
Housing Option Agreement, the Reimbursement Agreement and the due on sale provisions of the
Affordable Housing Note.
3.3.4. In order to enable an owner of an Affordable Housing Unit to comply with
the obligations described in the Affordable Housing Covenant, the City shall waive the right of
the City to exercise its option to purchase set forth in the Affordable Housing Option Agreement,
provided that all of the following occur: (a) the Unit is sold to an Owner-Occupier and not
rented; (b) the Unit is sold at a price not in excess of the then appropriate Affordable Housing
Cost for the Unit; (c) the owner who intends to sell the Unit and all of that owner's predecessors
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in interest have fully complied with the Affordable Housing Covenant; (d) the purchaser agrees
to be bound by the Affordable Housing Covenant, the Option Agreement and the Reimbursement
Agreement; (e) the purchaser agrees to increase the amount of the Affordable Housing Note as
provided in this Section, (1) the City receives a title policy, in an amount equal to the amount
then due on the Affordable Housing Note as increased as provided in this Section, insuring the
Affordable Housing Deed of Trust as a monetary lien of second priority subordinate in priority
among monetary liens only to the monetary lien of any purchase money deed of trust recorded at
the time of closing of the sale which deed of trust shall secure an amount not in excess of the
then fair market value of the Unit less the amount of the Affordable Housing Note increased as
provided in this Section, and (g) the City is reimbursed for its costs related to the transaction.
The amount due on the Affordable Housing Note secured by the Affordable Housing Unit being
sold shall be increased by the amount by which the fair market value of the Unit at the time of
the closing of the sale is in excess of the sum of (x) the amount of principal and interest then
payable on the Affordable Housing Note secured by the Unit and (y) the Affordable Housing
Cost of such Unit as of the time of the closing of the sale. Except for such increase in the
amount of the Affordable Housing Note, the Affordable Housing Note, the Affordable Housing
Deed of Trust, the Reimbursement Agreement and the Affordable Housing Option Agreement
shall remain in full force and effect.
3.3.5. The City and the Developer hereby agree that (a) this Agreement is
entered into in order to achieve a stabilized community of Owner-Occupied Affordable Housing
Units, and to enable the City and its successors and assigns to enforce the Affordable Housing
Covenant; (b) that it is the intention of the City and the Developer that the City and its successors
and assigns be empowered to enforce the covenants contained in the Affordable Housing
Covenant; and (c) that the Affordable Housing Covenant does empower the City and its
successors and assigns to enforce the covenants contained in the Affordable Housing Covenant,
and that the Affordable Housing Covenant should be so construed and interpreted.
3.4. Nondiscrimination and Equal Opportunitv. The Developer covenants and agrees
for itself, its successors, its assigns and every successor in interest to all or a portion of the
Property or any part thereof, there shall be no discrimination against or segregation of any
person, or group of persons, on account of race, color, creed, religion, sex sexual orientation,
marital status, national origin or ancestry in the sale, transfer, use, occupancy, tenure or
enjoyment of the Property or any portions thereof, nor shall the Developer itself or any person
claim under or through it establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of purchasers of
the Property, or any portion thereof.
3.5. Compliance with Densitv Bonus Ordinance, Specific Plan. and Applicable State
Law. The City and the Developer hereby agree that the provisions of this Agreement comply
with the Specific Plan, Density Bonus Ordinance, California Government Code Section 65915,
and California Health and Safety Code Sections 33334.3, 33334.14, and 33413(b) and that the
Agreement fully satisfies the above-mentioned ordinances and State statutes.
3.6. Indemnitv Agreement. Pursuant to condition 2.5 of Resolution No. 05-37 and
prior to the issuance of any building permits, Developer agrees to execute an indemnity
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agreement with City to ensure that all Affordable Housing Units required on Disposition Parcel
36 shall be provided for by the City of Irvine in Disposition Parcel 37, and that Developer shall
indemnify City against any claim for City's failure to impose affordability requirements on
Disposition Parcel 36. In the event Developer fails to execute such indemnification agreement,
Developer shall amend the Affordable Housing Plan to provide for twenty-one (21) Affordable
Housing Units on Disposition Parcel 36, which shall include eight (8) Very Low Income Units,
five (5) Low Income Units, and eight (8) Moderate Income Units.
3.7. Memorandum of Agreement. A Memorandum of Agreement, substantially in the
form of Attachment No.7, attached hereto and incorporated herein by this reference, shall be
recorded against the Property upon execution of this Agreement.
4.
Potential and Material Defaults.
4.1. Potential Defaults. Except as otherwise provided in this Agreement, in the
event either Party (the "Defaulting Party") fails to perform, or delays in the performance of,
any obligation, in whole or in part, required to be performed by the Defaulting Party as
provided in this Agreement (a "Potential Default"), the other party (the "Injured Party")
may give written notice of such Potential Default to the Defaulting Party, which notice shall
state the particulars of the Potential Default. The City and the Developer agree to cooperate
in good faith and meet and confer regarding such default.
4.2. Material Default. A Potential Default under Section 4.1 shall become a
"Material Default" in the event the Potential Default is not cured within thirty (30) days of
receipt of a written notice of such Potential Default from the Injured Party; provided that if
such cure cannot be reasonably accomplished within such period, then within ninety (90)
days after receiving written notice of the Potential Default, but only if the Defaulting Party
has commenced such cure within such period and diligently pursues such cure to completion,
or within such longer period of time as may be expressly provided in this Agreement with
respect to the Potential Default. The time periods set forth above to cure within the time
periods set forth above, each Potential Default shall become a Material Default that shall be
deemed to have occurred upon the expiration of the applicable cure period.
4.3. Specific Performance. In the event the Developer is in Material Default, in
addition to whatever other rights the City may have in law or at equity, or as otherwise
provided in this Agreement, the City may seek to specifically enforce the obligations of the
Developer under this Agreement.
4.4. No Waiver. The failure to, or delay in, giving notice of a Potential Default
shall not constitute a waiver of any default, nor shall it change the time of default. Except as
otherwise expressly provided in this Agreement, any failures or delays by either Party in
asserting any of its rights and remedies as to any default shall not operate as a waiver of any
default or of any such rights or remedies. Delays, by either Party in asserting any of its rights
and remedies, shall not deprive either Party of its right to institute and maintain any actions
or proceedings which it may deem necessary to protect, assert, or enforce any such rights or
remedies.
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5.
Governinl! Law / Consent to Jurisdiction.
5.1. All questions with respect to the interpretation of this Agreement and the rights
and liabilities of the parties to this Agreement shall be governed by the laws of the State of
California.
5.2. The Parties hereto agree that all actions or proceedings arising in connection with
this Agreement shall be tried and litigated exclusively in the Superior Court of the County of
Orange, State of California, in any other appropriate court of that county, or in the United States
District Court for the Central District of California. This choice of the venue is intended by the
Parties to be mandatory and not permissive in nature, thereby precluding the possibility of
litigation between or among the Parties with respect to or arising out of this Agreement in any
jurisdiction other than that specified in this section. Each Party hereby waives any right that it
may have to assert the doctrine forum non conveniens or similar doctrine or to object to venue
with respect to any proceeding brought in accordance with this section, and stipulates that the
state and federal courts located in the County of Orange, State of California, shall have in
personam jurisdiction and venue over each of them for the purpose of litigating any dispute,
controversy or proceeding arising out of this agreement. Each Party hereby authorizes and
accepts service of process sufficient for personal jurisdiction in any action against it as
contemplated by this Section 5.2 by means of registered or certified mail, return receipt
requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement,
or in the manner set forth in Section 16 of this Agreement pertaining to notice. Any final
judgment rendered against a Party in any action or proceeding shall be conclusive as to the
subject of such final judgment and may be enforced in other jurisdictions in any manner
provided by law.
6.
Bindinl! on Successors / Assil!nment Restricted to BuilderslPurchasers.
6.1. This Agreement shall inure to the benefit of, and shall be binding upon, the
successors and assigns of each of the parties to this Agreement, except that this Agreement may
not be assigned by Developer without City's written consent.
6.2. The Developer may assign its obligations under this Agreement to a builder who
purchases all or a portion of the Property ("Builder/Purchaser"). Such assignment shall not be
effective until Developer and the Builder/Purchaser enter into an assignment agreement
approved by City ("Assignment Agreement"), and the Assignment Agreement is recorded in
the Official Records of the County of Orange against the BuilderlPurchaser's portion of the
Property. Such Agreement shall serve to release Developer from the obligations of this
Agreement for that portion of the Property transferred in fee to the BuilderlPurchaser upon the
transfer of title to the BuilderlPurchaser and recordation of the Assignment Agreement.
7.
No Third Partv Beneficiaries.
This Agreement has been made and entered into solely for the benefit of the Parties to
this Agreement and their respective successors and permitted assigns. Nothing in this
Agreement is intended to confer any rights or remedies under or by reason of this Agreement on
200152.7
10
June 13,2005
any persons other than the parties to it and their respective successors and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any
third persons to any parties to this Agreement.
8.
Entire Al!reement.
This Agreement and the Attachments constitute the entire agreement and understanding
between the parties hereto with respect of the subject matter of such Agreement and supersedes
all prior or contemporaneous agreements and understandings with respect to such subject matter,
whether oral or written.
9.
Waivers.
Waiver by the City of any term, covenant or condition under this Agreement, including
Attachments, or of any default by Developer under this Agreement, or any failure by the City to
insist upon strict performance by Developer of any term, covenant or condition contained in this
Agreement shall be effective or binding on the City only if made in writing by the City; no such
waiver shall be implied from any omission by the City to take action with respect to any such
term, covenant, condition or default. No express written waiver by the City of any term,
covenant, condition or default shall affect any other term, covenant, condition or default or cover
any other time period than the application of any such term, covenant or condition to the matter
as to which a waiver has been given or the default or time period specified in such express
waiver.
10.
Severability.
If any part of this Agreement is declared by a final decision of a court of competent
jurisdiction to be invalid for any reason, such shall not affect the validity of the rest of the
Agreement. The other parts of this Agreement shall remain in effect as if this Agreement had
been executed without the invalid part. The parties declare that they intend and desire that the
remaining parts of this Agreement continue to be effective without any part or parts that have
been declared invalid.
11.
CounterDarts.
This Agreement may be executed in counterparts, each of which so executed shall,
irrespective of the date of its execution and delivery, be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
12.
Time is of the Essence.
Time is of the essence in this Agreement, and failure to timely comply with provisions of
this Agreement shall be a Potential Default under this Agreement.
200152.7
11
June 13,2005
13.
Attornevs' Fees.
If any party files an action or brings any proceeding against the other arising from this
Agreement, the prevailing party shall be entitled to recover as an element of its costs of suit, and
not as damages, reasonable attorneys' fees and costs to be fixed by the court. A party not
entitled to recover its costs shall not recover attorneys' fees. No sum for attorneys' fees shall be
included in calculating the amount of a judgment for purposes of deciding whether a party is
entitled to its costs or attorneys' fees.
14.
Amendment.
No modification, amendment, addition to, or alteration of the terms of this Agreement, or
the Attachments, whether written or verbal, shall be valid unless made in writing and formally
approved and executed by all parties.
15.
Authority of Sil!natories to Al!reement.
Each person executing this Agreement represents and warrants that he or she is duly
authorized and has legal capacity to execute and deliver this Agreement on behalf of the Parties
for which execution is made. Each Party represents and warrants to the other that the execution
of this Agreement and the performance of such Party's obligations hereunder have been duly
authorized and that the agreement is a valid and legal agreement binding on such party and
enforceable in accordance with its terms.
16.
Notices. Demands and Communications between Parties.
All notices, demands, consents, requests and other communications required or permitted
to be given under this Agreement shall be in writing and shall be deemed conclusively to have
been duly given (a) when hand delivered to the other party; (b) three (3) Business Days after
such notice has been sent by United States mail via certified mail, return receipt requested,
postage prepaid, and addressed to the other party as set forth below; (c) the next Business Day
after such notice has been deposited with a national overnight delivery service reasonably
approved by the parties (Federal Express, United Parcel Service and U.S. Postal Service are
deemed approved by the parties), postage prepaid, addressed to the party to whom notice is being
sent as set forth below with next business day delivery guaranteed, provided that the sending
party receives a confirmation of delivery from the delivery service provider; or (d) when
received by the recipient party when sent by facsimile transmission or email at the number or
email address set forth below (provided, however, that notices given by facsimile or email shall
not be effective unless either (i) a duplicate copy of such notice is promptly sent by any method
permitted under this Section. other than by facsimile or email; or (ii) the receiving party delivers
a written confirmation of receipt for such notice either by facsimile, email or any other method
permitted under this Section. Any notice given by facsimile or email shall be deemed received on
the next business day if such notice is received after 5:00 p.m. (recipient's time) or on a Saturday,
Sunday or national holiday. Unless otherwise provided in writing, all notices hereunder shall be
addressed as follows:
200152.7
12
June 13,2005
If to the City:
City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: City Manager
and Assistant City Manager
With a copy to:
City Attorney
City of Tustin
Woodruff, Spradlin & Smart
701 S. Parker Street, Suite 8000
Orange, CA 92868-4760
If to the Developer:
Moffett Meadows Partners, LLC
c/o Lennar Homes of California,
its Managing Member
[address]
Any party may by written notice to the other party in the manner specified herein change
the address to which notices to such party shall be delivered.
17.
Attachments.
This Agreement includes the following Attachments that are attached hereto and are
incorporated by reference as though fully set forth herein:
Attachment No. I
Attachment No.2
Legal Description
Location and Bedroom Count of Affordable
Housing Units
Attachment No.3
Attachment No.4
Attachment No.5
Attachment No.6
Affordable Housing Note
Affordable Housing Deed of Trust
Affordable Housing Covenant (Moderate Income)
Affordable Housing Covenant (Very Low Income)
Attachment No.7
Memorandum of Agreement
18.
Effective Date.
The Effective Date of this Agreement shall be the date when this Agreement has been
executed by the Developer and City, which shall be the date first set forth above.
200152.7
13
June 13,2005
")
)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year flfSt written above.
"CItY"
CITY OF TUSTIN
By:
LOU BONE, MAYOR
ATTEST:
Pamela Stoker, City Clerk
APPROVED AS TO FORM:
Lois E. Jeffrey, City Attorney
"DEVELOPER"
MOFFETT MEADOWS PARTNERS,
LLC, a Delaware limited liability company
By: Marble Mountain Partners, LLC, its
sole member, a Delaware limited
liability company, its administrative
member
By:
Dated:
By:
Dated:
B~ t; 1t ~.c'J
, Ass! tant S cretary
APPROVED AS TO FORM:
By:
William Devine, Legal Counsel
200152.8
14
June 6, 2005
ATTACHMENT NO.1
LEGAL DESCRIPTION
PARCEL I:
IN THE CITY OF TUSTIN AND CITY OF IRVINE, COUNTY OF ORANGE, STATE OF
CALIFORNIA, BEING THAT PORTION OF BLOCKS 61 AND 62 OF IRVINE'S
SUBDIVISION AS SHOWN ON THE MAP FILED IN BOOK I, PAGE 88 OF
MISCELLANEOUS RECORD MAPS, AND AS SHOWN ON A MAP FILED IN BOOK 165,
PAGES 31 THROUGH 39, INCLUSIVE, OF RECORDS OF SURVEY, BOTH OF THE
RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHEASTERLY CORNER OF PARCEL I-B-3 AS
DESCRIBED IN A DOCUMENT RECORDED MAY 14, 2002 AS INSTRUMENT NO.
20020404592 OF OFFICIAL RECORDS OF SAID COUNTY AND SAID CORNER ALSO
BEING THE INTERSECTION OF THE NORTHWESTERLY LINE OF HARVARD
AVENUE (HAVING A NORTHWESTERLY HALF-WIDTH OF 36 FEET) AND THE
SOUTHWESTERLY LINE OF EDINGER AVENUE (HAVING A SOUTHWESTERLY
HALF-WIDTH OF 60 FEET) AS SHOWN ON SAID RECORD OF SURVEY, SAID
SOUTHWESTERLY LINE OF EDINGER A VENUE BEING A CURVE CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 1740.00 FEET, A RADIAL LINE TO SAID
INTERSECTION BEARS NORTH 52 44'05" EAST;
THENCE ALONG THE NORTHEASTERLY AND NORTHWESTERLY LINE OF SAID
PARCEL THE FOLLOWING FOUR (4) COURSES:
I)
NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE AND SAID CURVE
33.68 FEET THROUGH A CENTRAL ANGLE OF I 06' 33" TO A LINE THAT IS
PARALLEL WITH AND 69 FEET NORTHWESTERLY FROM THE CENTERLINE
OF SAID HARVARD A VENUE AS SHOWN ON SAID RECORD OF SURVEY;
2)
THENCE ALONG SAID PARALLEL LINE SOUTH 4037' 53" WEST 1228.30 FEET
TO THE TRUE POINT OF BEGINNING;
3)
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 40 37' 53" WEST
38.00 FEET TO AN ANGLE POINT THEREIN;
4)
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 4037' 37" WEST
1619.79 FEET TO A POINT ON THE NORTHWESTERLY LINE OF THE LAND
DESCRIBED IN THE DOCUMENT RECORDED IN BOOK 10657, PAGE 412 OF
OFFICIAL RECORDS OF SAID COUNTY AND AS SHOWN ON SAID RECORD OF
SURVEY, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 1894.00 FEET, A RADIAL
LINE TO SAID BEGINNING BEARS SOUTH 27 21' 58" EAST;
200152.7
Attachment 1
June 13,2005
THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE AND SAID
CURVE 140.26 FEET THROUGH A CENTRAL ANGLE OF 4 14' 35"; THENCE
CONTINUING ALONG SAID NORTHWESTERLY LINE SOUTH 66 52' 37" WEST 1087.44
FEET TO A POINT ON A CURVE THAT IS CONCENTRIC WITH AND 118.75 FEET
NORTHEASTERLY FROM THE CENTERLINE OF WARNER AVENUE AS SHOWN ON
SAID RECORD OF SURVEY, SAID CURVE BEING CONCAVE SOUTHWESTERLY
HAVING A RADIUS OF 1718.75 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH
6845' 45" EAST;
THENCE CONCENTRIC AND PARALLEL WITH SAID CENTERLINE OF WARNER
AVENUE THE FOLLOWING TWO (2) COURSES:
I)
NORTHERLY AND NORTHWESTERLY ALONG SAID CURVE 843.12 FEET
THROUGH A CENTRAL ANGLE OF 28 06' 22";
2)
THENCE NORTH 49 20' 37" WEST 468.05 FEET TO THE BEGINNING OF A
CURVE CONCAVE EASTERLY HAVING A RADIUS OF 35.00 FEET;
THENCE NORTHWESTERLY, NORTHERLY AND NORTHEASTERLY ALONG
SAID CURVE 62.22 FEET THROUGH A CENTRAL ANGLE OF 101 51' 19" TO
THE SOUTHEASTERLY LINE OF PETERS CANYON CHANNEL (HA VIN A
SOUTHEASTERLY HALF-WIDTH OF 90 FEET) AS DESCRIVED IN THE
DOCUMENT RECORDED IN BOOK 6681, PAGE 721 OF OFFICIAL RECORDS OF
SAID COUNTY AND AS SHOWN ON SAID RECORD OF SURVEY; THENCE
ALONG SAID SOUTHEASTERLY LINE OF SAID PETERS CANYON CHANNEL
NORTH 52 30' 42" EAST 417.91 FEET TO THE CITY OF IRVINE AS SHOWN ON
SAID RECORD OF SURVEY; THENCE LEAVING SAID SOUTHEASTERLY LINE
AND ALONG SAID CITY BOUNDARY LINE SOUTH 49 21' 01" EAST 45.99 FEET
TO A LINE THAT IS PARALLEL WITH AND 135.00 FEET SOUTHEASTERLY
FROM THE CENTERLINE OF SAID PETERS CANYON CHANNEL; THENCE
ALONG SAID PARALLEL LINE NORTH 52 32' 09" EAST 289.49 FEET; THENCE
LEAVING SAID PARALLEL LINE NORTH 37 27' 51" WEST 5.00 FEET TO A LINE
THAT IS PARALLEL WITH AND 130.00 FEET SOUTHEASTERLY FROM THE
CENTERLINE OF SAID PETERS CANYON CHANNEL;
I)
2)
THENCE PARALLEL AND CONCENTRIC WITH SAID CENTERLINE THE
FOLLOWING THREE (3) COURSES:
NORTH 52 32' 09" EAST 1277.26 FEET TO THE BEGINNING OF A CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 2130.00 FEET;
NORTHEASTERLY ALONG SAID CURVE 238.53 FEET THROUGH A CENTRAL
ANGLE OF 6 24' 58";
NORTH 4607' II" EAST 210.47 FEET TO A POINT ON SAID SOUTHEASTERLY
LINE OF PETERS CANYON CHANNEL;
3)
200152.7
Attachment 1
June 13, 2005
THENCE ALONG SAID SOUTHEASTERLY LINE THE FOLLOWING SIX (6) COURSES:
I)
2)
3)
4)
5)
6)
SOUTH 49 19' 03" EAST 20.10 FEET;
NORTH 46 07' II" EAST 74.99 FEET;
NORTH 4919' 04" WEST 60.28 FEET;
NORTH 46 07' 11" EAST 32.14 FEET;
SOUTH 4919' 04" EAST 60.28 FEET;
NORTH 46 07' II" EAST 22.1 0 FEET;
THENCE LEAVING SAID SOUTHEASTERLY LINE SOUTH 49 19' 04" EAST 1311.03
FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM PARCEL I-B-2 AS DESCRIBED IN SAID INSTRUMENT NO.
20020404592, OFFICIAL RECORDS.
PARCEL 2:
NON-EXCLUSIVE EASEMENTS FOR INGRESS AND EGRESS OVER THAT CERTAIN
LAND RESERVED BY THE UNITED STATES OF AMERICA, FOR SAID PURPOSES, IN
THE DEED RECORDED MAY 14, 2002 AS INSTRUMENT NO. 2002-0404592, IN THE
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
200152.7
Attachment 1
June 13,2005
ATTACHMENT NO.2
LOCATION AND BEDROOM COUNT
OF AFFORDABLE HOUSING UNITS
200152.7
Attachment 2
June 13,2005
Columbus S~uareand Columbus Grove.
Figure 10
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2. AFFORDABLE HOUSING PROGRAM
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COLUMBUS GROVE
AFFORDABLE HOUSING PROGRAM
TENTATlVE TRACT NO. 18582
PA 21-ø AND 21-14
CITY of TUSTIN
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ATTACHMENT NO.3
AFFORDABLE HOUSING NOTE
200152.7
Attachment 3
June 13, 2005
AFFORDABLE HOUSING
PROMISSORY NOTE
(COLUMBUS GROVE)
$
,200-
, California
FOR VALUE RECEIVED, the undersigned
(jointly and severally "Homeowner"), promises to pay to the order of the City of Tustin, a
municipal corporation (the "City"), at 300 Centennial Way, Tustin California 92780, Attention:
Assistant City Manager, or at such other place as the holder of this Affordable Housing
Promissory Note ("Affordable Housing Note" or "Note") from time to time may designate in
writing, the principal sum of
Dollars ($ ),
plus such amount that is to be added to the principal sum of this Note as provided below,
together with interest on the unpaid principal amount of this Note from time to time outstanding
(the "Interest") in lawful money of the United States of America.
RECITALS
A.
Homeowner has purchased a condominium located at
Tustin, California (the "Unit"). The Unit is part ofthat certain housing development known as
" " (the "Project").
8. Pursuant to that certain Housing Agreement (the "Housing Agreement") between
the City and Moffett Meadows Partners, LLC, a Delaware limited liability company (the
"Developer"), the Developer is required to sell certain of the homes in the Project at an
"Affordable Housing Cost" as defined in the Housing Agreement.
C. The Unit has been designated by the Developer as a Unit that is to be sold at an
Affordable Housing Cost.
D. Homeowner has represented to the Developer and the City that Homeowner and
Homeowner's household intend to reside in the Unit as the Homeowner's principal residence at
all times during the Homeowner's ownership of the Unit, that they will not rent the Unit to
others, and that they are a Very Low Income or Moderate Income Household (as defined in the
Housing Agreement) as is applicable to the Unit.
E. In order to enable the City to meet its continuing affordable housing obligations
under State law, and because the City has facilitated the provision of the Affordable Housing
Units through its adoption of the Specific Plan and housing incentives in the Density Bonus
200152.7
Attachment 3
June 13,2005
Ordinance, the City agreed to accept as part payment of amounts owed by the Developer to the
City this Note executed by Homeowner in connection with Homeowner's purchase of the Unit.
F. In order to assure the City that the Unit wil\ remain an Affordable Housing Unit
for forty-five years, the Homeowner and the Developer have agreed to record against title to the
Unit an Affordable Housing Covenant (the "Affordable Housing Covenant").
F. The payment of this Affordable Housing Note and the performance of the
Homeowner's obligations under the Affordable Housing Covenant are secured by a Deed of
Trust With Assignment of Rents of even date herewith (the "Affordable Housing Trust Deed")
encumbering the Unit.
AGREEMENT
I.
Definition of Terms.
(a) "Affordable Housing Cost" shall mean a price that does not exceed the
Affordable Housing Cost for a Household size appropriate for the Unit for Very Low Income
Households or Moderate Income Households, as applicable. Affordable Housing Cost for an
Affordable Housing Unit shall be calculated as of the date of sale or resale of the Unit.
Household size appropriate for the Unit means two persons for a one bedroom house, three
persons for a two bedroom house, four persons for a three bedroom house, five persons for a four
bedroom house, etc.
(b) "Affordable Housing Covenant" shall mean the covenant in the form
attached to the Housing Agreement as Attachment No.5 or Attachment No.6, as applicable, and
recorded against the title to the Unit.
(c) "Affordable Housing Trust Deed" means that certain deed of trust with
Assignment of Rents of even date herewith executed by Homeowner which encumbers the Unit
and secures the obligations of Homeowner and his or her successors and assigns as provided in
(a) the Affordable Housing Covenant, (b) the Reimbursement Agreement attached as Exhibit "E"
to the Affordable Housing Covenant, and (c) this Affordable Housing Note.
(d)
"Assistant City Manager" shall mean Ms. Christine Shingleton, or her
successor.
(e)
"City" means the City of Tustin and the City's successors and assigns.
(f) "Developer" means Moffett Meadows Partners, LLC, or a
BuilderlPurchaser, as defined in the Housing Agreement, who has executed a City-approved
assignment agreement as provided in the Housing Agreement.
(g) "Interest" means the amount of interest payable on this Note computed as
provided in Sections 3 and 4.
(h) "Homeowner" means the person or persons executing this Note, and his,
her or their successors and assigns.
200152.7
Attachment 3
June 13, 2005
(i) "Housing Agreement" means the Agreement required by Condition 2.3
of Tustin City Council Resolution No. 05-37, and entered into as of ,2005 by and
between the City and Moffett Meadows Partners, LLc.
(j) "Note Documents" means this Note, the Affordable Housing Trust Deed,
the Affordable Housing Option Agreement and the Reimbursement Agreement.
(k)
"Owner" means Homeowner and his, her or their successors and assigns.
(I) "Transfer" means any sale, assignment, conveyance, lease or transfer,
voluntary or involuntary, of any interest in the Unit. Without limiting the generality ofthe
foregoing, Transfer shall include (i) a transfer by devise, inheritance or intestacy; (ii) the creation
of a life estate; (iii) the creation of a joint tenancy interest; (iv) a gift of all or any portion of the
Unit; or (v) any voluntary conveyance of the Unit.
(m) Terms not otherwise defined in this Affordable Housing Note are defined
in the Affordable Housing Covenant.
2. Payments of Principal and Interest. The entire unpaid principal amount of this
Note, together with any accrued and unpaid interest and any other amounts then due under the
Affordable Housing Trust Deed, shall be due and payable forty-six (46) years from the date of
this Note (the "Maturity Date"), unless such amounts become due and payable sooner because
of acceleration, in which case they shall be due and payable in full on the date of such
acceleration.
3. Computation ofInterest. There are two elements of interest that shall be payable
on this Note:
(a) The first element of interest is simple interest on the original principal
amount of this Note at the rate of five percent (5%) per annum (the "Interest Rate") computed
from the date ofthis Note.
(b) The second element of interest is the amount by which the principal
amount ofthis Note is increased as provided in Section 4.
4. Increase in the Principal Amount of this Note. In the event the Homeowner
Transfers his, her or their interest in the Unit, the City has the right to accelerate the Maturity
Date of this Note as provided in the Affordable Housing Covenant and Affordable Housing Trust
Deed. In the event of such a Transfer and the City does not exercise its right to accelerate the
Maturity Date of this Note, then there shall be added to the principal amount of this Note an
amount by which the fair market value of the Unit at the time of the closing of the Transfer is in
excess of the sum of the Affordable Housing Cost of such Unit as of the date of the closing of the
Transfer. Such amount shall be automatically added to the principal amount of this Note without
the need for the consent of Homeowner or a demand by the City. Any interest that has accrued
on this Note as of the date of the closing of the Transfer shall be deemed to be included in the
increased principal amount of this Note, and interest shall begin accruing on the increased
principal amount of this Note as of the date of the closing of the Transfer at the Interest Rate
provided above. Except for such increase in the principal amount of this Note and the reduction
200152.7
Attachment 3
June 13,2005
to zero of accrued interest due on this Note, the Note Documents shall remain in full force and
effect.
5. Partial Forgiveness of Amounts Pavable. Notwithstanding the foregoing, in the
event that the then-owner of the Unit and all ofthe owner's predecessors-in-interest have fully
complied with the Affordable Housing Covenant as of the Maturity Date, the Owner of the Unit
need only pay five percent (5%) of the amount due and payable on the Maturity Date.
6. No Prepavment. The City desires that the Note not be prepaid in order to assure
that the Unit will only be sold at an Affordable Housing Cost for forty-five (45) years from the
initial sale of the Unit. In order to assure this result, Homeowner and the City agree that this
Note may not be prepaid in whole or in part at anytime prior to the Maturity Date.
7. Additional Interest. If any payment due under this Note shall become overdue for
a period longer than ten (10) days, the unpaid amount shall bear interest at the highest rate
permitted by law (the "Default Rate").
8. Events of Default and Remedies. Upon the occurrence and during the
continuance ofa default under any of the Note Documents (an "Event of Default"), the City, at
its option, may:
(a) declare all of Homeowner's obligations under the Note Documents to be
immediately due and payable, without notice (except as provided by law); and
(b) pursue each other right, remedy and power available to it under the Note
Documents or available to it at law or in equity.
The rights, remedies and powers of the City, as provided in this Note and the
other Note Documents, are cumulative and concurrent, and may be pursued singly, successively
or together against Homeowner, the Unit, any guarantor of Homeowner's obligations and any
other security given at any time to secure the payment of Homeowner's obligations, all at the
sole discretion of the City. The City may resort to every other right or remedy available at law or
in equity without first exhausting the rights and remedies contained in the Note Documents, all in
the City's sole discretion. Failure of the City, for any period of time or on more than one
occasion, to exercise its option to accelerate the Maturity Date shall not constitute a waiver of the
right to exercise such right at any time during the continued existence of any Event of Default
under any of the Note Documents or in the event of any subsequent Event of Default under this
Note or any of the other Note Documents. The City shall not by any other omission or act be
deemed to waive any of its rights or remedies under the this Note or the other Note Documents
unless such waiver is contained in a writing signed by the City, and then only to the extent
specifically set forth in such writing. A waiver in connection with one event shall not be
construed as continuing or as a bar to or waiver of any right or remedy in connection with a
subsequent event.
9. Waivers and Consents. Homeowner and each endorser, guarantor, surety or
accommodation party of this Note and each other person liable or to become liable for any part
of the indebtedness evidenced by this Note, waives presentment for payment, demand, notice of
nonpayment, notice of dishonor, protest of any dishonor, notice of protest and protest of this
200152.7
Attachment 3
June 13,2005
Note, and all other notices in connection with the delivery, acceptance, performance, default or
enforcement of the payment of this Note (except in the case of Homeowner as provided by law),
and agree that their liability shall be unconditional and without regard to the liability of any other
party and shall not be in any manner affected by any indulgence, extension of time, renewal,
waiver or modification granted or consented to by the City. Homeowner and each such endorser,
guarantor, surety, accommodation party and person liable or to become liable further consent to
every extension of time, renewal, waiver or modification that may be granted by the City with
respect to the payment or other provisions of this Note, and to the release of any collateral given
to secure the payment of amounts owing under this Note, with or without substitution, and agree
that additional makers or guarantors or endorsers may become parties to this Note without notice
to Homeowner or any other parties and without affecting the liability of Homeowner or any other
parties under this Note.
10. Due on Sale. The Affordable Housing Deed of Trust includes provisions
permitting the City to declare all sums secured by the Deed of Trust due and payable if an
encumbrance of or transfer of any interest in the Property occurs in violation of the encumbrance
or transfer provisions of the Affordable Housing Covenant.
11.
Miscellaneous.
(a) Governing Law. All questions with respect to the construction of this
Note and the rights and liabilities of the parties to this Note shall be governed by the laws of the
State of California.
(b) Binding on Successors. This Note shall inure to the benefit of, and shall
be binding upon, the successors and assigns of each of the parties to this Note.
(c) The City's Costs. Homeowner shall pay all reasonable Costs incurred by
the City in connection with the documentation, modification, workout, collection or enforcement
of the amount evidenced by this Note (the "Loan") or any of the Note Documents (as
applicable), including probate, appellate and bankruptcy proceedings, any post-judgment
proceedings to collect or enforce any judgment or order relating to the Loan or any of the Note
Documents (as applicable), and all such Costs shall bear interest at the Default Rate until paid.
For the purposes hereof "Costs" means all expenditures and expenses which may be paid or
incurred by or on behalf of the City including repair costs, payments to remove or protect against
liens, attorneys' fees (including fees ofthe City's inside counsel), receivers' fees, appraisers'
fees, engineers' fees, accountants' fees, independent consultants' fees (including environmental
consultants), all costs and expenses incurred in connection with any of the foregoing, the City's
out-of-pocket costs and expenses related to any audit or inspection of the Unit, outlays for
documentary and expert evidence, stamp taxes, publication costs, and costs (which may be
estimates as to items to be expended after entry of an order or judgment) for procuring all such
abstracts of title, title searches and examination, title insurance policies, and similar data and
assurances with respect to title as the City may deem reasonably necessary either to prosecute
any action or to evidence to bidders at any sale of the Unit the true condition of the title to, or the
value of, the Unit. Further, all "Costs" shall include such other costs, expenses and fees as may
be incurred by the City in the protection of the Property and the maintenance of the lien of the
Affordable Housing Deed of Trust, including, attorneys' fees, expenses and costs in any
200152.7
Attachment 3
June 13,2005
litigation or proceeding affecting the Affordable Housing Deed of Trust, this Note, the other
Note Documents, the Unit, including probate, appelIate, and bankruptcy proceedings, and any
post-judgment proceedings to collect or enforce any judgment or order relating to this Note, the
Affordable Housing Deed of Trust or the other Note Documents, to obtain any court order or the
appointment ofa receiver to enforce the City's rights pursuant to Section 564 of the California
Code of Civil Procedure and/or Section 2929.5 of the California Civil Code or in preparation for
the commencement or defense of any action or proceeding, shalI be immediately due and
payable to the City, with interest thereon at the Default Rate. This provision is separate and
several, and shalI survive the merger of this provision into any judgment.
(d) Entire Agreement. This Note and the other Note Documents constitute the
entire agreement and understanding between and among the parties in respect of the subject
matter of such agreements and supersede all prior agreements and understandings with respect to
such subject matter, whether oral or written.
(e) Waivers. Waiver by the City of any term, covenant or condition under
this Note or the other Note Documents, or of any default by Homeowner under this Note or the
other Note Documents, or any failure by the City to insist upon strict performance by
Homeowner of any term, covenant or condition contained in this Note or the other Note
Documents, shalI be effective or binding on the City only if made in writing by the City; no such
wavier shall be implied from any omission by the City to take action with respect to any such
term, covenant, condition or default. No express written waiver by the City of any term,
covenant, condition or default shall affect any other term, covenant, condition or default or cover
any other time period than the application of any such term, covenant or condition to the matter
as to which a waiver has been given or the default or time period specified in such express
waiver. This Note may be amended only by an instrument in writing signed by Homeowner and
the City.
(f) Severability. If any part ofthis Note is declared invalid for any reason,
such shall not affect the validity of the rest of the Note. The other parts of this Note shall remain
in effect as if this Note had been executed without the invalid part. The parties declare that they
intend and desire that the remaining parts of this Note continue to be effective without any part
or parts that have been declared invalid.
(g) Lawful Rate of Interest. In no event whatsoever shall the amount of
interest paid or agreed to be paid to the City pursuant to this Note or any of the Note Documents
exceed the highest lawful rate of interest permissible under applicable law. If, from any
circumstances whatsoever, fulfillment of any provision of this Note and the other Note
Documents shall involve exceeding the lawful rate of interest which a court of competent
jurisdiction may deem applicable hereto ("Excess Interest"), then ipso facto, the obligation to be
fulfilled shall be reduced to the highest lawful rate of interest permissible under such law and if,
for any reason whatsoever, the City shall receive, as interest, an amount which would be deemed
unlawful under such applicable law, such interest shall be applied to the principal amount ofthis
Note (whether or not due and payable), and not to the payment of interest, or refunded to
Homeowner if all principal hereof has been paid in full. Neither Homeowner nor any guarantor,
endorser or surety nor their heirs, legal representatives, successors or assigns shall have any
200152.7
Attachment 3
June 13,2005
action against the City for any damages whatsoever arising out of the payment or collection of
any such Excess Interest.
12. Waiver of Trial by Jurv. EACH OF HOMEOWNER AND THE CITY WAIVES
TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN
RESPECT OF OR ARISING OUT OF TillS NOTE OR THE OTHER NOTE DOCUMENTS.
Executed this - day of
,200_.
200152.7
Attachment 3
June 13,2005
ATTACHMENT NO.4
AFFORDABLE HOUSING DEED OF TRUST
200152.7
Attachment 4
June 13,2005
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
[SPACE ABOVE LINE FOR RECORDER'S USE ONLY]
AFFORDABLE HOUSING DEED OF TRUST WITH ASSIGNMENT OF RENTS
This AFFORDABLE HOUSING DEED OF TRUST WITH ASSIGNMENT OF RENTS, made
,20_, between
herein called Trustor, whose address is
herein
called TRUSTEE, and CITY OF TUSTIN, a municipal corporation, herein called BENEFICIARY,
WITNESSETH: That TrustDr grants, transfers and assigns to Trustee in trust, with power of sale, that property in
the City of Tustin, County of Orange, State of Cali fomi a, described as:
See Exhibit "A" attached hereto
Together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter
given to and conferred upon Beneficiary to collect and apply such rents, issues and profits for the purpose of
securing (I) the payment of the sum of$ with interest thereon
according to the terms of a promissory note of even date herewith ("Note") made by Trustor payable to the order
of Beneficiary, and extensions or renewals thereof, (2) payment of any sums advanced on behalf of Trustor
according to the terms of a reimbursement agreement of even date herewith ("Reimbursement Agreement'.) made
by Trustor and Beneficiary, and extensions and renewals thereof, (3) the performance of each agreement and
obligation of Trustor according to the terms of an affordable housing covenant of even date herewith ("Affordable
Housing Covenant") made by Trustor in favor of Beneficiary, and extensions and renewals thereof, (4) the
performance of each agreement of Trustor incorporated by reference or contained herein, and (4) payment of
additional sums and interest thereon which may hereafter be loaned to Trustor, or his successors or assigns, when
evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust.
A. To protect the security of this Deed of Trust, Trustor agrees:
1) To keep said property in good condition and repair, not to remove or demolish any building
thereon; to complete or restore promptly and in good and workmanlike manner any building which may be
constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials
fumished therefore, to comply with all laws affecting said property or requiring any alterations or improvements to
be made thereon, not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property
200152.7
Attachment 4
June 13,2005
in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or
use of said property may be reasonable necessary, the specific enumerations herein not excluding the general.
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss
payable to Beneficiary. The amount collected under any fire or other insurance policy may be applied by
Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may detennine, or at option of
Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or
release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to
such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the
rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title
and attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may
appear, and in any suit brought by Beneficiary to foreclose this Deed.
4) To pay, at least ten days before delinquency all taxes and assessments affecting said property,
including assessments on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on
said property or any part thereof. which appear to be prior or superior hereto; all costs, fees and expenses of this
Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee. but
without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any
obligation hereof, may, make or do the same in such manner or to such extent as either may deem necessary to
protect the security thereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes;
appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge, or lien which in the
judgment of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary
expenses, employ counsel and pay his or her reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with
interest from date of expenditure at the amount allowed by law in effect at the date hereof; and to pay for any
statement provided for by law in effect at the date hereof regarding the obligation secured hereby any amount
demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is
demanded.
B. It is mutually agreed:
I) That any award of damages in connection with any condemnation for public use of or injury to
said property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such
moneys received by him in the same manner and with the same effect as above provided for disposition of
proceeds of fire or other insurance.
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not
waive his right either to require prompt payment when due of all other sums so secured or to declare default for
failure so to pay.
3) That at any time or from time to time, without liability therefor and without notice, upon written
request of beneficiary and presentation of this Deed, or a copy thereof; and without affecting the personal liability
of any person for payment of the indebtedness secured hereby. Trustee may: reconvey any part of said property;
consent to the making of any map or plat thereof; join in granting any easement thereon, or join in any extension
agreement or any agreement subordinating the lien or charge hereof.
4)
200152.7
That upon written request of Beneficiary stating that all sums secured hereby have been paid, and
Attachment 4
June 13, 2005
upon surrender of this Deed, or a copy thereof; and upon payment of its fees, Trustee shaH reconvey, without
warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shaH be
conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as "the person or
persons legaHy entitled thereto,'.
5) . That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power
and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said property,
reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness secured hereby or
in perfonnance of any agreement hereunder, to coHect and retain such rents, issues and profits as they become due
and payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or by
a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness
hereby secured, enter upon and take possession of said property or any part thereof; in his own name sue for or
otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs
and expenses of operation and collection, including reasonable attomey's fees. upon any indebtedness secured
hereby, and in such order as Beneficiary may detennine. The entering upon and taking possession of said property,
the coHection of such rents, issues and profits and the application thereof as aforesaid, shaH not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
6) That upon default by Trustor in payment of any indebtedness secured hereby or in perfonnance of
any agreement hereunder (including, without limitation, any default under the Note, Reimbursement Agreement or
Affordable Housing Covenant), Beneficiary may declare all sums secured hereby immediately due and payable by
delivery to Trustee of written declaration of default and demand for sale and of written notice of default and of
election to cause to be sold said property, which notice Trustee shaH cause to be filed for record. Beneficiary also
shall deposit with Trustee this Deed and. aH documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said
notice of default, and notice of sale having been given as then required by law, Trustee, without demand on
Trustor. shall sell said property at the time and place affixed by it in said notice of sale, either as a whole or in
separate parcels, and in such order as it may detennine, at public auction to the highest bidder for cash. in lawful
money ofthe United States, payable at time of sale. Trustee may postpone sale of aH or any portion of said
property by public announcement at such time and place of sale, and from time to time thereafter may postpone
such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such
purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The
recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person,
including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of
evidence of title in connection with sal,e, Trustee shall apply the proceeds of sale to payment of: all sums expended
under the tenns hereof; not then repaid, with accrued interest at the amount aHowed by law in effect at the date
hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled
thereto.
7) Beneficiary, or any successor in interest to any obligation secured hereby, may from time to time,
by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder,
which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of
the county or counties where said property is situated shaH be conclusive proof of proper substitution of such
successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title,
estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and
Beneficiary hereunder, the book and page where this Deed is recorded and the name and address ofthe new
Trustee.
8) That this Deed applies to, inures to the benefit of; and binds all parties hereto, their heirs,
legatees, devisees, administrators, executors, successors and assign. In this Deed, whenever the context
200152.7
Attachment 4
June 13, 2005
so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural.
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a
public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any
other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless
brought by Trustee.
10) All capitalized terms used in this Deed of Trust and which are not defmed shall have the meaning
ascribed to such terms under the Affordable Housing Covenant. Trustor agrees for itself and its successors and
assigns, and every successor to Trustor's interest in said property, or any part thereof, to abide by the terms of the
Affordable Housing Covenant during the Affordability Period, including, without limitation, that:
(a) Said property shall not be Transferred except to Permitted Transferees in accordance with
the requirements of Section 4 of the Affordable Housing Covenant; and
(b) Said property shall be subject to (i) the Further Encumbrance limitations set forth under
Section 5( c) of the Affordable Housing Covenant, and (ii) the terms and conditions of the Reimbursement
Agreement and the Affordable Housing Option Agreement.
The undersigned Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed
to him at his address hereinbefore set forth.
Signature of Trustor
Signature of Trustor
Printed Name:
Printed Name:
Dated
STATE OF CALIFORINIA
COUNTY OF
On before me,
Notary Public in and for said County and State, personally appeared
personally known to me (or 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
hislher/their signature(s) on the instrument the person(s)or the entity upon behalf of which the person(s) acted,
executed the instrument.
a
WITNESS my hand and official seal.
Signature
(This area for offidal notarial seal)
200152.7
Attachment 4
June 13,2005
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
TO
, TRUSTEE:
The undersigned is entitled to the indebtedness secured by the foregoing Deed of Trust. Said indebtedness secured
by said Deed of Trust, have been fully paid and satisfied: and you are hereby requested and directed, on payment to you of any
sums owing to you under the terms of said Deed of Trust, to cancel any evidences of indebtedness secured by said Deed of
Trust delivered to you herewith, together with the said Deed of Trust. and to reconvey, without warranty, to the parties
designated by the terms of said Deed of Trust, all the estate now held by you under the same.
Dated
Please mail Deed of Trust
and Reconveyance to:
Do not lose or destroy this Deed of Trust or the evidences of indebtedness its secures. They must be delivered to
the Trustee for cancellation before reconveyance will be made.
200152.7
Attachment 4
June 13, 2005
CERTIFICATE OF ACCEPTANCE OF DEED OF TRUST
(City of Tustin)
This is to certify that the interest in real property conveyed by the deed of trust dated , - from
, as trustor, to the CITY OF TUSTIN, a municipal corporation,
as beneficiary ("grantee"), is hereby accepted by the undersigned officer on behalf of the CITY OF TUSTIN pursuant to authority
conferred by Tustin City Council on March 3, 2003, and the grantee consents to recordation thereof by its duly authorized officer.
Dated:
Title: [City Manager or his designee, Assistant City Manager]
200152.7
Attachment 4
June 13, 2005
200152.7
ATTACHMENT NO. 5
AFFORDABLE HOUSING COVENANT (MODERATE INCOME)
Attachment 5
June 13,2005
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: Assistant City Manager
Exempt From Recording Fee Pursuant to Government Code
Section 27383
AFFORDABLE HOUSING COVENANT
(Moderate Income)
THIS AFFORDABLE HOUSING COVENANT (this "Covenant") is made as of
,200_, by
"Homeowner") in favor ofthe CITY OF TUSTIN, a municipal corporation (the "City").
RECITALS
(the
Homeowner has purchased a condominium located at
, Tustin, California, as such real property is more particularly described in
Exhibit "A" attached hereto (the "Unit"). The Unit is part of that certain housing development
known as "COLUMBUS GROVE" (the "Project").
8. Pursuant to the Housing Agreement between the City and Moffett Meadows
Partners LLC, a Delaware limited liability company (the "Developer"), a memorandum of which
has been recorded in the Official Records of the County of Orange, the Developer is required to
sell certain of the homes in the Project to "Moderate Income Households", at an "Affordable
Housing Cost for Moderate Income Households".
C. The Unit has been designated by the Developer as a Unit that is to be sold to a
Moderate Income Household.
D. Homeowner has represented to the Developer and the City that Homeowner and
Homeowner's household intend to reside in the Unit as the Homeowner's principal residence at
all times during the Homeowner's ownership of the Unit, that they wi\l not rent the Unit to
others, and that they are a Moderate Income Household.
E. In order to enable City to meet its continuing affordable housing obligations under
State Law, and because the City has facilitated the provision of Affordable Housing Units
through its adoption of the Specific Plan and housing incentives in the Density Bonus Ordinance,
the City has agreed to accept a promissory note executed by Homeowner (the "Affordable
Housing Note") in connection with Homeowner's purchase of the Unit. The Affordable
Housing Note is, or shall be, secured by the Affordable Housing Deed of Trust.
F. The City owns that certain parcel ofland adjacent to the Project that is more
particularly described on Exhibit "B" attached hereto.
G. This Covenant is intended to benefit the parcel of land described on Exhibit "B",
and the obligations and rights contained herein are intended to run with the land and to be
subordinate to a "First Lien" (as define below).
A.
200152.7
Attachment 5
June 13,2005
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
1.
DEFINITIONS.
"Affordability Period" means that period of time commencing upon the Date of this
Covenant and terminating on the forty-fifth (45th) anniversary of such date.
"Affordable Housing Cost" for an Affordable Housing Unit designated to be sold to, and
occupied by, a Moderate Income Household shall mean a price that does not exceed the
Affordable Housing Cost for a family size appropriate for the Unit for Moderate Income
Households. Affordable Housing Cost for an Affordable Housing Unit shall be calculated as of
the date of sale or resale of the Unit. For purposes of this Covenant, "family size appropriate for
the Unit" means two persons for a one bedroom house, three persons for a two bedroom house,
four persons for a three bedroom house, five persons for a four bedroom house, etc.
"Affordable Housing Cost for Moderate Income Households" means a cost per Unit for
Moderate Income Households whose gross income exceeds one hundred ten percent (110%) of
the annual Orange County Median Income adjusted for family size, in accordance with Health
and Safety Code Section 50052.5(b)(4), the City has determined and hereby agrees that the
"Affordable Housing Cost for Moderate Income Households" shall be a Monthly Housing Cost
not in excess of thirty five percent (35%) times one hundred twenty percent (120%) of the
annual Orange County Median Income, adjusted for family size appropriate for the
unit. Notwithstanding the foregoing, in accordance with Health and Safety Code Section
50052.5(b)(4), the City has determined and hereby agrees that, for a Moderate Income
Household with annual gross income that exceeds one hundred ten percent (110%) of the annual
Orange County Median Income, adjusted for family size appropriate for the Unit, no maximum
cap shall be place upon the annual payments. Affordable Housing Cost of Moderate Income
Households shall take into account principal and interest, loan insurance, property taxes, fire and
casualty insurance, utilities and Homeowners' Association fees.
"Affordable Housing Note" means that promissory note executed by Homeowner as part
of Homeowner's purchase of the Unit from the Developer. The principal amount of the
Affordable Housing Note is an amount not in excess of the difference between the appraised fair
market value of the Unit as if it was a Market Rate Unit, and the sales price required to sell the
Unit at an Affordable Housing Cost for Moderate Income Households, identified as of the date of
purchase.
"Affordable Housing Option Agreement" means the agreement attached hereto as
Exhibit "F", that provides an option to purchase in favor of the City as provided in Section 7,
which option shall be exercisable in the event that the Homeowner of a Unit is in breach of the
Homeowner's obligations in this Covenant or in the event the due date of the Affordable
Housing Note is accelerated as the result of a Transfer by the Homeowner.
"Affordable Housing Deed of Trust" means that certain deed of trust execut~d by
Homeowner which encumbers the Unit and secures the obligations of Homeowner and his or her
successors and assigns as provided in (a) this Covenant, (b) the Reimbursement Agreement
attached hereto as Exhibit "E", and (c) the Affordable Housing Note.
200152.7
Attachment 5
June 13,2005
"Affordable Housing Unit" means one (I) ofthe thirty (30) housing units to be provided
by Developer in the Project and for sale at an Affordable Housing Cost.
"City" means the City of Tustin, and the City's successors and assigns.
"County" means the County of Orange, California.
"Covenant" means this Affordable Housing Covenant.
"Date of this Covenant" means the date in the first paragraph of this Covenant.
"Default" means the failure of a party to perform any action or covenant required by this
Covenant within the time periods provided herein following notice and opportunity to cure. A
deed in lieu of foreclosure of the Affordable Housing Trust Deed shall not constitute a Default
under this Covenant.
"Developer" means Moffett Meadows Partners LLC, a Delaware limited liability
company, described in Recital B, or its City-approved assignee, as described in Section 6 of the
Housing Agreement.
"First Lien" means the lien of a purchase money Lender which secures the obligations of
the Homeowner to repay amounts owed to the Lender.
"Homeowner" or "Owner" means the person or persons set forth in the first paragraph of
this Covenant, and his, her or their successors and assigns.
"Household" means all persons residing in a unit.
"Legal Description" means the legal description of the Unit which is attached hereto as
Exhibit "A".
"Lender" means an institution making a purchase money loan to the Homeowner for the
purchase of the Unit.
"Market Rate Unit" means a dwelling unit within the Project that is not an Affordable
Housing Unit.
"Moderate Income Household" means a Household occupied by persons and families
whose gross income does not exceed the qualifying limits for moderate income families set forth
in Health and Safety Code Section 50093.
"Monthly Housing Cost" means, for a Moderate Income Household purchasing the Unit,
all of the following associated with the Unit, estimated or known as of the date of the proposed
sale of the Unit: (i) principal and interest payments on a fixed interest rate mortgage loan, and
any loan insurance fees associated therewith; (H) property taxes and assessments; (Hi) fire and
casualty insurance covering replacement value of property improvements; (iv) any homeowner
association fees; and (v) a reasonable utility allowance. Monthly housing cost ofa purchaser
shall be an average of estimated costs for the next twelve (12) month period.
200152.7
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"Notice of Intent to Transfer" means the Notice of Intent to Transfer attached hereto as.
Exhibit "C".
"Permitted Transfer" means any Transfer which is permitted pursuant to Section 4
hereof.
"Permitted Transferee" means a Transferee from the Homeowner or from any Permitted
Transferee who acquires ownership of the Unit as set forth in Section 4 hereof.
"Prohibited Transfer" means any Transfer which is not permitted pursuant to Section 4
hereof.
"Project" means that certain housing development known as Columbus Grove in which
the Unit is located.
"Reimbursement Agreement" means the Reimbursement Agreement to be executed by
the Homeowner in favor of the City, in the form attached hereto as Exhibit "E".
"Request for Notice" means the Request for Notice under Civil Code Section 2924b
attached hereto as Exhibit "D".
"Transfer" shall mean any sale, assignment, conveyance, lease or transfer, voluntary or
involuntary, of any interest in the Unit. Without limiting the generality ofthe foregoing,
Transfer shall include (i) a transfer by devise, inheritance or intestacy; (ii) the creation of a life
estate; (iii) the creation of a joint tenancy interest; (iv) a gift of all or any portion of the Unit; or
(v) any voluntary conveyance of the Unit.
"Transferee" shall mean any natural person or entity who obtains ownership rights in the
Unit pursuant to a Transfer.
"Unit" means that certain real property located at the street address set forth in Recital A
and legally described in the Legal Description.
2. COVENANT REGARDING SALES OF UNIT. Homeowner covenants and
agrees that, during the Affordability Period, each subsequent resale of the Unit by the
then-Homeowner of the Unit shall be to a Moderate Income Household, at an Affordable
Housing Cost for Moderate Income Households. Homeowner further covenants and agrees that,
during the Affordability Period, each Homeowner shall abide by and be bound by all the
obligations of Homeowner set forth in this Covenant. Homeowner agrees that the obligations of
Homeowner set forth in this Covenant shall be secured by the Affordable Housing Trust Deed
recorded concurrently with the recordation of this Covenant. .
HOMEOWNER AND EACH SUCCESSOR, HEIR OR ASSIGN OF HOMEOWNER
UNDERSTANDS THAT THE DETERMINATION OF THE AFFORDABLE HOUSING
COST CAN BE MADE ONLY AT THE TIME OF A PROPOSED SALE OR OTHER
TRANSFER, TAKING INTO CONSIDERATION PREVAILING INTEREST RATES,
THE OFFERED TERMS OF SALE, THE ECONOMIC CIRCUMSTANCES OF THE
200152.7
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PROPOSED PURCHASER AND OTHER FACTORS THAT CANNOT BE
ACCURA TEL Y PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED
HEREUNDER MAYBE LESS THAN THE FAIR MARKET VALUE OF THE SAME OR
OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS
COVENANT. HOMEOWNER AND EACH SUCCESSOR, HEIR OR ASSIGN OF
HOMEOWNER FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING
THE TRANSFER PRICE, THE PRIMARY OBJECTIVE OF THE CITY AND THIS
COVENANT IS TO PROVIDE HOUSING TO MODERATE INCOME HOUSEHOLDS
AT AN AFFORDABLE HOUSING COST.
Homeowner's Initials
3. HOMEOWNER'S REPRESENTATIONS AND WARRANTIES AS TO
THE SALE OF THE UNIT TO HOMEOWNER. Homeowner represents and warrants to the
Developer and the City that the financial and other information which Homeowner has provided
to the Developer and the City with respect to Homeowner's income and the purchase price of the
Unit was true and correct at the time such information was provided, and remains true and
correct as of the date of this Covenant.
4.
PERMITTED TRANSFERS OF THE UNIT.
a. Notice Required for a Transfer. During the Affordability Period, the
Unit, and any interest therein, shall not be Transferred by the Homeowner except with the
express written consent of the City, which consent shall be given only if the Transfer is in strict
compliance with the provisions of this Section 4. Each Owner understands that appropriate
transfers will be permitted and neither the City nor the Lender may determine that transfers
which result from marriage, divorce or death of a spouse, or which are otherwise required to be
permitted under applicable Federal law provided that the transferee otherwise complies with
Section 4(i), (H), (Hi), (iv), (v), and (vi), constitute a Default under this Covenant or the
Affordable Housing Deed of Trust. During the Affordability Period, in the event the then-
Homeowner ofthe Unit desires to Transfer the Unit, then prior to the Transfer such Homeowner
shall notify the City by delivering a Notice ofIntent to Transfer to the City. City hereby agrees
to permit Transfers of the Unit to proposed Transferees ("Permitted Transferees") provided the
Transfer satisfies all of the following conditions:
i. Notice to City. The Homeowner shall send the Notice ofIntent to
Transfer to the City at the address set forth in Section 22 hereof. The Notice ofIntent to Transfer
shall identify the proposed Transferee, certify that to the best knowledge of the Homeowner the
Transferee is a Moderate Income Household, certify that the sales price is no more than an
Affordable Housing Cost for Moderate Income Households, and shall include copies of the sales
contract, the grant deed or other document that is proposed to be used to effectuate the Transfer,
copies of documents verifying that the proposed Transferee is a Moderate Income Household
(including, but not limited to, documents verifying the income of the proposed Transferee) and
all other material documents related to the proposed Transfer.
ii. Qualification of Proposed Transferee. The proposed Transferee
shall provide and certify to the City such information as the City may request related to the
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proposed Transfer in the form provided by the City, including without limitation; the Social
Security Number of the proposed Transferee; copies of the federal income tax returns filed by
the proposed Transferee for the prior two (2) calendar years; copies of the two most current wage
earning statements of the proposed Transferee; a certification as to the income and family size of
the proposed Transferee; the purchase price the Proposed Transferee intends to pay for the Unit;
and a current appraisal reflecting the fair market value of the Unit on the assumption that the
Unit is free from the restrictions provided for in this Covenant. The proposed Transferee shall
also submit to the City an agreement by the Transferee to assume the obligations of a
Homeowner of the Unit as set forth in this Covenant in such form as the City may request.
iii. Certificates from Parties. The Homeowner and proposed
Transferee each shall certify in writing, in a form acceptable to the City, that the Transfer shall
be closed in accordance with, and only with, the terms of the sales contract and other documents
submitted to and approved by the City and that all consideration delivered by the proposed
Transferee to Homeowner has been fully disclosed to the City. The written certificate shall also
include a provision that in the event a Transfer is made in violation of the terms of this Covenant
or false or misleading statements are made in any documents or certificate submitted to the City
for its approval of the Transfer, the City shall have the right to file an action at law or in equity to
make the parties terminate and/or rescind the sales contract and/or declare the sale void
notwithstanding the fact that the Transfer may have closed and become final as between
Homeowner and its transferee.
iv. Agreement to Assume tbe Obligations of This Covenant. The
grant deed or other document effectuating the Transfer of the Unit shall include the following:
(a) references to this Covenant and the obligation of the Transferee to be bound by all the
obligations of Homeowner set forth in this Covenant, (b) a reference to the Affordable Housing
Trust Deed, (c) a reference to the Affordable Housing Option Agreement, (d) a reference to the
due on sale provisions of the Affordable Housing Note, (e) a reference to the Reimbursement
Agreement and (f) a covenant that will require the Transferee, and any successor or assign ofthe
Transferee, to include in any document Transferring the Unit a reference to this Covenant, the
Affordable Housing Trust Deed, the Affordable Housing Option Agreement, the Reimbursement
Agreement, the due on sale provisions of the Affordable Housing Note, and the obligation of the
Transferee to be bound by the obligations set forth in this Covenant, the Affordable Housing
Trust Deed, the Affordable Housing Option Agreement, the Reimbursement Agreement and the
due on sale provisions of the Affordable Housing Note.
v. Agreement to Increase Amount due on the Affordable Housing
Note. The Transferee must agree to increase the amount of the Affordable Housing Note to the
amount by which the fair market value of the Unit at the time of the closing of the Transfer is in
excess of the sum of the Affordable Housing Cost of such Unit as of the date of the closing of the
Transfer. Any interest that has accrued on the Affordable Housing Note as of the date of the
closing of the Transfer shall be deemed to be included in the increased principal amount of the
Affordable Housing Note, and interest shall begin accruing on the increased principal amount of
the Affordable Housing Note as of the date of the closing of the Transfer at the rate provided in
the Affordable Housing Note. Except for such increase in the principal amount of the Affordable
Housing Note and the reduction to zero of accrued interest due on the Affordable Housing Note,
the Affordable Housing Note, the Affordable Housing Trust Deed, the Affordable Housing
Option Agreement and the Reimbursement Agreement shall remain in full force and effect.
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June 13,2005
vi. The City's Title Policy. The City must receive a title policy, in an
amount equal to the amount then due on the Affordable Housing Note as increased as provided
in this Section 4, insuring the Affordable Housing Trust Deed as a monetary lien of second
priority, i.e., subordinate in priority among monetary liens only to the monetary lien of any First
Lien recorded at the time of sale which First Lien shall secure an amount not in excess of the
then Affordable Housing Cost of the Unit.
vii. Spousal Transfers. Notwithstanding the foregoing provisions of
Section 4( a )(vi), in the event of a transfer to a spouse in a dissolution proceeding, the City shall
not require a new title policy, nor shall the City require reimbursement for its costs.
b. Notice of Prohibited Transfer. Within fifteen (15) calendar days after
the receipt by the City of the notices, documents and agreements referred to in Section 4(a), the
City shall determine and give notice to the Homeowner as to whether the proposed Transfer is a
Permitted Transfer or Prohibited Transfer. Transfers that result from marriage, divorce, or death
of a spouse, or that are otherwise required to be permitted under applicable Federal law shall not
be deemed by the City as a Prohibited Transfer so long as the Transferee complies with this
Section 4(i), (ii), (iii), (iv), (v) and (vi). In the event that the proposed Transfer is a Prohibited
Transfer, such notice to the Homeowner shall specify why the Transfer is a Prohibited Transfer.
Ifthe violation is not corrected to the satisfaction of the City within ten (10) calendar 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 Covenant. Upon the declaration of a
Default, the City may apply to a court of competent jurisdiction for specific performance of this
Covenant, for an injunction prohibiting a proposed sale or Transfer in violation of this Covenant,
for a declaration that the Prohibited Transfer is void, or for any such other relief as may be
appropriate.
c. Delivery of Documents After the Closing. Upon the close of the
proposed Transfer, the transferor and the Transferee, as applicable, shall provide the City with a
copy of the final sales contract, settlement statement, escrow instructions, all certificates required
by this Section 4 and any other documents which the City may reasonably request.
d. Refinancings. This Section 4 shall not prohibit the encumbering of title
for the sole purpose of securing financing of the purchase price of the Unit upon a Transfer
thereof; however, any such financing (i) must be a First Lien, (ii) must not be in excess of the
Affordable Housing Cost of such Unit as of the date ofthe financing and (iii) must be in
compliance with the Affordable Housing Trust Deed.
5.
ENCUMBRANCES.
a. Subordination. The provisions of the Affordable Housing Trust Deed
and the Affordable Housing Option Agreement and the Reimbursement Agreement shall be
subordinate to any First Lien on the Unit that secures the payment of a principal amount that is
not in excess, as of the time the First Lien is recorded against the Unit, of the Affordable
Housing Cost of the Unit. Notwithstanding the fact that the Covenant and Affordable Deed of
Trust is subordinate to an appropriate First Lien, said fact shall not in any manner modify the
obligations from time to time existing between the Owner and the City. The intent of this
provision regarding subordination is that in the event of a foreclosure of the First Lien or the
recordation ofa deed in lieu of foreclosure of the First Lien, this Covenant shall no longer
200152.7
Attachment 5
June 13,2005
encumber the Unit and shall not be binding upon the Lender or Lender's successors or assigns,
but shaH in aH cases remain binding upon the Owner. The City shaH execute such written
instruments for the subordination of its rights under the Affordable Housing Trust Deed, the
Affordable Housing Option Agreement and the Reimbursement Agreement, as may reasonably
be requested by the Lender. The City's agreement to so subordinate its rights is subject to
agreement in writing by the Lender providing the City the foHowing rights:
i. Upon the occurrence of a Default under any of the First Lien
documents, the holder of the First Lien shaH promptly notify the City of the occurrence of such
Default, which notification shaH be provided to the City contemporaneously with the delivery to
Homeowner of any notice of Default under any of the First Lien documents;
ii. The City shaH have the right, during the cure periods which apply
to the Homeowner pursuant to the First Lien documents and any cure period which may apply to
the City under applicable law, to cure the Homeowner's Default relative to the First Lien; and
iii. After a Default on any of the First Lien documents but prior to a
foreclosure sale or deed in lieu assignment of the Unit, the City shaH have the right to take title to
the Unit and cure the Default relative to the First Lien documents, without the holder of the First
Lien exercising any right it might otherwise have to accelerate the obligations secured by the
First Lien by reason of such title transfer, so long as the City promptly cures any such Default
upon taking title to the Unit.
b. Request for Notice of Default. The City may cause a Request for Notice
to be recorded on the Unit subsequent to the recordation of the First Lien deed of trust or
mortgage requesting a statutory notice of Default as set forth in California Civil Code
Section 2924b.
c. Further Encumbrances. Homeowner agrees that he or she shaH not
record or cause the recordation of any deed of trust, mortgage, lien or other instrument creating a
security interest in or to the Unit (a "Further Encumbrance") other than a First Lien, the
Affordable Housing Trust Deed and the Affordable Housing Option Agreement.
6. REIMBURSEMENT AGREEMENT. Homeowner covenants and agrees to
pay timely any and aH amounts due and payable on the obligations secured by the First Lien. At
the time of the close of escrow with respect to any Transfer, each Homeowner shall enter into a
Reimbursement Agreement, in the form attached hereto as Exhibit hE", which provides that the
City may make payments to cure a Default or delinquency of any obligation secured by the First
Lien, on the condition that the Homeowner agrees to reimburse the City for any payments made
to cure such Default or delinquency. The Homeowner's repayment obligations pursuant to the
Reimbursement Agreement shall be secured by the Affordable Housing Trust Deed.
7. OPTION TO ACQUIRE UNIT UPON DEFAULT OF OBLIGATIONS
UNDER THIS COVENANT. At the time of the initial close of escrow and at close of escrow
with respect to any Transfer, each Homeowner shaH enter into an Option Agreement, in the form
attached hereto as Exhibit "F", which grants to City an option to purchase the Unit in the event
that the Homeowner is in Default of any of his or her obligations under this Covenant.
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Attachment 5
June 13,2005
8. USES. Homeowner covenants and agrees to devote, use and maintain the Unit in
accordance with this Covenant. All uses conducted on the Unit, including, without limitation, all
activities undertaken by the Homeowner pursuant to this Covenant, shall conform to all
applicable provisions of the Tustin Municipal Code, and the recorded documents pertaining to
and running with the Unit.
9.
NONDISCRIMINA nON COVENANTS.
a. Homeowner covenants by and for himself or herself, and any successors in
interest, that there shall be no discrimination against or segregation of any person or group of
persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national
origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the Unit, nor shall the Homeowner or any person claiming under or through him or her establish
or permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Unit. The foregoing covenants shall run with the land.
b.
Redevelopment Law; Form of Nondiscrimination and Nonsegregation
Clauses.
Homeowner shall refrain from restricting the sale of the property on the basis of the race,
color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry of any
person. All deeds, leases or contracts shall contain or be subject to substantially the following
non-discrimination or non-segregation clauses:
i. In deeds: "The grantee herein covenants by and for itself, its
successors and assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of persons on account of race,
color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed,
nor shall the grantee itself or any person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the
land herein conveyed. The foregoing covenants shall run with the land."
ii. In leases: "The lessee herein covenants by and for itself, its
successors and assigns, and all persons claiming under or through them, and this lease is made
and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person or group of persons, on
account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or
ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of
the land herein leased, nor shall lessee itself, or any person claiming under or through it,
establish or permit such practice or practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or
vendees in the land herein leased."
iii. In contracts: "There shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion, sex,
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Attachment 5
June 13,2005
sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person
claiming under or through it, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees ofthe land.
10. MAINTENANCE OF UNIT. Homeowner shall maintain the improvements and
landscaping on the Unit in a manner consistent with community standards which will uphold the
value of the Unit, in accordance with the Tustin Municipal Code. Homeowner also agrees to
comply with all applicable federal, state and local laws.
II. RENTALS I OCCUPANCY STANDARDS. The Unit shall be used as the
principal residence of Homeowner and Homeowner's family and for no other purpose.
Homeowner shall not enter into an agreement for the rental or lease of the Unit, and Homeowner
shall not otherwise rent or lease the Unit. The City may grant a temporary waiver of the above
requirements for good cause, in the City's sole and absolute discretion. Examples of situations
which may result in the grant ofa temporary waiver include: (i) rental by Owner where
necessary to accommodate a mandatory job transfer required by Owner's employer (not
including Owner, if Owner is self-employed); (ii) rental necessitated by a medical or financial
emergency, proof of which emergency has been delivered to the City, and (iii) other situations
which constitute a "hardship" situation consistent with the intentions of this Covenant and the
goal of the City to have affordable Owner occupied homes in the Project. The maximum
occupancy ofthe Unit shall not exceed three persons if the Unit is a one bedroom home, five
persons if the Unit is a two bedroom home, or seven persons ifthe Unit is a three bedroom home.
Homeowner shall, commencing upon the first anniversary of the date of this Covenant first set
forth above and on each succeeding anniversary thereafter, submit to the City an affidavit of
occupancy in the form provided by the City.
12. EFFECT OF VIOLA nON OF THE TERMS AND PROVISIONS OF THIS
COVENANT.
a. In General. The covenants established in this Covenant shall, without
regard to technical classification and designation, be binding upon the Unit against which it is
recorded and the Homeowner thereof and its successors and/or assigns owning all or any interest
therein, (a) for the benefit and in favor ofthe City, its successors and assigns and (b) for the
benefit of the property described on Exhibit "B" to this Covenant, and the City as the owner
thereof and its successors and assigns owning all, or any portion of such property. The
covenants contained in this Covenant shall remain in effect for the periods of time specified
herein. The covenants against discrimination shall remain in effect in perpetuity. The City is
deemed the beneficiary of the terms and provisions of this Covenant and of the covenants
running with the land, for and in its own rights and for the purposes of protecting the interests of
the community and other parties, public or private, in whose favor and for whose benefit this
Covenant and the covenants running with the land have been provided. This Covenant and the
covenants herein shall run in favor of the City, without regard to whether the City has been,
remains or is a Homeowner of any land or interest therein in the Unit or in the Project Area. The
City shall have the right, if the Covenant or covenants are breached, to exercise all rights and
remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to
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enforce the curing of such breaches to which it or any other beneficiaries of this Covenant and
covenants may be entitled.
b. Notice of Default. Failure or delay by Homeowner to perform any term
or provision of this Covenant which is not cured within thirty (30) days after receipt of notice
from the City constitutes a Default under this Covenant; provided, however, if such Default is of
the nature requiring more than thirty (30) days to cure, Homeowner may avoid Default hereunder
by immediately commencing to cure within such thirty (30) day period, and thereafter diligently
pursuing such cure to completion. Failure or delay in giving notice by the City shall not
constitute a waiver of any Default, nor shall it change the time of Default.
c. City's Remedies. Upon the declaration of a Default, the City may
(i) apply to a court of competent jurisdiction for specific performance, for an injunction
prohibiting any act or omission in violation of this Covenant, or for any such other relief as may
be appropriate, (ii) exercise the City's rights under the Affordable Housing Trust Deed,
including, without limitation, foreclosure of the Unit, and (iii) pursue such other rights and
remedies permitted under applicable law.
d. Prohibited Transfers Void. Any attempt by the Homeowner to make a
Prohibited Transfer of title to or any interest in the Unit in violation of this Covenant shall be
voidable by City.
13. INDEMNIFICA nON. Homeowner shall defend, indemnify and hold harmless
the City and its officers, officials, agents, employees, representatives, and volunteers from and
against any loss, liability, claim, or judgment relating in any manner to the Homeowner's use of
the Unit or Homeowner's violation of this Covenant. The Homeowner shall remain fully
obligated for the payment of taxes, liens and assessments related to the Unit. There shall be no
reduction in taxes for Homeowner, nor any transfer of responsibility to the City to make such
payments, by virtue of this Covenant.
14. INSURANCE. Homeowner shall maintain, during the term ofthis Covenant, an
all-risk property insurance policy insuring the Unit in an amount equal to the full replacement
value of the structures on the Unit. The policy shall contain a statement of obligation on behalf
of the carrier to notify the City of any material change, cancellation or termination of coverage at
least thirty (30) days in advance of the effective date of such material change, cancellation or
termination. Homeowner shall transmit a copy of the certificate of insurance to the City within
thirty (30) days of the effective date of this Covenant, and Homeowner shall annually transmit to
the City a copy of the certificate of insurance, signed by an authorized agent of the insurance
carrier setting forth the general provisions of coverage. The copy of the certificate of insurance
shall be transmitted to the City at the address set forth in Section 22 hereof. Any certificate of
insurance must be in a form, content and with companies approved by the City.
15. TIME OF THE ESSENCE. Time is of the essence with respect to all provisions
of this Covenant in which a definite time for performance is specified; provided, however, that
the foregoing shall not be construed to limit or deprive a party of the benefits of any grace or use
period provided for in this Covenant.
16. NO WAIVER. No waiver of any provision or consent to any action under this
Covenant shall constitute a waiver of any other provision or consent to any other action, whether
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June 13,2005
or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a
party to provide a waiver in the future except to the extent specifically set forth in writing. Any
waiver given by a party shall be null and void if the party requesting such waiver has not
provided a full and complete disclosure of all material facts relevant to the waiver requested.
17. FURTHER ASSURANCES. Homeowner shall execute any further documents
consistent with the terms of this Covenant, including documents in recordable form, as the City
shall from time to time find necessary or appropriate to effectuate its purposes in entering into
this Covenant.
18. GOVERNING LAW. Homeowner hereby agrees to comply with all ordinances,
rules and regulations of the City. Nothing in this Covenant is intended to be, nor shall it be
deemed to be, a waiver of any City ordinance, rule or regulation. This Covenant shall be
governed by the laws of the State of California. Any legal action brought under this Covenant
must be instituted in the Superior Court of the County of Orange, State of California, or in the
Federal District Court in the Central District of California.
19. AMENDMENT OF COVENANT. No modification, rescission, waiver, release
or amendment of any provision of this Covenant shall be made except by a written agreement
executed by Homeowner and the City.
20. CITY MAY ASSIGN. The City may, at its option, assign its rights hereunder
without obtaining the consent of the Homeowner.
21. HOMEOWNER ASSIGNMENT PROffiBITED. In no event shall
Homeowner assign or transfer any portion of this Covenant without the prior express written
consent of the City, which consent shall be given by the City only in the event that the City
determines the Transfer fully complies with Section 4. This section shall not affect or diminish
the City's right to assign all or any portion of its rights hereunder.
22. NOTICES. All notices, demands, consents, requests and other communications
required or permitted to be given under this Covenant shall be in writing and shall be deemed
conclusively to have been duly given (a) when hand delivered to the other party; (b) three (3)
business days after such notice has been sent by United States mail via certified mail, return
receipt requested, postage prepaid, and addressed to the other party as set forth below; or (c) the
next business day after such notice has been deposited with a national overnight delivery service
reasonably approved by the parties (Federal Express and Airborne Express are deemed approved
by the parties), postage prepaid, addressed to the party to whom notice is being sent as set forth
below with next-business-day delivery guaranteed, provided that the sending party receives a
confirmation of delivery from the delivery service provider. Unless otherwise provided in
writing, all notices hereunder shall be addressed as follows:
To Homeowner:
200152.7
Attachment 5
June 13,2005
To City:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Manager
and Attention: Assistant City Manager
Either party may change its address for notice by giving written notice thereof to the
other party.
23. ATTORNEYS' FEES AND COSTS. If any party to this Covenant institutes
any action, suit, counterclaim, appeal, arbitration or mediation for any relief against another
party, declaratory or otherwise (collectively an "Action"), to enforce the terms hereof or to
declare rights hereunder or with respect to any inaccuracies or material omissions in connection
with any of the covenants, representations or warranties on the part of the other party to this
Agreement, then the prevailing party in such Action, whether by arbitration or final judgment,
shall be entitled to have and recover of and from the other party all costs and expenses of the
Action, including reasonable attorneys' fees and costs (at the prevailing party's attorneys' then-
prevailing rates as increased from time to time by the giving of advanced written notice by such
counsel to such party) incurred in bringing and prosecuting such Action and/or enforcing any
judgment, order, ruling or award (collectively, a "Decision") granted therein, all of which shall
be deemed to have accrued on the commencement of such Action and shall be paid whether or
not such Action is prosecuted to a Decision. Any Decision entered in such Action shall contain a
specific provision providing for the recovery of attorneys' fees and costs incurred in enforcing
such Decision. A court or arbitrator shall fix the amount of reasonable attorneys' fees and costs
upon the request of either party. Any judgment or order entered in any final judgment shall
contain a specific provision providing for the recovery of all costs and expenses of suit, including
reasonable attorneys' fees and expert fees and costs (collectively "Costs") incurred in enforcing,
perfecting and executing such judgment. For the purposes of this paragraph, Costs shall include,
without limitation, in addition to Costs incurred in prosecution or defense of the underlying
action, reasonable attorneys' fees, costs, expenses and expert fees and costs incurred in the
following: (a) post judgment motions and collection actions; (b) contempt proceedings;
(c) garnishment, levy, debtor and third party examinations; (d) discovery; (e) bankruptcy
litigation; and (t) appeals of any order or judgment. "Prevailing party" within the meaning of
this section includes, without limitation, a party who agrees to dismiss an Action in consideration
for the other party's payment of the amounts allegedly due or performance of the covenants
allegedly breached, or obtains substantiaUy the relief sought by such party.
24. ENTIRE AGREEMENT. This Covenant, together with all attachments hereto,
constitutes the entire understanding and agreement of the parties. This Covenant integrates all of
the terms and conditions mentioned herein or incidental thereto, and supersedes all prior
negotiations, discussions and previous agreements between the City and the Homeowner
concerning all or any part of the subject matter of this Covenant.
25. SEVERABILITY. So long as the material bargain of the parties may be
preserved, any provision of this Covenant that is deemed to be illegal, invalid or unenforceable
by an arbitrator or court of competent jurisdiction shall be ineffective to the extent of the
invalidity or unenforceability of such provision and shall be deemed stricken from this Covenant.
Any stricken provision shall not affect the legality, enforceability or validity of the remainder of
200152.7
Attachment 5
June 13,2005
this Covenant. If any provision or part thereof of this Covenant is stricken in accordance with
the provisions of this Section, then the stricken provision shall be replaced, to the extent possible,
with a legal, enforceable and valid provision that is as similar in tenor and intent to the stricken
provision as is legally possible. Any such invalidity or unenforceability of any provision in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
26. COUNTERPARTS. This Covenant may be executed in two or more separate
counterparts, each of which, when so executed, shall be deemed to be an original. Such
counterparts shall, together, constitute and shall be one and the same instrument. This Covenant
shall not be effective until the execution and delivery by the parties of at least one set of
counterparts. The parties hereunder authorize each other to detach and combine original
signature pages and consolidate them into a single identical original. Anyone of such
completely executed counterparts shall be sufficient proof of this Covenant.
27. EXHIBITS. Each of the exhibits referenced in this Covenant and attached hereto
is incorporated into this Covenant by this reference as though fully set forth in this Section.
IN WITNESS WHEREOF, the parties have executed this Covenant as of the date set forth
above.
HOMEOWNER:
By:
Printed Name:
By:
Printed Name:
CITY:
CITY OF TUSTIN, a municipal corporation
By:
200152.7
Attachment 5
June 13,2005
EXHIBIT "A"
LEGAL DESCRIPTION OF UNIT
[To Be Inserted)
EXHIBIT A
EXHIBIT "8"
LEGAL DESCRIPTION OF CITY'S PROPERTY
THE BENEFITED PROPERTY
COLUMBUS GROVE
Reuse Plan Disposal Parcels I-B-2 and I-B-3.
EXHIBIT B
EXHIBIT "C"
NOTICE OF INTENT TO TRANSFER
NOTICE OF INTENT TO TRANSFER MUST BE DELIVERED TO THE CITY OF TUSTIN
PRIOR TO PROCEEDING WITH ANY TRANSFER OF THE PROPERTY.
From:
("Homeowner")
To:
City ofTustin
300 Centennial Way
Tustin, California 92780
Attn: Assistant City Manager
Re:
(street address)
Tustin, California (the "Unit")
Circle appropriate words: Homeowner desires to [sell, convey, transfer by inheritance or devise,
lease, gift, otherwise transfer] the Unit.
Proposed Transferee:
Ages of Proposed Transferee:
Income of Proposed Transferee:
Household Size of Proposed Transferee:
Proposed Transfer Price:
If the City has a program to help locate a Moderate Income purchaser, does the Homeowner
want the City to help look for a Moderate Income purchaser to buy the Unit?
Yes:- No:
Date
Signature of Homeowner
(->
daytime telephone number of Homeowner
EXHIBIT C
EXHIBIT "D"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: Assistant City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY
Exempt from recording fees pursuant to
Government Code §27383.
Request for Notice Under Civil Code Section 2924b
In accordance with Section 2924b of the California Civil Code, request is hereby made that a
copy of any Notice of Default and a copy of any Notice of Sale under the Deed of Trust recorded
as Instrument No. on , 200_, in Book -, Page -, Official
Records of Orange County, California, and describing land therein as
See Exhibit A attached hereto
executed by , as Trustor, in
which , is named as
Beneficiary, and , as Trustee, be
mailed to CITY OF TUSTIN, at 300 Centennial Way, Tustin, California 92780, Attention:
Assistant City Manager.
NOTICE: Ä. COpy OF ANY NOTICE OF DEF AUL T AND OF ANY NOTICE OF SALE
WILL BE SENT ONLY TO THE ADDRESS CONTAINED THIS RECORDED REQUEST. IF
YOUR ADDRESS CHANGES, A NEW REQUEST MUST BE RECORDED.
CITY OF TUSTIN
By:
EXHIBIT D
EXHIBIT A TO EXHIBIT D
LEGAL DESCRIPTION
PARCEL 1:
IN THE CITY OF TUSTIN AND CITY OF IRVINE, COUNTY OF ORANGE, STATE OF
CALIFORNIA, BEING THAT PORTION OF BLOCKS 61 AND 62 OF IRVINE'S
SUBDIVISION AS SHOWN ON THE MAP FILED IN BOOK I, PAGE 88 OF
MISCELLANEOUS RECORD MAPS, AND AS SHOWN ON A MAP FILED IN BOOK 165,
PAGES 31 THROUGH 39, INCLUSIVE, OF RECORDS OF SURVEY, BOTH OF THE
RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHEASTERLY CORNER OF PARCEL I-B-3 AS
DESCRIBED IN A DOCUMENT RECORDED MAY 14, 2002 AS INSTRUMENT NO.
20020404592 OF OFFICIAL RECORDS OF SAID COUNTY AND SAID CORNER ALSO
BEING THE INTERSECTION OF THE NORTHWESTERLY LINE OF HARVARD
A VENUE (HAVING A NORTHWESTERLY HALF-WIDTH OF 36 FEET) AND THE
SOUTHWESTERLY LINE OF EDINGER AVENUE (HAVING A SOUTHWESTERLY
HALF-WIDTH OF 60 FEET) AS SHOWN ON SAID RECORD OF SURVEY, SAID
SOUTHWESTERLY LINE OF EDINGER AVENUE BEING A CURVE CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 1740.00 FEET, A RADIAL LINE TO SAID
INTERSECTION BEARS NORTH 5244'05" EAST;
THENCE ALONG THE NORTHEASTERLY AND NORTHWESTERLY LINE OF SAID
PARCEL THE FOLLOWING FOUR (4) COURSES:
I)
NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE AND SAID CURVE
33.68 FEET THROUGH A CENTRAL ANGLE OF I 06' 33" TO A LINE THAT IS
PARALLEL WITH AND 69 FEET NORTHWESTERLY FROM THE CENTERLINE
OF SAID HARVARD A VENUE AS SHOWN ON SAID RECORD OF SURVEY;
2)
THENCE ALONG SAID PARALLEL LINE SOUTH 4037' 53" WEST 1228.30 FEET
TO THE TRUE POINT OF BEGINNING;
3)
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 40 37' 53" WEST
38.00 FEET TO AN ANGLE POINT THEREIN;
4)
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 40 37' 37" WEST
1619.79 FEET TO A POINT ON THE NORTHWESTERLY LINE OF THE LAND
DESCRIBED IN THE DOCUMENT RECORDED IN BOOK 10657, PAGE 412 OF
OFFICIAL RECORDS OF SAID COUNTY AND AS SHOWN ON SAID RECORD OF
SURVEY, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 1894.00 FEET, A RADIAL
LINE TO SAID BEGINNING BEARS SOUTH 27 21' 58" EAST;
EXHIBIT "A" TO EXHIBIT 0
THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE AND SAID
CURVE 140.26 FEET THROUGH A CENTRAL ANGLE OF 4 14' 35"; THENCE
CONTINUING ALONG SAID NORTHWESTERLY LINE SOUTH 66 52' 37" WEST 1087.44
FEET TO A POINT ON A CURVE THAT is CONCENTRIC WITH AND 118.75 FEET
NORTHEASTERLY FROM THE CENTERLINE OF WARNER A VENUE AS SHOWN ON
SAID RECORD OF SURVEY, SAID CURVE BEING CONCAVE SOUTHWESTERLY
HAVING A RADIUS OF 1718.75 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH
6845' 45" EAST;
THENCE CONCENTRIC AND PARALLEL WITH SAID CENTERLINE OF WARNER
A VENUE THE FOLLOWING TWO (2) COURSES:
2)
I)
NORTHERLY AND NORTHWESTERLY ALONG SAID CURVE 843.12 FEET
THROUGH A CENTRAL ANGLE OF 28 06' 22";
THENCE NORTH 49 20' 37" WEST 468.05 FEET TO THE BEGINNING OF A
CURVE CONCAVE EASTERLY HAVING A RADIUS OF 35.00 FEET;
THENCE NORTHWESTERLY, NORTHERLY AND NORTHEASTERLY ALONG
SAID CURVE 62.22 FEET THROUGH A CENTRAL ANGLE OF 101 51' 19" TO
THE SOUTHEASTERLy LINE OF PETERS CANYON CHANNEL (HA VIN A
SOUTHEASTERLY HALF-WIDTH OF 90 FEET) AS DESCRIVED IN THE
DOCUMENT RECORDED IN BOOK 6681, PAGE 721 OF OFFICIAL RECORDS OF
SAID COUNTY AND AS SHOWN ON SAID RECORD OF SURVEY; THENCE
ALONG SAID SOUTHEASTERLY LINE OF SAID PETERS CANYON CHANNEL
NORTH 52 30' 42" EAST 417.91 FEET TO THE CITY OF IRVINE AS SHOWN ON
SAID RECORD OF SURVEY; THENCE LEAVING SAID SOUTHEASTERLY LINE
AND ALONG SAID CITY BOUNDARY LINE SOUTH 49 21' 01" EAST 45.99 FEET
TO A LINE THAT IS PARALLEL WITH AND 135.00 FEET SOUTHEASTERLY
FROM THE CENTERLINE OF SAID PETERS CANYON CHANNEL; THENCE
ALONG SAID PARALLEL LINE NORTH 52 32' 09" EAST 289.49 FEET; THENCE
LEAVING SAID PARALLEL LINE NORTH 37 27' 51" WEST 5.00 FEET TO A LINE
THAT IS PARALLEL WITH AND 130.00 FEET SOUTHEASTERLY FROM THE
CENTERLINE OF SAID PETERS CANYON CHANNEL;
I)
2)
THENCE PARALLEL AND CONCENTRIC WITH SAID CENTERLINE THE
FOLLOWING THREE (3) COURSES:
NORTH 52 32' 09" EAST 1277.26 FEET TO THE BEGINNING OF A CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 2130.00 FEET;
NORTHEASTERLY ALONG SAID CURVE 238.53 FEET THROUGH A CENTRAL
ANGLE OF 6 24' 58";
NORTH 46 07' II" EAST 210.47 FEET TO A POINT ON SAID SOUTHEASTERLY
LINE OF PETERS CANYON CHANNEL;
3)
EXHIBIT "A" TO EXHIBIT D
THENCE ALONG SAID SOUTHEASTERLY LINE THE FOLLOWING SIX (6) COURSES:
I)
2)
3)
4)
5)
6)
SOUTH 4919' 03" EAST 20.10 FEET;
NORTH 46 07' II" EAST 74.99 FEET;
NORTH 49 19' 04" WEST 60.28 FEET;
NORTH 46 07' 11" EAST 32.14 FEET;
SOUTH 49 19' 04" EAST 60.28 FEET;
NORTH 46 07' II" EAST 22.10 FEET;
THENCE LEAVING SAID SOUTHEASTERLY LINE SOUTH 49 19' 04" EAST 1311.03
FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM PARCEL I-B-2 AS DESCRIBED IN SAID INSTRUMENT NO.
20020404592, OFFICIAL RECORDS.
PARCEL 2:
NON-EXCLUSIVE EASEMENTS FOR INGRESS AND EGRESS OVER THAT CERTAIN
LAND RESERVED BY THE UNITED STATES OF AMERICA, FOR SAID PURPOSES, IN
THE DEED RECORDED MAY 14, 2002 AS INSTRUMENT NO. 2002-0404592, IN THE
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXHIBIT "A" TO EXHIBIT D
COUNTY OF
)
) ss.
)
STATE OF CALIFORNIA
On
, before me,
(Print Name of Notary Public)
, Notary Public,
personally appeared
0
0
personally known to me
-or-
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within
instrument and acknowledged to me that helshelthey executed the same in hislherltheir 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.
WITNESS my hand and official seal.
Signature of Notary
Signer(s) Other Than Named Above
200152.7
Attachment 5
June 13,2005
EXHIBIT "E"
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT, dated as of ,20- (the
"Reimbursement Agreement"), is hereby entered into by and between the CITY OF TUSTIN,
a municipal corporation (the "City"), and
(the "Homeowner").
RECITALS
A.
The Homeowner is purchasing a condominium located at
, Tustin, California (the
"Unit").
8. The City and the Homeowner have executed an Affordable Housing Covenant (the
"Covenant") which requires for a forty-five year period commencing that the
Unit be sold only to Moderate Income Households at an Affordable Housing Cost, which may
result in purchase prices which are substantially less than the current fair market value of the
Unit.
C. The Homeowner is obtaining a purchase money loan (the "Loan") from a private lender
(the "Lender") for a portion of the costs of acquisition of the Unit which loan shall be secured
by a First Lien (as defined in the Covenant) against the Unit. A description of the Loan is set
forth in Exhibit "I" hereto, which is incorporated herein.
D. . The Homeowner may Transfer his, her or their interests in the Unit to a Permitted
Transferee who may in turn obtain a First Lien purchase money loan from an institutional lender
for a portion of the costs of acquisition of the Unit. This subsequent lender and loan are also
hereinafter referred to as the "Lender" and the "Loan".
E. Pursuant to the Covenant, the City has the right to acquire the Unit in the event, among
other things, that it becomes subject to a foreclosure proceeding, and the City has the right to
make payments to cure a Default or delinquency on the Loan.
F. The right to make payments to cure a Default or delinquency on the Loan will be of
benefit to the City by allowing the City to prevent the foreclosure of the Unit, which will prevent
the possible early termination of the Covenant.
G. The City's right to make payments to cure a Default or delinquency on the Loan will also
be of benefit to the Homeowner, by allowing the Homeowner to retain ownership of the Unit and
to avoid foreclosure.
H. The City desires to obtain the authority to make payments to cure a Default or
delinquency on the Loan, on the condition that the Homeowner agrees to reimburse the City for
any payments made to cure a Default or delinquency on the Loan. In order to induce the City to
obtain the authority to make payments to cure a Default or delinquency on the Loan, the
Homeowner is willing to agree to reimburse the City for any payments made to cure a Loan
EXHIBIT E
Default or delinquency. The Homeowner understands and acknowledges that the City would not
make payments to cure a Loan Default or delinquency but for the Homeowner's agreement to
make such reimbursements to the City, as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is agreed
by and between the parties hereto as follows:
1. Cure of Loan Default. The City hereby has the right, but not the obligation, to
make payments to the Lender to fully or partially cure any Default or delinquency in payments of
the Loan.
2. Reimbursement Obligation of Homeowner. The Homeowner hereby agrees to
reimburse the City for any and all payments made by the City to fully or partially cure any
Default or delinquency in payments of the Loan. Such payments shall be made within thirty (30)
days after written demand is made therefore from the City to the Homeowner. The City may
make such written demand to the Homeowner at any time after making such payments. If such
written demand is made by personal delivery of such demand given to the Homeowner, or left at
the Unit, such demand shall be deemed given immediately upon such delivery. If such written
demand is made by reliable overnight delivery service (such as FedEx), such demand shall be
deemed given one business day after deposit of the written demand with the overnight delivery
service. If such written demand is made by registered or certified U.S. Mail, such demand shall
be deemed given three business days after deposit of the written demand with the U.S. Postal
Service.
3. Security for Reimbursement. The obligation of the Homeowner to make the
reimbursement payments to the City required under Section 2 shall be secured by the Affordable
Housing Deed of Trust which shall encumber the Homeowner's fee title to the Unit. Such deed
of trust shall be executed by the Homeowner and shall be recorded in the official records of
Orange County, California, at the time Homeowner acquires title to the Unit. The Homeowner
consents to recordation of such deed of trust in the official records of Orange County, California.
The Affordable Housing Deed of Trust shall secure all amounts due from the Homeowner and/or
his, her or their successors and assigns as provided in this Reimbursement Agreement.
4. Notice of Default and Delinquency. The Homeowner agrees to deliver to the
City a copy of any notice of Default or delinquency in repayment of the Loan which Homeowner
receives from or on behalf of the Lender. Such notices shall be delivered to the City within five
(5) days of Homeowner's receipt of such notice from the Lender.
5.
Waivers.
(a) The Homeowner expressly agrees that any payment due hereunder may be
extended from time to time at the City's sole and absolute discretion and that the City may
accept security in consideration for any such extension or release any security for this
Reimbursement Agreement at its sole discretion all without in any way affecting the liability of
the Homeowner.
(b) No extension of time for payment of the amounts due pursuant to this
Reimbursement Agreement made by agreement by the City with any person now or hereafter
liable for the payment of this Reimbursement Agreement shall operate to release, discharge,
EXHIBIT E
modify, change or affect the original liability of the Homeowner under this Reimbursement
Agreement, either in whole or in part.
(c) The obligations of the Homeowner under this Reimbursement Agreement
shaH be absolute and the Homeowner waives any and aH rights to offset, deduct or withhold any
payments or charges due under this Rei~bursement Agreement for any reasons whatsoever.
(d) The Homeowner waives presentment, demand, notice of protest and
nonpayment, notice of Default or delinquency, notice of acceleration, notice of costs, expenses
or leases or interest thereon, notice of dishonor, diligence in coHection or in proceeding against
any of the rights of interests in or to properties securing of this Reimbursement Agreement, and
the benefit of any exemption under any homestead exemption laws, if applicable.
(e) No previous waiver and no failure or delay by the City in acting with
respect to the terms of this Reimbursement Agreement shaH constitute a waiver of any breach,
Default, or failure or condition under this Reimbursement Agreement. A waiver of any term of
this Reimbursement Agreement must be made in writing and shaH be limited to the express
written terms of such waiver.
6. Attorneys' Fees and Costs. The Homeowner agrees that if any amounts due
under this Reimbursement Agreement are not paid when due, the Homeowner shaH pay, in
addition, aH costs and expenses of coHection and reasonable attorneys' fees paid or incurred in
connection with the coHection or enforcement of this Reimbursement Agreement, whether or not
suit is filed. The Homeowner further agrees that the provisions of Section 23 of the Covenant
regarding attorneys' fees and costs shaH be equally applicable to this Reimbursement
Agreement.
7.
MisceHaneous.
a. Term of Agreement. This Reimbursement Agreement shall take effect
upon the date set forth in the first paragraph hereof and shaH terminate concurrently with the
termination ofthe Covenant.
b. Successor is Deemed Included in All References to Predecessor.
Whenever in this Reimbursement Agreement either the Homeowner or the City is named or
referred to, such reference shall be deemed to include the successors or assigns thereof, and all
the covenants and agreements in this Reimbursement Agreement contained by or on behalf of the
Homeowner or the City shall bind and inure to the benefit of the respective successors and
assigns thereof whether so expressed or not.
c. Amendment. No modification, rescission, waiver, release or amendment
of any provision of this Covenant shall be made except by a written agreement executed by
Homeowner and the City.
d. Notices. All notices, certificates or other communications hereunder shall
be sufficiently given and shall be deemed to have been received in the manner and to the
addresses set forth in Section 22 of the Covenant.
e. Further Assurances and Corrective Instruments. Homeowner shall
execute any further documents consistent with the terms of this Covenant, including documents
EXHIBIT E
in recordable form, as the City shall from time to time find necessary or appropriate to effectuate
its purposes in entering into this Covenant.
f. Execution in Counterparts. This Reimbursement Agreement may be
executed in two or more separate counterparts, each of which, when so executed, shall be
deemed to be an original. Such counterparts shall, together, constitute and shall be one and the
same instrument. This Agreement shall not be effective until the execution and delivery by the
parties of at least one set of counterparts. The parties hereunder authorize each other to detach
and combine original signature pages and consolidate them into a single identical original. Any
one of such completely executed counterparts shall be sufficient proof of this Agreement.
g. Applicable Law. This Reimbursement Agreement shall be governed by
and construed in accordance with the laws of the State of California.
b. Captions. The captions or headings in this Reimbursement Agreement
are for convenience only and in no way define, limit or describe the scope or intent of any
provisions of this Reimbursement Agreement.
i. Definition of Terms. Terms not otherwise defined in this Reimbursement
Agreement are defined in the Covenant.
IN WITNESS WHEREOF, the Homeowner and the City have duly executed this
Reimbursement Agreement, all as of the date first above written.
CITY OF TUSTIN:
By:
Name:
Title:
HOMEOWNER:
Name:
Name:
EXHIBIT E
EXHIBIT "I" TO EXHIBIT E
Name of Homeowner:
Address of Unit:
Name of Lender:
Amount of Loan:
EXHIBIT "I" TO EXHIBIT E
EXHIBIT "F"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: Assistant City Manager
This document is exempt from the payment of a
recording fee pursuant to Government Code Section
27383.
AFFORDABLE HOUSING OPTION AGREEMENT
THIS AFFORDABLE HOUSING OPTION AGREEMENT ("Option Agreement") is
entered into as of , 200_, by and between the CITY OF
TUSTIN, a municipal corporation (the "City"), and
(the "Homeowner").
RECITALS
A.
Homeowner has purchased a condominium located at
, Tustin, California, as
such real property is more particularly described in Exhibit "A" attached hereto and incorporated
herein (the "Unit").
B. As the City has required Developer to sell the Unit to a Moderate Income Household, the
City agreed to accept a promissory note executed by Homeowner (the "Affordable Housing
Note") in connection with Homeowner's purchase of the Unit. The Affordable Housing Note is,
or shall be, secured by the Affordable Housing Deed of Trust.
C. Homeowner and the City have entered into an Affordable Housing Covenant dated
concurrently herewith (the "Covenant"). Under the terms of the Covenant, the parties have
agreed that for a forty-five year period the Unit shall be sold only to Moderate Income
Households at an Affordable Housing Cost and that the Unit may be sold or otherwise
transferred only as provided in Section 4 of the Covenant.
D. Pursuant to Section 7 of the Covenant, the Homeowner has agreed to grant to the City an
option to purchase the Unit in the event Homeowner is in Default of any of his, her or their
obligations set forth in the Covenant.
E. Homeowner desires to grant to City an option to purchase the Unit on the terms and
conditions set forth hereinbelow. For purposes of this Option Agreement, "Unit" shall also be
deemed to include any and all improvements located on the real property.
NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants and
conditions contained herein, the parties hereto agree as folIows:
EXHIBIT F
1.
Grant of Option.
(a) Homeowner grants to City an option (the "Option") to purchase the Unit
on the terms and conditions set forth in this Option Agreement. The Option may be exercised
only (i) upon the occurrence of an event of Default under the Covenant, or (ii) the due date of the
Affordable Housing Note is accelerated because of a transfer by the Homeowner of title to the
Unit.
(b) The purchase price payable by the City to the Homeowner for the Unit
shall be the Affordable Housing Cost of the Unit for Moderate Income Households (as defined in
the Covenant), as of the date of the close of escrow for the City's acquisition of the Unit (the
"Option Price"). Homeowner agrees that this Option may be specifically enforced.
(c) For purposes of this Option Agreement, the Affordable Housing Cost of
the Unit shall be reasonably determined the City by assuming (a) a 30 year, fully amortized, level
payment mortgage loan for 97% of the price of the Unit, at currently prevailing mortgage rates,
(b) the prevailing cost of mortgage insurance payments for the loan described in
subparagraph (a), but only if mortgage insurance would customarily be charged for such loan,
(c) property taxes and assessments based on the reassessment of the Unit as of the closing date of
the City's acquisition of the Unit, assuming the Unit is not exempt from such taxes and
assessments, (d) current Homeowner's association fees, (e) the prevailing cost for fire and
casualty insurance, however, if the Homeowner's association carries fire and casualty insurance
with respect to the exterior of the Unit, then no additional cost shall be assigned to fire and
casualty insurance, and (f) use of the utilities allowance established by the Orange County
Housing Authority for the size of the Unit, or if no such allowance exists at that time, then a
reasonable utilities allowance as determined by the City.
(d) The Option created hereby shall be irrevocable by Homeowner and shall be binding upon
the successors and assigns of Homeowner. The City shall have the right of specific performance
to enforce the terms of this Option Agreement.
2. Term and Consideration for Option. The term of the Option ("Option Term")
shall commence on the date of this Option Agreement, and shall expire upon the expiration or
termination of the Covenant.
3. Exercise of Option. The Option may be exercised by City's delivery to
Homeowner of written notice of such exercise (the "Exercise Notice"). In the event that the City
exercises the Option, but, prior to the sale of the Unit to the City, the Homeowner cures the event
that gave rise to the right of the City to exercise the Option, the City's exercise of the Option
shall be deemed revoked. The revocation of the exercise of the Option shall not terminate this
Option Agreement or preclude the City from subsequently exercising the Option upon a later
occurrence of an event giving rise to the right of the City to exercise the Option.
4. Escrow and Completion of Sale. Within five (5) days after City has exercised
the Option, or as soon thereafter as reasonably practicable, an escrow shall be opened with an
escrow company mutually acceptable to City and Homeowner for the conveyance ofthe Unit to
the City. The Option Price shall be paid by the City in part by cancellation of the Affordable
Housing Note and Affordable Housing Trust Deed. The City shall deposit in escrow not later
than one (I) business day prior to the anticipated close of escrow date the Affordable Housing
EXHIBIT F
Note, to be cancened by the escrow holder upon the closing of the Option transaction and
consummation of the sale ("Close of Escrow"), and cash in an amount equal to the difference
between the Option Price and the amount then due on the Affordable Housing Note. The City's
obligation to close escrow shan be subject to the City's approval of a then-current preliminary
title report and, at City's option, environmental and other site testing. Any exceptions shown on
such preliminary title report created on or after the Homeowner's acquisition of the Unit shall be
removed by Homeowner at its sole expense prior to the close of escrow pursuant to this Section
~ unless such exceptiones) is (are) accepted by City in its reasonable discretion; provided,
however, that City shan accept the fonowing exceptions to title: (i) current taxes not yet
delinquent, (ii) matters affecting title existing on the date of Homeowner's acquisition of the
Unit, (iii) liens and encumbrances in favor of the City, and (iv) matters shown as printed
exceptions in the standard form CL T A Homeowner's policy of title insurance. The parties shall
each be responsible for one-half of the escrow fees, documentary transfer taxes, recording fees
and any other costs and expenses of the escrow, and the Homeowner shan be responsible for the
cost of a CL T A Homeowner's policy of title insurance. The City shan have thirty (30) days after
exercise of the Option to enter upon the Unit to conduct any tests, inspections, investigations, or
studies of the condition of the Unit. Homeowner shan permit the City access to the Unit for such
purposes. The City shan indemnify, defend, and hold harmless Homeowner and its officers,
directors, shareholders, partners, employees, agents, and representatives from and against all
claims, liabilities, or damages, and including expert witness fees and reasonable attorney's fees
and costs, caused by City's activities with respect to or arising out of such testing, inspection, or
investigatory activity on the Unit. Close of Escrow shan take place promptly after acceptance by
City of the condition oftitle and the physical and environmental condition ofthe Unit. Until the
Close of Escrow, the terms of the Covenant and the documents executed and recorded pursuant
thereto shan remain in fun force and effect.
5. Failure to Exercise Option. If the Option is not exercised in the manner
provided in Section 3 above before the expiration of the Option Term, the Option shall terminate.
Upon receipt of the written request of Homeowner, City shan cause a quitclaim deed terminating
or releasing any and all rights City may have to acquire the Unit (the "Quitclaim Deed") to be
recorded in the Official Records of Orange County, California.
6. Assignment and Nomination. The City may, at its option, assign its rights
hereunder without obtaining the consent of the Homeowner, and the City may nominate another
person or entity to acquire the Unit, and the identity of such nominee shall not be subject to the
approval of the Homeowner. In no event shan Homeowner, without the prior express written
consent of the City, which consent shall be given by the City only in the event that the City
determines the Transfer funy complies with Section 4 of the Covenant, assign or transfer its
obligations of this Option to any person other than a Permitted Transferee as provided in the
Covenant.
7. Title. Fonowing the date hereof, except as permitted by the Covenant,
Homeowner agrees not to cause, and shan use commerciany reasonable efforts not to permit, any
lien, easement, encumbrance or other exception to title to be recorded against the Unit without
City's prior written approval, such approval not to be unreasonably withheld.
EXHIBIT F
8. Representations and Warranties of Homeowner. Homeowner hereby
represents, warrants and covenants to City as follows, which representations and warranties shaH
survive the exercise of the Option and the Close of Escrow:
(a) that this Option Agreement and the other documents to be executed by
Homeowner hereunder, upon execution and delivery thereof by Homeowner, will have been duly
entered into by Homeowner, and will constitute legal, valid and binding obligations of
Homeowner;
(b) neither this Option Agreement, nor anything provided to be done under
this Option Agreement, violates or shaH violate any contract, document, understanding,
agreement or instrument to which Homeowner is a party or by which it is bound; and
(c) Homeowner shaH pay, prior to delinquency, any and aH real property taxes
and assessments which affect the Unit.
Homeowner agrees to indemnify, protect, defend, and hold City and the Unit harmless from and
against any damage, claim, liability, or expense of any kind whatsoever (including, without
limitation, reasonable attorneys' fees and fees of expert witnesses) arising from or in connection
with any breach of the foregoing representations, warranties and covenants. Such
representations and warranties of Homeowner shaH be true and correct on and as of the date of
this Option Agreement and on and as of the date of the Close of Escrow.
9. Representations and Warranties of City. City hereby represents and warrants
and covenants to Homeowner, as foHows, which representations and warranties shaH survive the
Close of Escrow:
(a) that this Option Agreement and the other documents to be executed by
City hereunder, upon execution and delivery thereof by City, will have been duly entered into by
City, and will constitute legal, valid and binding obligations of City, and
(b) neither this Option Agreement, nor anything provided to be done under
this Option Agreement, violates or shaH violate any contract, document, understanding,
agreement or instrument to which City is a party or by which it is bound.
City agrees to indemnify, protect, defend, and hold Homeowner and the Unit harmless from and
against any damage, claim, liability, or expense of any kind whatsoever (including, without
limitation, reasonable attorneys' fees and fees of expert witnesses) arising from or in connection
with any breach of the foregoing representations, warranties and covenants. Such
representations and warranties of City, and any other representations and warranties of City
contained elsewhere in this Option Agreement shaH be true and correct on and as of the date of
this Option Agreement and on and as of the date of the Close of Escrow.
10. General Provisions.
10.1 Paragraph Headings. The paragraph headings used in this Option
Agreement are for purposes of convenience only. They shall not be construed to limit or extend
the meaning ofany part of this Option Agreement.
10.2 Notices. All notices, demands, consents, requests and other
communications required or permitted to be given under this Agreement shaH be in writing and
EXHIBIT F
shall be deemed conclusively to have been duly given (a) when hand delivered to the other party;
(b) three (3) business days after such notice has been sent by United States mail via certified
mail, return receipt requested, postage prepaid, and addressed to the other party as set forth
below; or (c) the next business day after such notice has been deposited with a national overnight
delivery service reasonably approved by the parties (Federal Express and Airborne Express are
deemed approved by the parties), postage prepaid, addressed to the party to whom notice is being
sent as set forth below with next-business-day delivery guaranteed, provided that the sending
party receives a confirmation of delivery from the delivery service provider. Unless otherwise
provided in writing, all notices hereunder shall be addressed as follows:
To Homeowner:
To City:
City of Tustin
Tustin City Hall
300 Centennial Way
Tustin, California 92780
Attention: City Manager
and Attention: Assistant City Manager
with a copy to:
City Attorney
City of Tustin
Woodruff Spradlin & Smart
701 S. Parker Street, Suite 8000
Orange, California 92868-4760
Attention: Lois E. Jeffrey, Esq.
10.3 Binding Effect. Subject to the provisions of Section 6, the terms,
covenants and conditions of this Option Agreement shaH be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and transferees.
10.4 Entire Agreement. This Option Agreement sets forth the entire
agreement between the parties hereto respecting the Option, and supersedes all prior negotiations
and agreements, written or oral, concerning or relating to the subject matter of this Option
Agreement.
10.5 California Law. This Option Agreement shall be governed by the laws of
the State of California and any question arising hereunder shall be construed or determined
according to such laws.
10.6 Time of the Essence. Time is of the essence with respect to each and
every provision of this Option Agreement.
EXHIBIT F
10.7 Counterparts. This Option Agreement may be executed in two or more
separate counterparts, each of which, when so executed, shall be deemed to be an original. Such
counterparts shall, together, constitute and shall be one and the same instrument. This Option
Agreement shall not be effective until the execution and delivery by the parties of at least one set
of counterparts. The parties hereunder authorize each other to detach and combine original
signature pages and consolidate them into a single identical original. Anyone of such
completely executed counterparts shall be sufficient proof of this Option Agreement.
10.8 Attorneys' Fees. If any party to this Agreement institutes any action, suit,
counterclaim, appeal, arbitration or mediation for any relief against another party, declaratory or
otherwise (collectively an "Action"), to enforce the terms hereof or to declare rights hereunder
or with respect to any inaccuracies or material omissions in connection with any of the
covenants, representations or warranties on the part of the other party to this Agreement, then the
prevailing party in such Action, whether by arbitration or final judgment, shall be entitled to
have and recover of and ITom the other party all costs and expenses of the Action, including,
without limitation, reasonable attorneys' fees and costs (at the prevailing party's attorneys' then-
prevailing rates as increased from time to time by the giving of advanced written notice by such
counsel to such party) incurred in bringing and prosecuting such Action and/or enforcing any
judgment, order, ruling or award (collectively, a "Decision") granted therein, all of which shall
be deemed to have accrued on the commencement of such Action and shall be paid whether or
not such Action is prosecuted to a Decision. Any Decision entered in such Action shall contain a
specific provision providing for the recovery of attorneys' fees and costs incurred in enforcing
such Decision. A court or arbitrator shall fix the amount of reasonable attorneys' fees and costs
upon the request of either party. Any judgment or order entered in any final judgment shall
contain a specific provision providing for the recovery of all costs and expenses of suit,
including, without limitation, reasonable attorneys' fees and expert fees and costs (collectively
"Costs") incurred in enforcing, perfecting and executing such judgment. For the purposes of this
paragraph, Costs shall include, without limitation, in addition to Costs incurred in prosecution or
defense of the underlying action, reasonable attorneys' fees, costs, expenses and expert fees and
costs incurred in the following: (a) post judgment motions and collection actions; (b) contempt
proceedings; (c) garnishment, levy, debtor and third party examinations; (d) discovery;
(e) bankruptcy litigation; and (t) appeals of any order or judgment. "Prevailing party" within
the meaning of this section includes, without limitation, a party who agrees to dismiss an Action
in consideration for the other party's payment of the amounts allegedly due or performance of
the covenants allegedly breached, or obtains substantially the relief sought by such party.
10.9 Computation of Time. All periods of time referred to in this Option
Agreement shall include all Saturdays, Sundays and state or national holidays, unless the period
of time is specified as business days (which shall not include Saturdays, Sundays and state or
national holidays), provided that if the date or last date to perform any act or give any notice with
respect to this Option Agreement shall fall on a Saturday, Sunday or state or national holiday,
such act or notice may be timely performed or given on the next succeeding day which is not a
Saturday, Sunday or state or national holiday. Time is of the essence with respect to all
provisions of this Agreement in which a definite time for performance is specified; provided,
however, that the foregoing shall not be construed to limit or deprive a party of the benefits of
any grace or use period provided for in this Agreement.
EXHIBIT F
10.10 Definition of Terms. Terms not otherwise defined in this Option
Agreement are defined in the Covenant.
10.11 Further Assurances. Each of the parties hereto shall execute and deliver
at their own cost and expense, any and all additional papers, documents, or instruments, and shall
do any and all acts and things reasonably necessary or appropriate in connection with the
performance of their respective obligations hereunder in order to carry out the intent and
purposes of this Agreement.
IN WITNESS WHEREOF, this Option Agreement is executed by the parties hereto as of the
date first above written.
HOMEOWNER:
By:
Printed Name:
By:
Printed Name:
CITY:
CITY OF TUSTIN, a municipal corporation
By:
Printed Name:
EXHIBIT F
EXHIBIT "A" TO EXHIBIT F
LEGAL DESCRIPTION
PARCEL I:
IN THE CITY OF TUSTIN AND CITY OF IRVINE, COUNTY OF ORANGE, STATE OF
CALIFORNIA, BEING THAT PORTION OF BLOCKS 61 AND 62 OF IRVINE'S
SUBDIVISION AS SHOWN ON THE MAP FILED IN BOOK I, PAGE 88 OF
MISCELLANEOUS RECORD MAPS, AND AS SHOWN ON A MAP FILED IN BOOK 165,
PAGES 31 THROUGH 39, INCLUSIVE, OF RECORDS OF SURVEY, BOTH OF THE
RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHEASTERLY CORNER OF PARCEL 1-B-3 AS
DESCRIBED IN A DOCUMENT RECORDED MAY 14, 2002 AS INSTRUMENT NO.
20020404592 OF OFFICIAL RECORDS OF SAID COUNTY AND SAID CORNER ALSO
BEING THE INTERSECTION OF THE NORTHWESTERLY LINE OF HARVARD
AVENUE (HAVING A NORTHWESTERLY HALF-WIDTH OF 36 FEET) AND THE
SOUTHWESTERLY LINE OF EDINGER AVENUE (HAVING A SOUTHWESTERLY
HALF-WIDTH OF 60 FEET) AS SHOWN ON SAID RECORD OF SURVEY, SAID
SOUTHWESTERLY LINE OF EDINGER A VENUE BEING A CURVE CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 1740.00 FEET, A RADIAL LINE TO SAID
INTERSECTION BEARS NORTH 52 44'05" EAST;
THENCE ALONG THE NORTHEASTERLY AND NORTHWESTERLY LINE OF SAID
PARCEL THE FOLLOWING FOUR (4) COURSES:
I)
NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE AND SAID CURVE
33.68 FEET THROUGH A CENTRAL ANGLE OF I 06' 33" TO A LINE THAT IS
PARALLEL WITH AND 69 FEET NORTHWESTERLY FROM THE CENTERLINE
OF SAID HARVARD AVENUE AS SHOWN ON SAID RECORD OF SURVEY;
2)
THENCE ALONG SAID PARALLEL LINE SOUTH 4037' 53" WEST 1228.30 FEET
TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 40 37' 53" WEST
38.00 FEET TO AN ANGLE POINT THEREIN;
3)
4)
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 40 37' 37" WEST
1619.79 FEET TO A POINT ON THE NORTHWESTERLY LINE OF THE LAND
DESCRIBED IN THE DOCUMENT RECORDED IN BOOK 10657, PAGE 412 OF
OFFICIAL RECORDS OF SAID COUNTY AND AS SHOWN ON SAID RECORD OF
SURVEY, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 1894.00 FEET, A RADIAL
LINE TO SAID BEGINNING BEARS SOUTH 27 21' 58" EAST;
200152.7
Attachment 6
June 13,2005
THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE AND SAID
CURVE 140.26 FEET THROUGH A CENTRAL ANGLE OF 4 14' 35"; THENCE
CONTINUING ALONG SAID NORTHWESTERLY LINE SOUTH 66 52' 37" WEST 1087.44
FEET TO A POINT ON A CURVE THAT IS CONCENTRIC WITH AND 118.75 FEET
NORTHEASTERLY FROM THE CENTERLINE OF WARNER AVENUE AS SHOWN ON
SAID RECORD OF SURVEY, SAID CURVE BEING CONCAVE SOUTHWESTERLY
HAVING A RADIUS OF 1718.75 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH
6845' 45" EAST;
THENCE CONCENTRIC AND PARALLEL WITH SAID CENTERLINE OF WARNER
AVENUE THE FOLLOWING TWO (2) COURSES:
I)
NORTHERLY AND NORTHWESTERLY ALONG SAID CURVE 843.12 FEET
THROUGH A CENTRAL ANGLE OF 28 06' 22";
2)
THENCE NORTH 49 20' 37" WEST 468.05 FEET TO THE BEGINNING OF A
CURVE CONCAVE EASTERLY HAVING A RADIUS OF 35.00 FEET;
THENCE NORTHWESTERLY, NORTHERLY AND NORTHEASTERLY ALONG
SAID CURVE 62.22 FEET THROUGH A CENTRAL ANGLE OF 101 51' 19" TO
THE SOUTHEASTERLY LINE OF PETERS CANYON CHANNEL (HA VIN A
SOUTHEASTERLY HALF-WIDTH OF 90 FEET) AS DESCRIVED IN THE
DOCUMENT RECORDED IN BOOK 6681, PAGE 721 OF OFFICIAL RECORDS OF
SAID COUNTY AND AS SHOWN ON SAID RECORD OF SURVEY; THENCE
ALONG SAID SOUTHEASTERLY LINE OF SAID PETERS CANYON CHANNEL
NORTH 52 30' 42" EAST 417.91 FEET TO THE CITY OF IRVINE AS SHOWN ON
SAID RECORD OF SURVEY; THENCE LEAVING SAID SOUTHEASTERLY LINE
AND ALONG SAID CITY BOUNDARY LINE SOUTH 49 21' 01" EAST 45.99 FEET
TO A LINE THAT IS PARALLEL WITH AND 135.00 FEET SOUTHEASTERLY
FROM THE CENTERLINE OF SAID PETERS CANYON CHANNEL; THENCE
ALONG SAID PARALLEL LINE NORTH 52 32' 09" EAST 289.49 FEET; THENCE
LEAVING SAID PARALLEL LINE NORTH 3727' 51" WEST 5.00 FEET TO A LINE
THAT IS PARALLEL WITH AND 130.00 FEET SOUTHEASTERLY FROM THE
CENTERLINE OF SAID PETERS CANYON CHANNEL;
I)
2)
THENCE PARALLEL AND CONCENTRIC WITH SAID CENTERLINE THE
FOLLOWING THREE (3) COURSES:
NORTH 52 32' 09" EAST 1277.26 FEET TO THE BEGINNING OF A CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 2130.00 FEET;
NORTHEASTERLY ALONG SAID CURVE 238.53 FEET THROUGH A CENTRAL
ANGLE OF 6 24' 58";
NORTH 4607' II" EAST 210.47 FEET TO A POINT ON SAID SOUTHEASTERLY
LINE OF PETERS CANYON CHANNEL;
3)
200152.7
Attachment 6
June 13,2005
THENCE ALONG SAID SOUTHEASTERLY LINE THE FOLLOWING SIX (6) COURSES:
I)
2)
3)
4)
5)
6)
SOUTH 49 19' 03" EAST 20.10 FEET;
NORTH 4607' II" EAST 74.99 FEET;
NORTH 49 19' 04" WEST 60.28 FEET;
NORTH 46 07' II" EAST 32.14 FEET;
SOUTH 4919' 04" EAST 60.28 FEET;
NORTH 46 07' 11" EAST 22.10 FEET;
THENCE LEAVING SAID SOUTHEASTERLY LINE SOUTH 49 19' 04" EAST 1311.03
FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM PARCEL I-B-2 AS DESCRIBED IN SAID INSTRUMENT NO.
20020404592, OFFICIAL RECORDS.
PARCEL 2:
NON-EXCLUSIVE EASEMENTS FOR INGRESS AND EGRESS OVER THAT CERTAIN
LAND RESERVED BY THE UNITED STATES OF AMERICA, FOR SAID PURPOSES, IN
THE DEED RECORDED MAY 14, 2002 AS INSTRUMENT NO. 2002-0404592, IN THE
OFFICIAL RECORDS OF ORANGE COUNTY. CALIFORNIA.
EXHIBIT "A" TO EXHIBIT F
STATE OF CALIFORNIA
COUNTY OF
)
) ss.
)
On
,before me,
, Notary
Public,
(Priol Name ofNolary Public)
personally appeared
0
personally known to me
-or-
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 hislher/their signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
0
WITNESS my hand and official seal.
S'gnature Of Notary
Signer(s) Other Than Named Above
EXHIBIT "A" TO EXHIBIT F
200152.7
ATTACHMENT NO.6
AFFORDABLE HOUSING COVENANT (VERY LOW INCOME)
Attachment 6
June 13,2005
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: Assistant City Manager
Exempt From Recording Fee Pursuant to Government Code Section
27383
AFFORDABLE HOUSING COVENANT
(Very Low Income)
THIS AFFORDABLE HOUSING COVENANT (this ""Covenant") is made as of
,200_, by
(the
"Homeowner") in favor of the CITY OF TUSTIN, a municipal corporation (the "City").
RECITALS
Homeowner has purchased a condominium located at
, Tustin, California, as such real property is more particularly described in
Exhibit "A" attached hereto and incorporated herein (the "Unit"). The Unit is part of that certain
housing development known as "COLUMBUS GROVE" (the "Project").
8. Pursuant to the Housing Agreement between the City and Moffett Meadows
Partners LLC, a Delaware limited liability company (the "Developer"), a memorandum of which
has been recorded in the Official Record of the County of Orange, the Developer is required to
sell certain of the homes in the Project to "Very Low Income Households", at an "Affordable
Housing Cost for Very Low Income Households".
C. The Unit has been designated by the Developer as a Unit that is to be sold to a
Very Low Income Household.
D. Homeowner has represented to the Developer and the City that Homeowner and
Homeowner's household intend to reside in the Unit as the Homeowner's principal residence at
all times during the Homeowner's ownership of the Unit, that they will not rent the Unit to
others, and that they are a Very Low Income Household.
E. In order to enable City to meet its continuing affordable housing obligations under
State Law, and because City has facilitated the provision of Affordable Housing Units through
its adoption of the Specific Plan and housing incentives in the Density Bonus Ordinance, the City
has agreed to accept a promissory note executed by Homeowner (the "Affordable Housing
Note") in connection with Homeowner's purchase of the Unit. The Affordable Housing Note is,
or shall be, secured by the Affordable Housing Deed of Trust.
F. The City owns that certain parcel of land adjacent to the Project that is more
particularly described on Exhibit "B" attached hereto.
A.
200152.7
Attachment 6
June 13,2005
G. This Covenant is intended to benefit the parcel ofland described on Exhibit "B",
and the obligations and rights contained herein are intended to run with the land and to be
subordinate to a "First Lien" (as defined below).
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
1.
DEFINITIONS.
"Afford ability Period" means that period of time commencing upon the Date ofthis
Covenant and terminating on the forty-fifth (45th) anniversary of such date.
"Affordable Housing Cost for Very Low Income Households" means the cost per Unit
for Very Low Income Households as more particularly defined in Health and Safety Code
Section 50052.5(b )(2) and as generally described herein as a price per Unit which results in
Monthly Housing Costs for the purchaser which shall not exceed one-twelfth ofthirty percent
(30%) times fifty percent (50%) of the annual Orange County Median Income, adjusted for
Household size appropriate for the Unit.
"Affordable Housing Note" means that promissory note executed by Homeowner as
part of Homeowner's purchase ofthe Unit from the Developer. The principal amount of the
Affordable Housing Note is an amount not in excess of the difference between the appraised fair
market value of the Unit as if it was a Market Rate Unit, and the sales price required to sell the
Unit at an Affordable Housing Cost for Very Low Income Households, identified as of the date
of purchase.
"Affordable Housing Option Agreement" means the agreement attached hereto as
Exhibit "F" that provides an option to purchase in favor of the City as provided in Section 7,
which option shall be exercisable in the event that the Owner of a Unit is in breach of the
owner's obligations in this Covenant or in the event the due date of the Affordable Housing Note
is accelerated as the result of a Transfer by the Owner.
"Affordable Housing Deed of Trust" means that certain deed of trust executed by
Homeowner which encumbers the Unit and secures the obligations of Homeowner and his or her
successors and assigns as provided in (a) this Covenant, (b) the Reimbursement Agreement
attached hereto as Exhibit "E", and (c) the Affordable Housing Note.
"City" means the City of Tustin and the City's successors and assigns.
"County" means the County of Orange, California.
"Covenant" means this Affordable Housing Covenant.
"Date of this Covenant" means the date in the first paragraph of this Covenant.
"Default" means the failure of a party to perform any action or covenant required by this
Covenant within the time periods provided herein following notice and opportunity to cure. A
deed in lieu of foreclosure of the Affordable Housing Deed of Trust shall not constitute a
Default under this Covenant.
200152.7
Attachment 6
June 13,2005
"Developer" means Moffett Meadows Partners LLC, a Delaware limited liability
company, described in Recital B, or its City-approved assignee as described in Section 6 of the
Housing Agreement.
"First Lien" means the lien of a purchase money Lender which secures the obligations
of the Owner to repay amounts owed to the Lender.
"Homeowner" means the person or persons set forth in the first paragraph of this
Covenant, and his, her or their successors and assigns.
"Legal Description" means the legal description of the Unit which is attached hereto as
Exhibit "A" and incorporated herein.
"Lender" means an institution making a purchase money loan to the Owner for the
purchase of the Unit.
"Monthly Housing Cost" means, for a Very Low Income Household purchasing the
Unit, all of the following associated with the Unit, estimated or known as ofthe date of the
proposed sale of the Unit: (i) principal and interest payments on a fixed interest rate mortgage
loan, and any loan insurance fees associated therewith; (ii) property taxes and assessments; (iii)
fire and casualty insurance covering replacement value of property improvements; (iv) any
homeowner association fees; and (v) a reasonable utility allowance. Monthly housing cost of a
purchaser shall be an average of estimated costs for the next twelve (12) month period.
"Notice ofIntent to Transfer" means the Notice ofIntent to Transfer attached hereto as
Exhibit "c" and incorporated herein by reference.
"Owner" means Homeowner and any subsequent Transferee of the Unit.
"Permitted Transfer" means any Transfer which is permitted pursuant to Section 4
hereof.
"Permitted Transferee" means a Transferee from the Homeowner or ITom any
Permitted Transferee who acquires ownership of the Unit as set forth in Section 4 hereof.
"Prohibited Transfer" means any Transfer which is not permitted pursuant to Section 4
hereof.
"Project" means that certain housing development known as Columbus Grove in which
the Unit is located.
"Reimbursement Agreement" means the Reimbursement Agreement to be executed by
the Homeowner in favor of the City, in the form attached hereto as Exhibit "E" and incorporated
herein.
"Request for Notice" means the Request for Notice of Default attached hereto as Exhibit
"D" and incorporated herein.
200152.7
Attachment 6
June 13, 2005
"Transfer" shaH mean any sale, assignment, conveyance, lease or transfer, voluntary or
involuntary, of any interest in the Unit. Without limiting the generality of the foregoing,
Transfer shaH include (i) a transfer by devise, inheritance or intestacy; (ii) the creation of a life
estate; (iii) the creation of a joint tenancy interest; (iv) a gift of aH or any portion ofthe Unit; or
(v) any voluntary conveyance of the Unit.
"Transferee" shaH mean any natural person or entity who obtains ownership rights in
the Unit pursuant to a Transfer.
"Unit" means that certain real property located at the street address set forth in Recital A
and legally described in the Legal Description.
"Very Low Income Household" a Household occupied by persons and families whose
gross income does not exceed the qualifying limits for very low income families set forth in
Health and Safety Code Section 50105.
2. COVENANT RE: SALES OF UNIT. Homeowner covenants and agrees that,
during the Affordability Period, each subsequent resale of the Unit by the then-Owner thereof
shall be to a Very Low Income Household, at an Affordable Housing Cost for Very Low Income
Households. Homeowner further covenants and agrees that, during the Affordability Period,
each Owner shall abide by and be bound by all the obligations of Homeowner set forth in this
Covenant. Homeowner agrees that the obligations of Homeowner set forth in this Covenant
shall be secured by the Affordable Housing Deed of Trust recorded concurrently with the
recordation of the Covenant.
HOMEOWNER AND EACH SUCCESSOR, HEIR OR ASSIGN OF HOMEOWNER
UNDERSTAND THAT THE DETERMINATION OF THE AFFORDABLE HOUSING
COST CAN BE MADE ONLY AT THE TIME OF A PROPOSED SALE OR OTHER
TRANSFER, TAKING INTO CONSIDERATION PREVAILING INTEREST RATES,
THE OFFERED TERMS OF SALE, THE ECONOMIC CIRCUMSTANCES OF THE
PROPOSED PURCHASER AND OTHER FACTORS THAT CANNOT BE
ACCURATELY PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED
HEREUNDER MAYBE LESS THAN THE FAIR MARKET VALUE OF THE SAME OR
OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS
COVENANT. HOMEOWNER AND EACH SUCCESSOR, HEIR OR ASSIGN OF
HOMEOWNER FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING
THE TRANSFER PRICE, THE PRIMARY OBJECTIVE OF THE CITY AND THIS
COVENANT IS TO PROVIDE HOUSING TO VERY LOW INCOME HOUSEHOLDS
AT AN AFFORDABLE HOUSING COST.
Homeowner's Initials
200152.7
Attachment 6
June 13,2005
3. HOMEOWNER'S REPRESENTATIONS AND WARRANTIES AS TO
THE SALE OF THE UNIT TO HOMEOWNER. Homeowner represents and warrants to the
Developer and the City that the financial and other information which Homeowner has provided
to the Developer and the City with respect to Homeowner's income and the purchase price ofthe
Unit was true and correct at the time such information was provided, and remains true and
correct as ofthe Date of this Covenant.
4.
PERMITTED TRANSFERS OF THE UNIT.
a. Notice Required for a Transfer. During the Affordability Period, the Unit,
and any interest therein, shall not be Transferred by the Owner except with the express written
consent of the City, which consent shall be given only if the Transfer is in strict compliance with
the provisions of this Section 4. Each Owner understands that appropriate transfers will be
permitted and neither the City nor the Lender may determine that transfers which result from
marriage, divorce, death of a spouse, or which are otherwise required to be permitted under
applicable Federal law provided that the transferee otherwise complies with Section 4(i), (ii),
(iii), (iv), (v), and (vi), constitute a Default under this Covenant or the Affordable Housing Deed
of Trust. During the Affordability Period in the event the then-Owner of the Unit, desires to
Transfer the Unit, prior to the Transfer the Owner shall notify the City by delivering a Notice of
Intent to Transfer to the City. City hereby agrees to permit Transfers of the Unit to proposed
Transferees ("Permitted Transferees") provided the Transfer satisfies all of the following
conditions:
i. Notice to City. The Owner shall send the Notice ofIntent to
Transfer to the City at the address set forth in Section 22 hereof. The Notice of Intent to Transfer
shall identify the proposed Transferee, certify that to the best knowledge of the Owner the
Transferee is a Very Low Income Household, certify that the sales price is no more than an
Affordable Housing Cost for Very Low Income Households, and shall include copies of the sales
contract, the grant deed or other document that is proposed to be used to effectuate the Transfer,
copies of documents verifying that the proposed Transferee is a Very Low Income Household
(including, but not limited to, documents verifying the income of the proposed Transferee) and
all other material documents related to the proposed Transfer.
ii. Qualification of Proposed Transferee. The proposed Transferee
shall provide and certify to the City with such information as the City may request related to the
proposed Transfer in the form provided by the City, including without limitation: the Social
Security Number of the proposed Transferee, copies of the federal income tax returns filed by the
proposed Transferee for the prior two (2) calendar years, copies of the two most current wage
earning statements of the proposed Transferee, a certification as to the income and family size of
the proposed Transferee, the purchase price the Proposed Transferee intends to pay for the Unit,
and a current appraisal reflecting the fair market value of the Unit on the assumption that the
Unit is free from the restrictions provided for in this Covenant. The proposed Transferee shall
also submit to the City an agreement by the Transferee to assume the obligations of an Owner of
the Unit as set forth in this Covenant in such form as the City may request.
iii. Certificates from Parties. The Owner and proposed Transferee
each shall certify in writing, in a form acceptable to the City, that the Transfer shall be closed in
200152.7
Attachment 6
June 13, 2005
accordance with, and only with, the terms of the sales contract and other documents submitted to
and approved by the City and that all consideration delivered by the proposed Transferee to
Owner.has been fully disclosed to the City. The written certificate shall also include a provision
that in the event a Transfer is made in violation of the terms of this Covenant or false or
misleading statements are made in any documents or certificate submitted to the City for its
approval of the Transfer, the City shall have the right to file an action at law or in equity to make
the parties terminate and/or rescind the sales contract and/or declare the sale void
notwithstanding the fact that the Transfer may have closed and become final as between Owner
and its transferee.
iv. Agreement to Assume the Obligations of This Covenant. The
grant deed or other document effectuating the Transfer of the Unit shall include the following:
(a) references to this Covenant and the obligation of the Transferee to be bound by all the
obligations of Homeowner set forth in this Covenant, (b) a reference to the Affordable Housing
Deed of Trust, (c) a reference to the Affordable Housing Option Agreement, (d) a reference to
the due on sale provisions of the Affordable Housing Note, (e) a reference to the Reimbursement
Agreement and (f) a covenant that will require the Transferee, and any successor or assign of the
Transferee, to include in any document Transferring the Unit a reference to this Covenant, the
Affordable Housing Deed of Trust, the Affordable Housing Option Agreement, the
Reimbursement Agreement, the due on sale provisions of the Affordable Housing Note, and the
obligation of the Transferee to be bound by the obligations set forth in this Covenant, the
Affordable Housing Deed of Trust, the Affordable Housing Option Agreement, the
Reimbursement Agreement and the due on sale provisions of the Affordable Housing Note.
v. Agreement to Increase Amount due on the Affordable Housing
Note. The Transferee must agree to increase the amount of the Affordable Housing Note to the
amount by which the fair market value of the Unit at the time of the closing of the Transfer is in
excess of the sum of the Affordable Housing Cost of such Unit as of the date of the closing of the
Transfer. Any interest that has accrued on the Affordable Housing Note as of the date of the
closing of the Transfer shall be deemed to be included in the increased principal amount of the
note, and interest shall begin accruing on the increased principal amount of the note as of the
date ofthe closing of the Transfer at the rate provided in the note. Except for such increase in
the principal amount of the Affordable Housing Note and the reduction to zero of accrued
interest due on the note, the Affordable Housing Note, the Affordable Housing Deed of Trust,
the Affordable Housing Option Agreement and the Reimbursement Agreement shall remain in
full force and effect.
vi. The City's Title Policy. The City must receive a title policy, in an
amount equal to the amount then due on the Affordable Housing Note as increased as provided
in this Section 4, insuring the Affordable Housing Deed of Trust as a monetary lien of second
priority, Le., subordinate in priority among monetary liens only to the monetary lien of any
purchase money deed of trust recorded at the time of sale which deed of trust shall secure an
amount not in excess ofthe then Affordable Housing Cost ofthe Unit.
vii. Spousal Transfers. Notwithstanding the foregoing provisions of
Sections 4(a)(vi) and 4(a)(vii), in the event ofa transfer to a spouse in a dissolution proceeding
the City shall not require a new title policy nor shall the City require reimbursement for its costs.
200152.7
Attachment 6
June 13, 2005
b. Notice of Prohibited Transfer. Within fifteen (15) days after the receipt by
the City of the notices, documents and agreements referred to in Section 4(a), the City shaIl
determine and give notice to the Owner as to whether the proposed Transfer is a Permitted
Transfer or Prohibited Transfer. Transfers that result from marriage, divorce, or death of a
spouse, or that are otherwise required to be permitted under applicable Federal law shall not be
deemed by the City as a Prohibited Transfer so long as the Transferee complies with this Section
4(i), (ii), (iii), (iv), (v) and (vi). In the event that the proposed Transfer is a Prohibited Transfer,
such notice to the Owner shaIl specify why the Transfer is a 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 Covenant. Upon the declaration of a Default, the City may apply to
a court of competent jurisdiction for specific performance of this Covenant, for an injunction
prohibiting a proposed sale or Transfer in violation of this Covenant, for a declaration that the
Prohibited Transfer is void, or for any such other relief as may be appropriate.
c. Delivery of Documents After the Closing. Upon the close of the proposed
Transfer, the transferor and the Transferee, as applicable, shaIl provide the City with a copy of
the final sales contract, settlement statement, escrow instructions, all certificates required by this
Section 4 and any other documents which the City may reasonably request.
d. Refinancings. This Section 4 shaIl not prohibit the encumbering of title
for the sole purpose of securing financing of the purchase price of the Unit; however, any such
financing (i) must be a First Lien, (ii) must not be in excess of the Affordable Housing Cost of
such Unit as of date of the refinancing, (iii) must be in compliance with the Affordable Housing
Deed of Trust, and (iv) shaIl be subordinate to this Covenant.
5.
ENCUMBRANCES.
a. Subordination. The provisions ofthis Covenant and the Affordable
Housing Deed of Trust shaIl be subordinate to any First Lien on the Unit that secures the
payment ofa principal amount that is not in excess, as of the time the First Lien is recorded
against the Unit, of the Affordable Housing Cost of the Unit. Notwithstanding the fact that the
Covenant and Affordable Deed of Trust is subordinate to an appropriate First Lien, said fact shall
not in any manner modify the obligations from time to time existing between the Owner and the
City. The intent of this provision regarding subordination is that in the event ofa foreclosure of
the First Lien or the recordation of a deed in lieu offorecIosure of the First Lien, this Covenant
shall no longer encumber the Unit and shall not be binding upon the lender or lender's successors
or assigns, but shall in all cases remain binding upon the Owner. The City shall execute such
written instruments for the subordination of its rights under this Covenant and the Affordable
Housing Deed of Trust, including the Affordable Housing Option Agreement and the
Reimbursement Agreement, as may reasonably be requested by the Lender.
b. Request for Notice of Default. The City may cause a Request for Notice
to be recorded on the Unit subsequent to the recordation of the First Lien deed oftrust or
mortgage requesting a statutory notice of Default as set forth in California Civil Code Section
2924b. A form of a Request for Notice is attached hereto as Exhibit "D" and incorporated
herein.
200152.7
Attachment 6
June 13,2005
c. Further Encumbrances Prohibited. Homeowner agrees that he or she shall
not record or cause or permit the recordation of any deed of trust, mortgage, lien or other
instrument creating a security interest in or to the Unit (a "Further Encumbrance") other than a
First Lien, the Affordable Housing Deed of Trust and the Affordable Housing Option
Agreement.
6. REIMBURSEMENT AGREEMENT. Homeowner covenants and agrees to
pay timely any and all amounts due and payable on the obligations secured by the First Lien.
Homeowner and the City shall enter into a Reimbursement Agreement, in the form attached
hereto as Exhibit "E" and incorporated herein, which provides that the City may make payments
to cure a Default or delinquency of any obligation secured by the First Lien, on the condition that
the Homeowner agrees to reimburse the City for any payments made to cure such Default or
delinquency. The Homeowner's repayment obligations pursuant to the Reimbursement
Agreement shall be secured by the Affordable Housing Deed of Trust.
7. OPTION TO ACQUIRE UNIT UPON DEFAULT OF OBLIGATIONS
UNDER THIS COVENANT. Homeowner agrees to enter into an Affordable HousingOption
Agreement, in the form attached hereto as Exhibit "F" and incorporated herein, which grants to
City an option to purchase the Unit in the event that the Homeowner is in Default of any of his or
her obligations under this Covenant.
8. USES. Homeowner covenants and agrees to devote, use and maintain the Unit in
accordance with this Covenant. All uses conducted on the Unit, including, without limitation, all
activities undertaken by the Homeowner pursuant to this Covenant, shall conform to all
applicable provisions of the Tustin Municipal Code, and the recorded documents pertaining to
and running with the Unit.
9. NONDISCRIMINATION COVENANTS. Homeowner covenants by and for
himself or herself, and any successors in interest, that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion, sex,
marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Unit, nor shall the Homeowner or any person claiming under or
through him or her establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sub lessees or vendees of the Unit. The foregoing covenants shall run with
the land.
10. MAINTENANCE OF UNIT. Homeowner shall maintain the improvements and
landscaping on the Unit in a manner consistent with community standards which will uphold the
value of the Unit, in accordance with the Tustin Municipal Code. Homeowner also agrees to
comply with all applicable federal, state and local laws.
11. OCCUPANCY STANDARDS. The Unit shall be used as the principal residence
of Homeowner and Homeowner's family and for no other purpose. Homeowner shall not enter
into an agreement for the rental or lease of the Unit, and Homeowner shall not otherwise rent or
lease the Unit. The City may grant a temporary waiver of the above requirements for good
cause, in the City's sole and absolute discretion. Examples of situations which may result in the
200152.7
Attachment 6
June 13,2005
------------ - ---------------
grant of a temporary waiver include: (i) rental by Owner where necessary to accommodate a
mandatory job transfer required by Owner's employer (not including Owner, if Owner is self-
employed); (ii) rental necessitated by a medical or financial emergency, proof of which
emergency has been delivered to the City, and (iii) other situations which constitute a "hardship"
situation consistent with the intentions of this Covenant and the goal of the City to have
affordable Owner occupied homes in the Project. The maximum occupancy of the Unit shall not
exceed three persons if the Unit is a one bedroom home, five persons if the Unit is a two
bedroom home, or seven persons ifthe Unit is a three bedroom home. Homeowner shall,
commencing upon the first anniversary of the date of this Covenant first set forth above and on
each succeeding anniversary thereafter, submit to the City an affidavit of occupancy in the form
provided by the City.
12. EFFECT OF VIOLATION OF THE TERMS AND PROVISIONS OF THIS
COVENANT.
a. In General. The covenants established in this Covenant shall, without
regard to technical classification and designation, be binding for the benefit and in favor of the
City, its successors and assigns, as to those covenants which are for its benefit. The covenants
contained in this Covenant shall remain in effect for the periods of time specified herein. The
covenants against discrimination shall remain in effect in perpetuity. The City is deemed the
beneficiary of the terms and provisions of this Covenant and of the covenants running with the
land, for and in its own rights and for the purposes of protecting the interests of the community
and other parties, public or private, in whose favor and for whose benefit this Covenant and the
covenants running with the land have been provided. This Covenant and the covenants therein
shall run in favor of the City, without regard to whether the City has been, remains or is an
owner of any land or interest therein in the Unit or in the Project Area. The City shall have the
right, if the Covenant or covenants are breached, to exercise all rights and remedies, and to
maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing
of such breaches to which it or any other beneficiaries of this Covenant and covenants may be
entitled.
b. Notice of Default. Failure or delay by Homeowner to perform any term or
provision of this Covenant which is not cured within thirty (30) days after receipt of notice from
the City constitutes a Default under this Covenant; provided, however, if such Default is of the
nature requiring more than thirty (30) days to cure, Homeowner may avoid Default hereunder by
immediately commencing to cure within such thirty (30) day period, and thereafter diligently
pursuing such cure to completion. Failure or delay in giving notice by the City shall not
constitute a waiver of any Default, nor shall it change the time of Default.
c. City's Remedies. Upon the declaration ofa Default, the City may (i)
apply to a court of competent jurisdiction for specific performance, for an injunction prohibiting
any act or omission in violation of this Covenant, or for any such other relief as may be
appropriate, (ii) exercise the City's rights under the Affordable Housing Deed of Trust,
including, without limitation, foreclosure of the Unit, and (iii) pursue such other rights and
remedies permitted under applicable law.
d.
Prohibited Transfers Void. Any attempt by the Homeowner to make a
200152.7
Attachment 6
June 13,2005
-.....--..-.---------.--... d_'..__-..
Prohibited Transfer of title to or any interest in the Unit in violation of this Covenant shall be
voidable by City.
13. INDEMNIFICATION. Homeowner shall defend, indemnify and hold harmless
the City and its officers, officials, agents, employees, representatives, and volunteers from and
against any loss, liability, claim, or judgment relating in any manner to the Homeowner's use of
the Unit or Homeowner's violation of this Covenant. The Homeowner shall remain fully
obligated for the payment oftaxes, liens and assessments related to the Unit. There shall be no
reduction in taxes for Homeowner, nor any transfer of responsibility to the City to make such
payments, by virtue of this Covenant.
14. INSURANCE. Homeowner shall maintain, during the term of this Covenant, an
all-risk property insurance policy insuring the Unit in an amount equal to the full replacement
value of the structures on the Unit. The policy shall contain a statement of obligation on behalf
of the carrier to notify the City of any material change, cancellation or termination of coverage at
least thirty (30) days in advance of the effective date of such material change, cancellation or
termination. Homeowner shall transmit a copy of the certificate of insurance to the City within
thirty (30) days of the effective date of this Covenant, and Homeowner shall annually transmit to
the City a copy of the certificate of insurance, signed by an authorized agent of the insurance
carrier setting forth the general provisions of coverage. The copy of the certificate of insurance
shall be transmitted to the City at the address set forth in Section 22 hereof. Any certificate of
insurance must be in a form, content and with companies approved by the City.
15. TIME OF THE ESSENCE. Time is of the essence with respect to all provisions
of this Covenant in which a definite time for performance is specified; provided, however, that
the foregoing shall not be construed to limit or deprive a party of the benefits of any grace or use
period provided for in this Covenant.
16. NO WAIVER. No waiver of any provision or consent to any action under this
Covenant shall constitute a waiver of any other provision or consent to any other action, whether
or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a
party to provide a waiver in the future except to the extent specifically set forth in writing. Any
waiver given by a party shall be null and void if the party requesting such waiver has not
provided a full and complete disclosure of all material facts relevant to the waiver requested.
17. FURTHER ASSURANCES. Homeowner shall execute any further documents
consistent with the terms of this Covenant, including documents in recordable form, as the City
shall from time to time find necessary or appropriate to effectuate its purposes in entering into
this Covenant.
18. GOVERNING LAW. Homeowner hereby agrees to comply with all ordinances,
rules and regulations ofthe City. Nothing in this Covenant is intended to be, nor shall it be
deemed to be, a waiver of any City ordinance, rule or regulation. This Covenant shall be
governed by the laws of the State of California. Any legal action brought under this Covenant
must be instituted in the Superior Court of the County of Orange, State of California, or in the
Federal District Court in the Central District of California.
200152.7
Attachment 6
June 13,2005
---.--.----- ----_._--- -.. ...-..-- _.
19. AMENDMENT OF COVENANT. No modification, rescission, waiver, release
or amendment of any provision of this Covenant shall be made except by a written agreement
executed by Homeowner and the City.
20. CITY MAY ASSIGN. The City may, at its option, assign its rights hereunder
without obtaining the consent of the Homeowner.
21. HOMEOWNER ASSIGNMENT PROHIBITED. In no event shall
Homeowner assign or transfer any portion of this Covenant without the prior express written
consent of the City, which consent shall be given by the City only in the event that the City
determines the Transfer fully complies with Section 4. This section shall not affect or diminish
the City's right to assign all or any portion of its rights hereunder.
22. NOTICES. All notices, demands, consents, requests and other communications
required or permitted to be given under this Covenant shall be in writing and shall be deemed
conclusively to have been duly given (a) when hand delivered to the other party; (b) three (3)
business days after such notice has been sent by United States mail via certified mail, return
receipt requested, postage prepaid, and addressed to the other party as set forth below; or (c) the
next business day after such notice has been deposited with a national overnight delivery service
reasonably approved by the parties (Federal Express and Airborne Express are deemed approved
by the parties), postage prepaid, addressed to the party to whom notice is being sent as set forth
below with next-business-day delivery guaranteed, provided that the sending party receives a
confirmation of delivery ITom the delivery service provider. Unless otherwise provided in
writing, all notices hereunder shall be addressed as follows:
To Homeowner:
To City:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Manager
and Attention: Assistant City Manager
Either party may change its address for notice by giving written notice thereof to the
other party.
23. ATTORNEYS' FEES AND COSTS. If any party to this Covenant institutes
any action, suit, counterclaim, appeal, arbitration or mediation for any relief against another
party, declaratory or otherwise (collectively an "Action"), to enforce the terms hereof or to
declare rights hereunder or with respect to any inaccuracies or material omissions in connection
with any of the covenants, representations or warranties on the part of the other party to this
Agreement, then the prevailing party in such Action, whether by arbitration or fmal judgment,
200152.7
Attachment 6
June 13,2005
shall be entitled to have and recover of and from the other party all costs and expenses of the
Action, including reasonable attorneys' fees and costs (at the prevailing party's attorneys' then-
prevailing rates as increased from time to time by the giving of advanced written notice by such
counsel to such party) incurred in bringing and prosecuting such Action and/or enforcing any
judgment, order, ruling or award (collectively, a "Decision") granted therein, all of which shall
be deemed to have accrued on the commencement of such Action and shall be paid whether or
not such Action is prosecuted to a Decision. Any Decision entered in such Action shall contain a
specific provision providing for the recovery of attorneys' fees and costs incurred in enforcing
such Decision. A court or arbitrator shall fix the amount ofreasonable attorneys' fees and costs
upon the request of either party. Any judgment or order entered in any final judgment shall
contain a specific provision providing for the recovery of all costs and expenses of suit, including
reasonable attorneys' fees and expert fees and costs (collectively "Costs") incurred in enforcing,
perfecting and executing such judgment. For the purposes of this paragraph, Costs shall include,
without limitation, in addition to Costs incurred in prosecution or defense of the underlying
action, reasonable attorneys' fees, costs, expenses and expert fees and costs incurred in the
following: (a) post-judgment motions and collection actions; (b) contempt proceedings; (c)
garnishment, levy, debtor and third party examinations; (d) discovery; (e) bankruptcy litigation;
and (f) appeals of any order or judgment. "Prevailing party" within the meaning of this section
includes, without limitation, a party who agrees to dismiss an Action in consideration for the
other party's payment of the amounts allegedly due or performance of the covenants allegedly
breached, or obtains substantially the relief sought by such party.
24. ENTIRE AGREEMENT. This Covenant, together with all attachments hereto,
constitutes the entire understanding and agreement of the parties. This Covenant integrates all of
the terms and conditions mentioned herein or incidental thereto, and supersedes all prior
negotiations, discussions and previous agreements between the City and the Homeowner
concerning all or any part of the subject matter of this Covenant.
25. SEVERABILITY. Any provision ofthis Covenant that is deemed to be illegal,
invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be ineffective to
the extent of the invalidity or unenforceability of such provision and shall be deemed stricken
from this Covenant. Any stricken provision shall not affect the legality, enforceability or validity
of the remainder of this Covenant. If any provision or part thereof of this Covenant is stricken in
accordance with the provisions of this Section, then the stricken provision shall be replaced, to
the extent possible, with a legal, enforceable and valid provision that is as similar in tenor and
intent to the stricken provision as is legally possible. Any such invalidity or unenforceability of
any provision in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
26. COUNTERPARTS. This Covenant may be executed in two or more separate
counterparts, each of which, when so executed, shall be deemed to be an original. Such
counterparts shall, together, constitute and shall be one and the same instrument. This Covenant
shall not be effective until the execution and delivery by the parties of at least one set of
counterparts. The parties hereunder authorize each other to detach and combine original
signature pages and consolidate them into a single identical original. Anyone of such
completely executed counterparts shall be sufficient proof of this Covenant.
200152.7
Attachment 6
June 13,2005
IN WITNESS WHEREOF, the parties have executed this Covenant as of the date set forth
above.
BUYER:
By:
Printed Name:
By:
Printed Name:
CITY:
CITY OF TUSTIN, a municipal corporation
By:
200152.7
Attachment 6
June 13,2005
EXHIBIT "A"
LEGAL DESCRIPTION OF UNIT
[To Be Inserted)
EXHIBIT A
EXHIBIT "B"
LEGAL DESCRIPTION OF CITY'S PROPERTY
THE BENEFITED PROPERTY
COLUMBUS GROVE
Reuse Plan Disposal Parcels I-B-2 and I-B-3.
EXHIBIT B
EXHIBIT "C"
NOTICE OF INTENT TO TRANSFER
NOTICE OF INTENT TO TRANSFER MUST BE DELIVERED TO THE CITY OF TUSTIN
PRIOR TO PROCEEDING WITH ANY TRANSFER OF THE PROPERTY.
From:
("Homeowner")
To:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attn: Assistant City Manager
Re:
(street address)
Tustin, California (the "Unit")
Circle appropriate words: Homeowner desires to [sell, convey, transfer by inheritance or devise,
lease, gift, otherwise transfer] the Unit.
Proposed Transferee:
Ages of Proposed Transferee:
Income of Proposed Transferee:
Household Size of Proposed Transferee:
Proposed Transfer Price:
Ifthe City has a program to help locate a Very Low Income purchaser, does the Homeowner
want the City to help look for a Very Low Income purchaser to buy the Unit?
Yes:-
No:
Date:
Signature of Homeowner
(
daytime telephone number of Homeowner
EXHIBIT C
EXHIBIT "D"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: Assistant City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY
Exempt from recording fees pursuant to
Government Code. 27383.
Request for Notice Under Civil Code Section 2924b
In accordance with Section 2924b, Civil Code, request is hereby made that a copy of any
Notice of Default and a copy of any Notice of Sale under the Deed of Trust recorded as
Instrument No. on, 200_, in Book_,
Page -, Official Records of Orange County, California, and describing land therein as
See Exhibit A attached hereto
executed by
which
Beneficiary, and
, as Trustor, in
is named as
, as
Trustee, be mailed to CITY OF TUSTIN, at 300 Centennial Way, Tustin, California 92780,
Attention: Assistant City Manager.
NOTICE: A COpy OF ANY NOTICE OF DEF AUL T AND OF ANY NOTICE OF SALE
WILL BE SENT ONLY TO THE ADDRESS CONTAINED THIS RECORDED REQUEST. IF
YOUR ADDRESS CHANGES, A NEW REQUEST MUST BE RECORDED.
CITY OF TUSTIN
By:
EXHIBIT D
EXHIBIT A TO EXHIBIT D
LEGAL DESCRIPTION
PARCEL I:
IN THE CITY OF TUSTIN AND CITY OF IRVINE, COUNTY OF ORANGE, STATE OF
CALIFORNIA, BEING THAT PORTION OF BLOCKS 61 AND 62 OF IRVINE'S
SUBDIVISION AS SHOWN ON THE MAP FILED IN BOOK I, PAGE 88 OF
MISCELLANEOUS RECORD MAPS, AND AS SHOWN ON A MAP FILED IN BOOK 165,
PAGES 31 THROUGH 39, INCLUSIVE, OF RECORDS OF SURVEY, BOTH OF THE
RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHEASTERLY CORNER OF PARCEL I-B-3 AS
DESCRIBED IN A DOCUMENT RECORDED MAY 14, 2002 AS INSTRUMENT NO.
20020404592 OF OFFICIAL RECORDS OF SAID COUNTY AND SAID CORNER ALSO
BEING THE INTERSECTION OF THE NORTHWESTERLY LINE OF HARVARD
A VENUE (HAVING A NORTHWESTERLY HALF-WIDTH OF 36 FEET) AND THE
SOUTHWESTERLY LINE OF EDINGER AVENUE (HAVING A SOUTHWESTERLY
HALF-WIDTH OF 60 FEET) AS SHOWN ON SAID RECORD OF SURVEY, SAID
SOUTHWESTERLY LINE OF EDINGER A VENUE BEING A CURVE CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 1740.00 FEET, A RADIAL LINE TO SAID
INTERSECTION BEARS NORTH 52 44'05" EAST;
THENCE ALONG THE NORTHEASTERLY AND NORTHWESTERLY LINE OF SAID
PARCEL THE FOLLOWING FOUR (4) COURSES:
I)
NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE AND SAID CURVE
33.68 FEET THROUGH A CENTRAL ANGLE OF I 06' 33" TO A LINE THAT IS
PARALLEL WITH AND 69 FEET NORTHWESTERLY FROM THE CENTERLINE
OF SAID HARVARD AVENUE AS SHOWN ON SAID RECORD OF SURVEY;
2)
THENCE ALONG SAID PARALLEL LINE SOUTH 4037' 53" WEST 1228.30 FEET
TO THE TRUE POINT OF BEGINNING;
3)
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 40 37' 53" WEST
38.00 FEET TO AN ANGLE POINT THEREIN;
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 40 37' 37" WEST
1619.79 FEET TO A POINT ON THE NORTHWESTERLY LINE OF THE LAND
DESCRIBED IN THE DOCUMENT RECORDED IN BOOK 10657, PAGE 412 OF
OFFICIAL RECORDS OF SAID COUNTY AND AS SHOWN ON SAID RECORD OF
SURVEY, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 1894.00 FEET, A RADIAL
LINE TO SAID BEGINNING BEARS SOUTH 27 21' 58" EAST;
4)
EXHIBIT "A" TO EXHIBIT D
THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE AND SAID
CURVE 140.26 FEET THROUGH A CENTRAL ANGLE OF 4 14' 35"; THENCE
CONTINUING ALONG SAID NORTHWESTERLY LINE SOUTH 66 52' 37" WEST 1087.44
FEET TO A POINT ON A CURVE THAT IS CONCENTRIC WITH AND 118.75 FEET
NORTHEASTERLY FROM THE CENTERLINE OF WARNER A VENUE AS SHOWN ON
SAID RECORD OF SURVEY, SAID CURVE BEING CONCAVE SOUTHWESTERLY
HAVING A RADIUS OF 1718.75 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH
6845' 45" EAST;
THENCE CONCENTRIC AND PARALLEL WITH SAID CENTERLINE OF WARNER
AVENUE THE FOLLOWING TWO (2) COURSES:
1)
NORTHERLY AND NORTHWESTERLY ALONG SAID CURVE 843.12 FEET
THROUGH A CENTRAL ANGLE OF 28 06' 22";
2)
THENCE NORTH 49 20' 37" WEST 468.05 FEET TO THE BEGINNING OF A
CURVE CONCAVE EASTERLY HAVING A RADIUS OF 35.00 FEET;
THENCE NORTHWESTERLY, NORTHERLY AND NORTHEASTERLY ALONG
SAID CURVE 62.22 FEET THROUGH A CENTRAL ANGLE OF 101 51' 19" TO
THE SOUTHEASTERLY LINE OF PETERS CANYON CHANNEL (HA VIN A
SOUTHEASTERLY HALF-WIDTH OF 90 FEET) AS DESCRIVED IN THE
DOCUMENT RECORDED IN BOOK 6681, PAGE 721 OF OFFICIAL RECORDS OF
SAID COUNTY AND AS SHOWN ON SAID RECORD OF SURVEY; THENCE
ALONG SAID SOUTHEASTERLY LINE OF SAID PETERS CANYON CHANNEL
NORTH 52 30' 42" EAST 417.91 FEET TO THE CITY OF IRVINE AS SHOWN ON
SAID RECORD OF SURVEY; THENCE LEAVING SAID SOUTHEASTERLY LINE
AND ALONG SAID CITY BOUNDARY LINE SOUTH 49 21' 01" EAST 45.99 FEET
TO A LINE THAT IS PARALLEL WITH AND 135.00 FEET SOUTHEASTERLY
FROM THE CENTERLINE OF SAID PETERS CANYON CHANNEL; THENCE
ALONG SAID PARALLEL LINE NORTH 52 32' 09" EAST 289.49 FEET; THENCE
LEAVING SAID PARALLEL LINE NORTH 37 27' 51" WEST 5.00 FEET TO A LINE
THAT IS PARALLEL WITH AND 130.00 FEET SOUTHEASTERLY FROM THE
CENTERLINE OF SAID PETERS CANYON CHANNEL;
THENCE PARALLEL AND CONCENTRIC WITH SAID CENTERLINE THE
FOLLOWING THREE (3) COURSES:
I)
2)
NORTH 52 32' 09" EAST 1277.26 FEET TO THE BEGINNING OF A CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 2130.00 FEET;
NORTHEASTERLY ALONG SAID CURVE 238.53 FEET THROUGH A CENTRAL
ANGLE OF 6 24' 58";
NORTH 46 07' II" EAST 210.47 FEET TO A POINT ON SAID SOUTHEASTERLY
LINE OF PETERS CANYON CHANNEL;
3)
EXHIBIT "A" TO EXHIBIT D
THENCE ALONG SAID SOUTHEASTERLY LINE THE FOLLOWING SIX (6) COURSES:
I)
2)
3)
4)
5)
6)
SOUTH 4919' 03" EAST 20.10 FEET;
NORTH 46 07' 11" EAST 74.99 FEET;
NORTH 49 19' 04" WEST 60.28 FEET;
NORTH 4607' II" EAST 32.14 FEET;
SOUTH 4919' 04" EAST 60.28 FEET;
NORTH 46 07' II" EAST 22.10 FEET;
THENCE LEAVING SAID SOUTHEASTERLY LINE SOUTH 49 19' 04" EAST 1311.03
FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM PARCEL I-B-2 AS DESCRIBED IN SAID INSTRUMENT NO.
20020404592, OFFICIAL RECORDS.
PARCEL 2:
NON-EXCLUSIVE EASEMENTS FOR INGRESS AND EGRESS OVER THAT CERTAIN
LAND RESERVED BY THE UNITED STATES OF AMERICA, FOR SAID PURPOSES, IN
THE DEED RECORDED MAY 14,2002 AS INSTRUMENT NO. 2002-0404592, IN THE
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXHIBIT "A" TO EXHIBIT D
STATE OF CALIFORNIA)
) ) ss.
COUNTY OF )
On
Public,
D
D
, before me,
, Notary
(Print Name of Notary Public)
personally appeared
-or-
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 hislher/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person( s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
Signer(s) Other Than Named Above
EXHIBIT "E"
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT, dated as of ,20- (the
"Reimbursement Agreement"), is hereby entered into by and between the CITY OF TUSTIN, a
municipal corporation (the "City"), and
(the "Homeowner").
RECITALS
A.
The Homeowner is purchasing a condominium located at
, Tustin, California (the "Unit").
8. The City and the Homeowner have executed an Affordable Housing Covenant
(the "Covenant") which requires that for a forty-five year period the Unit be sold only to Very
Low Income Households at an affordable housing cost, which may result in purchase prices
which are substantially less than the current fair market value of the Unit.
C. The Homeowner is obtaining a purchase money loan (the "Loan") from a private
lender (the "Lender") for a portion of the costs of acquisition of the Unit. A description of the
Loan is set forth in Exhibit "I" hereto, which is incorporated herein.
D. The Homeowner may Transfer his, her or their interests in the Unit to a Permitted
Transferee who may in turn obtain a purchase money loan from an institutional lender for a
portion of the costs of acquisition of the Unit. This subsequent lender and loan are also
hereinafter referred to as the "Lender" and the "Loan".
E. Pursuant to the Covenant, the City has the right to acquire the Unit in the event,
among other things, that it becomes subject to a foreclosure proceeding, and the City has the
right to make payments to cure a Default or delinquency on the Loan.
F. The right to make payments to cure a Default or delinquency on the Loan will be
of benefit to the City by allowing the City to prevent the foreclosure of the Unit, which will
prevent the possible early termination of the Covenant.
G. The City's right to make payments to cure a Default or delinquency on the Loan
will also be of benefit to the Homeowner, by allowing the Homeowner to retain ownership ofthe
Unit and to avoid foreclosure.
H. The City desires to obtain the authority to make payments to cure a Default or
delinquency on the Loan, on the condition that the Homeowner agrees to reimburse the City for
any payments made to cure a Default or delinquency on the Loan. In order to induce the City to
obtain the authority to make payments to cure a Default or delinquency on the Loan, the
Homeowner is willing to agree to reimburse the City for any payments made to cure a Loan
EXHIBIT E
Default or delinquency. The Homeowner understands and acknowledges that the City would not
make payments to cure a Loan Default or delinquency but for the Homeowner's agreement to
make such reimbursements to the City, as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed by and between the parties hereto as folIows:
1. Cure of Loan Default. The City hereby has the right, but not the obligation, to
make payments to the Lender to fulIy or partialIy cure any Default or delinquency in payments of
the Loan.
2. Reimbursement Obligation of Homeowner. The Homeowner hereby agrees to
reimburse the City for any and all payments made by the City to fulIy or partialIy cure any
Default or delinquency in payments of the Loan. Such payments shalI be made within thirty (30)
days after written demand is made therefor from the City to the Homeowner. The City may
make such written demand to the Homeowner at any time after making such payments. If such
written demand is made by personal delivery of such demand given to the Homeowner, or left at
the Unit, such demand shalI be deemed given immediately upon such delivery. If such written
demand is made by reliable overnight delivery service (such as FedEx), such demand shall be
deemed given one business day after deposit of the written demand with the overnight delivery
service. If such written demand is made by registered or certified U.S. Mail, such demand shalI
be deemed given three business days after deposit of the written demand with the U.S. Postal
Service.
3. Security for Reimbursement. The obligation of the Homeowner to make the
reimbursement payments to the City required under Section 2 shalI be secured by the Affordable
Housing Deed of Trust which shall encumber the Homeowner's fee title to the Unit. Such deed
of trust shall be executed by the Homeowner and shall be recorded in the official records of
Orange County, California, at the time Homeowner acquires title to the Unit. The Homeowner
consents to recordation of such deed of trust in the official records of Orange County, California.
The Affordable Housing Deed of Trust shall secure alI amounts due from the Homeowner and/or
his, her or their successors and assigns as provided in this Reimbursement Agreement.
4. Notice of Default and Delinquency. The Homeowner agrees to deliver to the City
a copy of any notice of Default or delinquency in repayment of the Loan which Homeowner
receives from or on behalf of the Lender. Such notices shalI be delivered to the City within five
(5) days of Homeowner's receipt of such notice from the Lender.
5.
Waivers
(a) The Homeowner expressly agrees that any payment due hereunder may be
extended from time to time at the City's sole and absolute discretion and that the City may
accept security in consideration for any such extension or release any security for this
Reimbursement Agreement at its sole discretion alI without in any way affecting the liability of
the Homeowner.
(b) No extension of time for payment of the amounts due pursuant to this
Reimbursement Agreement made by agreement by the City with any person now or hereafter
EXHIBIT E
liable for the payment of this Reimbursement Agreement shall operate to release, discharge,
modify, change or affect the original liability of the Homeowner under this Reimbursement
Agreement, either in whole or in part.
(c) The obligations of the Homeowner under this Reimbursement Agreement
shall be absolute and the Homeowner waives any and all rights to offset, deduct or withhold any
payments or charges due under this Reimbursement Agreement for any reasons whatsoever.
(d) The Homeowner waives presentment, demand, notice of protest and
nonpayment, notice of Default or delinquency, notice of acceleration, notice of costs, expenses
or leases or interest thereon, notice of dishonor, diligence in collection or in proceeding against
any of the rights of interests in or to properties securing of this Reimbursement Agreement, and
the benefit of any exemption under any homestead exemption laws, if applicable.
(e) No previous waiver and no failure or delay by the City in acting with
respect to the terms of this Reimbursement Agreement shall constitute a waiver of any breach,
Default, or failure or condition under this Reimbursement Agreement. A waiver of any term of
this Reimbursement Agreement must be made in writing and shall be limited to the express
written terms of such waiver.
6. Attorneys' Fees and Costs. The Homeowner agrees that if any amounts due under
this Reimbursement Agreement are not paid when due, the Homeowner shall pay, in addition, all
costs and expenses of collection and reasonable attorneys' fees paid or incurred in connection
with the collection or enforcement of this Reimbursement Agreement, whether or not suit is
filed. The Homeowner further agrees that the provisions of Section 23 of the Covenant
regarding attorneys' fees and costs shall be equally applicable to this Reimbursement
Agreement.
7.
Miscellaneous.
a. Term of Agreement. This Reimbursement Agreement shall take effect
upon the date set forth in the first paragraph hereof and shall terminate concurrently with the
termination of the Covenant.
b. Successor is Deemed Included in All References to Predecessor.
Whenever in this Reimbursement Agreement either the Homeowner or the City is named or
referred to, such reference shall be deemed to include the successors or assigns thereof, and all
the covenants and agreements in this Reimbursement Agreement contained by or on behalf of the
Homeowner or the City shall bind and inure to the benefit of the respective successors and
assigns thereof whether so expressed or not.
c. Amendment. No modification, rescission, waiver, release or amendment
of any provision of this Covenant shall be made except by a written agreement executed by
Homeowner and the City.
d. Notices. All notices, certificates or other communications hereunder shall
be sufficiently given and shall be deemed to have been received in the manner and to the
addresses set forth in Section 22 of the Covenant.
EXHIBIT E
e. Further Assurances and Corrective Instruments. Homeowner shall
execute any further documents consistent with the terms of this Covenant, including documents
in recordable form, as the City shall from time to time find necessary or appropriate to effectuate
its purposes in entering into this Covenant.
f. Execution in Counterparts. This Reimbursement Agreement may be
executed in two or more separate counterparts, each of which, when so executed, shall be
deemed to be an original. Such counterparts shall, together, constitute and shall be one and the
same instrument. This Agreement shall not be effective until the execution and delivery by the
parties of at least one set of counterparts. The parties hereunder authorize each other to detach
and combine original signature pages and consolidate them into a single identical original. Any
one of such completely executed counterparts shall be sufficient proof of this Agreement.
g. Applicable Law. This Reimbursement Agreement shall be governed by
and construed in accordance with the laws of the State of California.
h. Captions. The captions or headings in this Reimbursement Agreement are
for convenience only and in no way define, limit or describe the scope or intent of any provisions
ofthis Reimbursement Agreement.
i. Definition of Terms. Terms not otherwise defined in this Reimbursement
Agreement are defined in the Covenant.
IN WITNESS WHEREOF, the Homeowner and the City have caused this
Reimbursement Agreement to be executed by their duly authorized respective officers, all as of
the date first above written.
CITY OF TUSTIN:
By:
Name:
Title:
HOMEOWNER:
By:
Printed Name:
By:
Printed Name:
EXHIBIT E
EXHIBIT "I" TO EXHIBIT E
Name of Homeowner:
Address of Unit:
Name of Lender:
Amount of Loan:
EXHIBIT "I" TO EXHIBIT E
EXHIBIT "F"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City ofTustin City
300 Centennial Way
Tustin, California 92780
Attention: Assistant City Manager
)
)
)
)
)
)
)
)
)
This document is exempt from the payment
of a recording fee pursuant to Government
Code Section 27383.
OPTION AGREEMENT
THIS OPTION AGREEMENT is entered into as of
200_, by and between the CITY OF TUSTIN, a municipal corporation (the "City"), and
(the "Homeowner").
RECITALS
A.
Homeowner has purchased a condominium located at
, Tustin,
California, as such real property is more particularly described in Exhibit "A" attached hereto
and incorporated herein (the "Unit").
8. In order to assist Homeowner in the purchase of the Unit, the City agreed to
accept as part payment of amounts owed by the Developer to the City a promissory note
executed by Homeowner (the "Affordable Housing Note") in connection with Homeowner's
purchase of the Unit.
C. Homeowner and the City have entered into an Affordable Housing Covenant
dated concurrently herewith (the "Covenant"). Under the terms of the Covenant, the parties have
agreed that for a forty-five year period the Unit shall be sold only to Very Low Income
Households at an Affordable Housing Cost and that the Unit may be sold or otherwise
transferred only as provided in Section 4 of the Covenant.
D. Pursuant to Section 7 of the Covenant, the Homeowner has agreed to grant to the
City an option to purchase the Unit in the event Homeowner is in Default of any of his or her
obligations set forth in the Covenant.
E. Homeowner desires to grant to City an option to purchase the Unit on the terms
and conditions set forth hereinbelow. For purposes of this Option Agreement, "Unit" shan also
be deemed to include any and an improvements located on the real property.
EXHIBIT F
NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants and
conditions contained herein, the parties hereto agree as follows:
1.
Grant of Option.
(a) Homeowner grants to City an option (the "Option") to purchase the Unit on
the terms and conditions set forth in this Option Agreement. The Option may be exercised only
(i) upon the occurrence of an event of Default under the Covenant, or (ii) the due date ofthe
Affordable Housing Note is accelerated because of a transfer by the Owner of title to the Unit.
(b) The purchase price payable by the City to the Homeowner for the Unit shall
be the Affordable Housing Cost of the Unit for Very Low Income Households (as defined in the
Covenant), as of the date of the close of escrow for the City's acquisition of the Unit (the
"Option Price"). Homeowner agrees that this Option may be specifically enforced.
(c) For purposes of this Option Agreement, the Affordable Housing Cost of the
Unit shall be reasonably determined the City by assuming (a) a 30 year, fully amortized, level
payment mortgage loan for 97% of the price of the Unit, at currently prevailing mortgage rates,
(b) the prevailing cost of mortgage insurance payments for the loan described in subparagraph
(a), but only if mortgage insurance would customarily be charged for such loan, (c) property
taxes and assessments based on the reassessment of the Unit as of the closing date of the City's
acquisition of the Unit, assuming the Unit is not exempt from such taxes and assessments, (d)
current homeowner's association fees, (e) the prevailing cost for fire and casualty insurance,
however, if the homeowner's association carries fire and casualty insurance with respect to the
exterior of the Unit, then no additional cost shall be assigned to fire and casualty insurance, and
Cf) use of the utilities allowance established by the Orange County Housing Authority for the size
ofthe Unit, or if no such allowance exists at that time, then a reasonable utilities allowance as
determined by the City.
(d) The Option created hereby shall be irrevocable by Homeowner and shall be
binding upon the successors and assigns of Homeowner. The City shall have the right of specific
performance to enforce the terms of this Option Agreement.
2. Term and Consideration for Option. The term of the Option ("Option Term")
shall commence on the date of this Option Agreement, and shall expire upon the expiration or
termination of the Covenant.
3. Exercise of Option. The Option may be exercised by City's delivery to Owner of
written notice of such exercise (the "Exercise Notice"). In the event that the City exercises the
Option, but, prior to the sale of the Unit to the City, the Owner cures the event that gave rise to
the right ofthe City to exercise the Option, the City's exercise of the Option shall be deemed
revoked. The revocation of the exercise of the Option shall not terminate this Option Agreement
or preclude the City from subsequently exercising the Option upon a later occurrence of an event
giving rise to the right of the City to exercise the Option.
4. Escrow and Completion of Sale. Within five (5) days after City has exercised the
Option, or as soon thereafter as reasonably practicable, an escrow shall be opened with an
escrow company mutually acceptable to City and Homeowner for the conveyance of the Unit to
EXHIBIT F
the City. The Option Price shall be paid by the City in part by cancellation ofthe Affordable
Housing Note. The City shall deposit in escrow not later than one (I) business day prior to the
anticipated close of escrow date the Affordable Housing Note, to be cancelled by the escrow
holder upon the consummation of the sale, and cash in an amount equal to the difference
between the Option Price and the amount then due on the Affordable Housing Note. The City's
obligation to close escrow shall be subject to the City's approval ofa then-current preliminary
title report and, at City's option, environmental and other site testing. Any exceptions shown on
such preliminary title report created on or after the Homeowner's acquisition of the Unit shall be
removed by Homeowner at its sole expense prior to the close of escrow pursuant to this Section
1 unless such exceptiones) is (are) accepted by City in its reasonable discretion; provided,
however, that City shall accept the following exceptions to title: (i) current taxes not yet
delinquent, (ii) matters affecting title existing on the date of Homeowner's acquisition of the
Unit, (iii) liens and encumbrances in favor of the City of Tustin, and (iv) matters shown as
printed exceptions in the standard form CLTA owner's policy of title insurance. The parties
shall each be responsible for one-half of the escrow fees, documentary transfer taxes, recording
fees and any other costs and expenses of the escrow, and the Homeowner shall be responsible for
the cost of a CL T A owner's policy of title insurance. City shall have thirty (30) days after
exercise of the Option to enter upon the Unit to conduct any tests, inspections, investigations, or
studies of the condition of the Unit. Homeowner shall permit the City access to the Unit for such
purposes. The City shall indemnify, defend, and hold harmless Homeowner and its officers,
directors, shareholders, partners, employees, agents, and representatives from and against all
claims, liabilities, or damages, and including expert witness fees and reasonable attorney's fees
and costs, caused by City's activities with respect to or arising out of such testing, inspection, or
investigatory activity on the Unit. Escrow shall close promptly after acceptance by City of the
condition of title and the physical and environmental condition of the Unit. Until the Closing,
the terms of the Covenant and the documents executed and recorded pursuant thereto shall
remain in full force and effect.
5. Failure to Exercise Option. If the Option is not exercised in the manner provided
in Section 3 above before the expiration of the Option Term, the Option shall terminate. Upon
receipt of the written request of Homeowner, City shall cause a quitclaim deed terminating or
releasing any and all rights City may have to acquire the Unit (the "Quitclaim Deed") to be
recorded in the Official Records of Orange County, California.
6. Assignment and Nomination. The City may, at its option, assign its rights
hereunder without obtaining the consent of the Homeowner, and the City may nominate another
person or entity to acquire the Unit, and the identity of such nominee shall not be subject to the
approval of the Homeowner. In no event shall Homeowner, without the prior express written
consent of the City, which consent shall be given by the City only in the event that the City
determines the Transfer fully complies with Section 4 of the Covenant, assign or transfer its
obligations of this Option to any person other than a Permitted Transferee as provided in the
Covenant.
7. Title. Following the date hereof, except as permitted by the Covenant,
Homeowner agrees not to cause, and shall use commercially reasonable efforts not to permit, any
lien, easement, encumbrance or other exception to title to be recorded against the Unit without
City's prior written approval, such approval not to be unreasonably withheld.
EXHIBIT F
8. Representations and Warranties of Homeowner. Homeowner hereby represents,
warrants and covenants to City as follows, which representations and warranties shall survive the
exercise of the Option and the Close of Escrow:
(a) that this Option Agreement and the other documents to be executed by
Homeowner hereunder, upon execution and delivery thereof by Homeowner, will have been duly
entered into by Homeowner, and will constitute legal, valid and binding obligations of
Homeowner;
(b) neither this Option Agreement, nor anything provided to be done under this
Option Agreement, violates or shall violate any contract, document, understanding, agreement or
instrument to which Homeowner is a party or by which it is bound; and
(c) Homeowner shall pay, prior to delinquency, any and all real property taxes
and assessments which affect the Unit.
Homeowner agrees to indemnify, protect, defend, and hold City and the Unit harmless from and
against any damage, claim, liability, or expense of any kind whatsoever (including, without
limitation, reasonable attorneys' fees and fees of expert witnesses) arising from or in connection
with any breach of the foregoing representations, warranties and covenants. Such
representations and warranties of Homeowner, shall be true and correct on and as of the date of
this Option Agreement and on and as of the date of the Close of Escrow.
9. Representations and Warranties of City. City hereby represents and warrants and
covenants to Homeowner, as follows, which representations and warranties shall survive the
Close of Escrow:
(a) that this Option Agreement and the other documents to be executed by City
hereunder, upon execution and delivery thereof by City, will have been duly entered into by City,
and will constitute legal, valid and binding obligations of City, and
(b) neither this Option Agreement, nor anything provided to be done under this
Option Agreement, violates or shall violate any contract, document, understanding, agreement or
instrument to which City is a party or by which it is bound.
City agrees to indemnify, protect, defend, and hold Homeowner and the Unit harmless from and
against any damage, claim, liability, or expense of any kind whatsoever (including, without
limitation, reasonable attorneys' fees and fees of expert witnesses) arising from or in connection
with any breach of the foregoing representations, warranties and covenants. Such
representations and warranties of City, and any other representations and warranties of City
contained elsewhere in this Option Agreement shall be true and correct on and as of the date of
this Option Agreement and on and as of the date of the Close of Escrow.
10.
General Provisions.
10.1 Paragraph Headings. The paragraph headings used in this Option
Agreement are for purposes of convenience only. They shall not be construed to limit or extend
the meaning of any part of this Option Agreement.
EXHIBIT F
10.2 Notices. All notices, demands, consents, requests and other
communications required or permitted to be given under this Agreement shall be in writing and
shall be deemed conclusively to have been duly given (a) when hand delivered to the other party;
(b) three (3) business days after such notice has been sent by United States mail via certified
mail, return receipt requested, postage prepaid, and addressed to the other party as set forth
below; or (c) the next business day after such notice has been deposited with a national overnight
delivery service reasonably approved by the parties (Federal Express and Airborne Express are
deemed approved by the parties), postage prepaid, addressed to the party to whom notice is being
sent as set forth below with next-business-day delivery guaranteed, provided that the sending
party receives a confirmation of delivery from the delivery service provider. Unless otherwise
provided in writing, all notices hereunder shall be addressed as follows:
To Homeowner:
To City:
City ofTustin
Tustin City Hall
300 Centennial Way
Tustin, California 92780
Attention: City Manager
and Attention: Assistant City Manager
with a copy to:
City Attorney
City of Tustin
Woodruff Spradlin & Smart
701 S. Parker Street, Suite 8000
Orange, California 92868-4760
Attention: Lois E. Jeffrey, Esq.
10.3 Binding Effect. Subject to the provisions of Section 6, the terms,
covenants and conditions of this Option Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and transferees.
10.4 Entire Agreement. This Option Agreement sets forth the entire agreement
between the parties hereto respecting the Option, and supersedes all prior negotiations and
agreements, written or oral, concerning or relating to the subject matter of this Option
Agreement.
10.5
California Law. This Option Agreement shall be governed by the laws of
EXHIBIT F
the State of California and any question arising hereunder shall be construed or determined
according to such laws.
10.6 Time of the Essence. Time is of the essence of each and every provision
of this Option Agreement.
10.7 Counterparts. This Option Agreement may be signed by the parties hereto
in duplicate counterparts which together shall constitute one and the same agreement between
the parties and shall become effective at such time as both of the parties shall have signed such
counterparts.
10.8 Attorneys' Fees. If any party to this Agreement institutes any action, suit,
counterclaim, appeal, arbitration or mediation for any relief against another party, declaratory or
otherwise (collectively an "Action"), to enforce the terms hereof or to declare rights hereunder or
with respect to any inaccuracies or material omissions in connection with any of the covenants,
representations or warranties on the part of the other party to this Agreement, then the prevailing
party in such Action, whether by arbitration or final judgment, shall be entitled to have and
recover of and from the other party all costs and expenses of the Action, including reasonable
attorneys' fees and costs (at the prevailing party's attorneys' then-prevailing rates as increased
from time to time by the giving of advanced written notice by such counsel to such party)
incurred in bringing and prosecuting such Action and/or enforcing any judgment, order, ruling or
award (collectively, a "Decision") granted therein, all of which shall be deemed to have accrued
on the commencement of such Action and shall be paid whether or not such Action is prosecuted
to a Decision. Any Decision entered in such Action shall contain a specific provision providing
for the recovery of attorneys' fees and costs incurred in enforcing such Decision. A court or
arbitrator shall fix the amount ofreasonable attorneys' fees and costs upon the request of either
party. Any judgment or order entered in any final judgment shall contain a specific provision
providing for the recovery of all costs and expenses of suit, including reasonable attorneys' fees
and expert fees and costs (collectively "Costs") incurred in enforcing, perfecting and executing
such judgment. For the purposes of this paragraph, Costs shall include, without limitation, in
addition to Costs incurred in prosecution or defense of the underlying action, reasonable
attorneys' fees, costs, expenses and expert fees and costs incurred in the following: (a)
post judgment motions and collection actions; (b) contempt proceedings; (c) garnishment, levy,
debtor and third party examinations; (d) discovery; (e) bankruptcy litigation; and (t) appeals of
any order or judgment. "Prevailing party" within the meaning of this section includes, without
limitation, a party who agrees to dismiss an Action in consideration for the other party's payment
of the amounts allegedly due or performance of the covenants allegedly breached, or obtains
substantially the relief sought by such party.
10.9 Computation of Time. All periods of time referred to in this Option
Agreement shall include all Saturdays, Sundays and state or national holidays, unless the period
of time is specified as business days (which shall not include Saturdays, Sundays and state or
national holidays), provided that if the date or last date to perform any act or give any notice with
respect to this Option Agreement shall fall on a Saturday, Sunday or state or national holiday,
such act or notice may be timely performed or given on the next succeeding day which is not a
Saturday, Sunday or state or national holiday. Time is of the essence with respect to all
provisions of this Agreement in which a definite time for performance is specified; provided,
EXHIBIT F
however, that the foregoing shan not be construed to limit or deprive a party of the benefits of
any grace or use period provided for in this Agreement.
10.10 Definition of Terms. Terms not otherwise defined in this Option
Agreement are defined in the Covenant.
10.11 Further Assurances. Each of the parties hereto shan execute and deliver at
their own cost and expense, any and an additional papers, documents, or instruments, and shan
do any and all acts and things reasonably necessary or appropriate in connection with the
performance of their respective obligations hereunder in order to carry out the intent and
purposes of this Agreement.
IN WITNESS WHEREOF, this Option Agreement is executed by the parties
hereto as of the date first above written.
BUYER:
By:
Printed Name:
By:
Printed Name:
CITY:
CITY OF TUSTIN, a municipal corporation
By:
EXHIBIT F
EXHIBIT "A" TO EXHIBIT F
LEGAL DESCRIPTION
PARCEL I:
IN THE CITY OF TUSTIN AND CITY OF IRVINE, COUNTY OF ORANGE, STATE OF
CALIFORNIA, BEING THAT PORTION OF BLOCKS 61 AND 62 OF IRVINE'S
SUBDIVISION AS SHOWN ON THE MAP FILED IN BOOK I, PAGE 88 OF
MISCELLANEOUS RECORD MAPS, AND AS SHOWN ON A MAP FILED IN BOOK 165,
PAGES 31 THROUGH 39, INCLUSIVE, OF RECORDS OF SURVEY, BOTH OF THE
RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHEASTERLY CORNER OF PARCEL I-B-3 AS
DESCRIBED IN A DOCUMENT RECORDED MAY 14, 2002 AS INSTRUMENT NO.
20020404592 OF OFFICIAL RECORDS OF SAID COUNTY AND SAID CORNER ALSO
BEING THE INTERSECTION OF THE NORTHWESTERLY LINE OF HARVARD
AVENUE (HAVING A NORTHWESTERLY HALF-WIDTH OF 36 FEET) AND THE
SOUTHWESTERLY LINE OF EDINGER AVENUE (HAVING A SOUTHWESTERLY
HALF-WIDTH OF 60 FEET) AS SHOWN ON SAID RECORD OF SURVEY, SAID
SOUTHWESTERLY LINE OF EDINGER A VENUE BEING A CURVE CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 1740.00 FEET, A RADIAL LINE TO SAID
INTERSECTION BEARS NORTH 52 44'05" EAST;
THENCE ALONG THE NORTHEASTERLY AND NORTHWESTERLY LINE OF SAID
PARCEL THE FOLLOWING FOUR (4) COURSES:
1)
NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE AND SAID CURVE
33.68 FEET THROUGH A CENTRAL ANGLE OF I 06' 33" TO A LINE THAT IS
PARALLEL WITH AND 69 FEET NORTHWESTERLY FROM THE CENTERLINE
OF SAID HARVARD A VENUE AS SHOWN ON SAID RECORD OF SURVEY;
2)
THENCE ALONG SAID PARALLEL LINE SOUTH 4037' 53" WEST 1228.30 FEET
TO THE TRUE POINT OF BEGINNING;
3)
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 40 37' 53" WEST
38.00 FEET TO AN ANGLE POINT THEREIN;
4)
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 40 37' 37" WEST
1619.79 FEET TO A POINT ON THE NORTHWESTERLY LINE OF THE LAND
DESCRIBED IN THE DOCUMENT RECORDED IN BOOK 10657, PAGE 412 OF
OFFICIAL RECORDS OF SAID COUNTY AND AS SHOWN ON SAID RECORD OF
SURVEY, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 1894.00 FEET, A RADIAL
LINE TO SAID BEGINNING BEARS SOUTH 27 21' 58" EAST;
EXHIBIT "A" TO EXHIBIT F
THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE AND SAID
CURVE 140.26 FEET THROUGH A CENTRAL ANGLE OF 4 14' 35"; THENCE
CONTINUING ALONG SAID NORTHWESTERLY LINE SOUTH 66 52' 37" WEST 1087.44
FEET TO A POINT ON A CURVE THAT IS CONCENTRIC WITH AND 118.75 FEET
NORTHEASTERLY FROM THE CENTERLINE OF WARNER AVENUE AS SHOWN ON
SAID RECORD OF SURVEY, SAID CURVE BEING CONCAVE SOUTHWESTERLY
HAVING A RADIUS OF 1718.75 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH
6845' 45" EAST;
THENCE CONCENTRIC AND PARALLEL WITH SAID CENTERLINE OF WARNER
AVENUE THE FOLLOWING TWO (2) COURSES:
I)
NORTHERLY AND NORTHWESTERLY ALONG SAID CURVE 843.12 FEET
THROUGH A CENTRAL ANGLE OF 28 06' 22";
2)
THENCE NORTH 49 20' 37" WEST 468.05 FEET TO THE BEGINNING OF A
CURVE CONCAVE EASTERLY HAVING A RADIUS OF 35.00 FEET;
THENCE NORTHWESTERLY, NORTHERLY AND NORTHEASTERLY ALONG
SAID CURVE 62.22 FEET THROUGH A CENTRAL ANGLE OF 101 51' 19" TO
THE SOUTHEASTERLY LINE OF PETERS CANYON CHANNEL (HA VIN A
SOUTHEASTERLY HALF-WIDTH OF 90 FEET) AS DESCRIVED IN THE
DOCUMENT RECORDED IN BOOK 6681, PAGE 721 OF OFFICIAL RECORDS OF
SAID COUNTY AND AS SHOWN ON SAID RECORD OF SURVEY; THENCE
ALONG SAID SOUTHEASTERLY LINE OF SAID PETERS CANYON CHANNEL
NORTH 52 30' 42" EAST 417.91 FEET TO THE CITY OF IRVINE AS SHOWN ON
SAID RECORD OF SURVEY; THENCE LEAVING SAID SOUTHEASTERLY LINE
AND ALONG SAID CITY BOUNDARY LINE SOUTH 49 21' 01" EAST 45.99 FEET
TO A LINE THAT IS PARALLEL WITH AND 135.00 FEET SOUTHEASTERLY
FROM THE CENTERLINE OF SAID PETERS CANYON CHANNEL; THENCE
ALONG SAID PARALLEL LINE NORTH 52 32' 09" EAST 289.49 FEET; THENCE
LEAVING SAID PARALLEL LINE NORTH 37 27' 51" WEST 5.00 FEET TO A LINE
THAT IS PARALLEL WITH AND 130.00 FEET SOUTHEASTERLY FROM THE
CENTERLINE OF SAID PETERS CANYON CHANNEL;
THENCE PARALLEL AND CONCENTRIC WITH SAID CENTERLINE THE
FOLLOWING THREE (3) COURSES:
I)
2)
NORTH 52 32' 09" EAST 1277.26 FEET TO THE BEGINNING OF A CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 2130.00 FEET;
NORTHEASTERLY ALONG SAID CURVE 238.53 FEET THROUGH A CENTRAL
ANGLE OF 6 24' 58";
NORTH 46 07' II" EAST 210.47 FEET TO A POINT ON SAID SOUTHEASTERLY
LINE OF PETERS CANYON CHANNEL;
3)
EXHIBIT "A" TO EXHIBIT F
THENCE ALONG SAID SOUTHEASTERLY LINE THE FOLLOWING SIX (6) COURSES:
I)
2)
3)
4)
5)
6)
SOUTH 4919' 03" EAST 20.10 FEET;
NORTH 46 07' II" EAST 74.99 FEET;
NORTH 49 19' 04" WEST 60.28 FEET;
NORTH 46 07' II" EAST 32.14 FEET;
SOUTH 49 19' 04" EAST 60.28 FEET;
NORTH 46 07' II" EAST 22.10 FEET;
THENCE LEAVING SAID SOUTHEASTERLY LINE SOUTH 49 19' 04" EAST 1311.03
FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM PARCEL I-B-2 AS DESCRIBED IN SAID INSTRUMENT NO.
20020404592, OFFICIAL RECORDS.
PARCEL 2:
NON-EXCLUSIVE EASEMENTS FOR INGRESS AND EGRESS OVER THAT CERTAIN
LAND RESERVED BY THE UNITED STATES OF AMERICA, FOR SAID PURPOSES, IN
THE DEED RECORDED MAY 14, 2002 AS INSTRUMENT NO. 2002-0404592, IN THE
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXHIBIT "A" TO EXHIBIT F
STATE OF CALIFORNIA)
) ss.
COUNTY OF )
On
Public,
0
0
, before me,
, Notary
(Print Name of Notary Public)
personally appeared
-or-
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. .
WITNESS my hand and official seal.
Signature of Notary
Signer(s) Other Than Named Above
EXHIBIT F
STATE OF CALIFORNIA)
) ) ss.
COUNTY OF )
On
Public,
0
0
200152.7
, before me,
, Notary
(Print Name of Notary Public)
personally appeared
-or-
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.
WITNESS my hand and official seal.
Signature of Notary
Signer(s) Other Than Named Above
Attachment 6
June 13, 2005
ATTACHMENT NO. 7
MEMORANDUM OF AGREEMENT
200152.7
Attachment 7
June 13,2005
RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: Assistant City Manager
No fee for recording requested pursuant to Government Code Sections 6103 and 27383
MEMORANDUM OF HOUSING AGREEMENT
THIS MEMORANDUM OF HOUSING AGREEMENT ("Memorandum of
Agreement") is made as of , 2005, by and between the CITY OF
TUSTIN, a municipal corporation (the "City"), and MOFFETT MEADOWS PARTNERS,
LLC, a Delaware limited liability company (the "Developer") to confirm that the City and the
Developer have entered into that certain Housing Agreement dated as of , 2005
(the "Agreement") affecting the real property described below. The Agency and the Developer
are sometimes referred to herein individually as a "party" and collectively as the "Parties".
Initially capitalized terms used herein and not otherwise defined shall have the meaning ascribed
to such terms in the Agreement.
I. Property Affected by the Agreement. The following described land is subject to the
terms, covenants, conditions and restrictions set forth in the Agreement:
1.1 The "Property" consisting of, as of the date hereof, that certain property located
at COLUMBUS GROVE, in the City of Tustin, County of Orange, State of California. The
Property is more particularly described on Attachment No. I, attached hereto, and incorporated
herein by this reference.
1.2 This Memorandum of Agreement has been executed and shall be recorded
immediately following execution of the Agreement and this Memorandum of Agreement shall
each be binding upon the Property in accordance with its terms.
2. Effect of Agreement. The Agreement imposes certain obligations, agreements,
covenants, conditions and restrictions with respect to the Property and Developer's,
development, use, operation and ultimate disposition thereof, that run with the land as further set
forth below, including without limitation:
(a) the covenants for the development and sale of Affordable Housing Units
contained in Section 3 of the Agreement; that remain in effect until escrow closes on all such
units.
200152.7
Attachment 7
June 13, 2005
nu_nu"_nu__- "__""_n ____"n___- "nun'"" -_.,-------- ._-" __nn
(b) certain restrictions on assignment of the Agreement contained in Section 6
of the Agreement that remain in effect until all of the Affordable Housing Units on the Property
are sold to Owner/Occupiers.
(c) the non-discrimination covenants contained in Section 3.4 of the
Agreement that remain in effect in perpetuity.
3.
Agreement and Memorandum of Agreement Run With the Land.
The Agreement and this Memorandum of Agreement, including, without limitation, the
provisions recited and set forth above, and all other obligations, agreements, covenants,
conditions, restrictions, set forth in the Agreement and this Memorandum of Agreement, are
hereby agreed by the Developer and the City to be covenants running with the land and
enforceable as equitable servitudes against the Property, and are hereby declared to be and shall
be binding upon the Property and the Developer and the successors and assigns of the Developer
owning all or any portion of the Property for the benefit of the City, except that a City-approved
written assignment to a Builder/Purchaser that is recorded against the portion of the Property
purchased by the BuilderlPurchaser shall relieve Developer of its obligations under the
Agreement for that portion of the Property.
4.
Acknowledgement and Assumption by Developer.
The Developer hereby acknowledges and assumes all responsibilities placed upon the
Developer under the terms of the Agreement.
5.
Public Documents.
The documents constituting the Agreement are public documents and may be reviewed at
the official offices of the City.
6.
Interpretations; Notice.
This Memorandum of Agreement is prepared for recordation and notice purposes only
and in no way modifies the terms, conditions, provisions and covenants of the Agreement. In the
event of any inconsistency between the terms, conditions, provisions and covenants of the
Agreement and this Memorandum of Agreement, the Agreement shall prevail.
7.
Attachments.
Attachment No. I to this Memorandum of Agreement is hereby incorporated by this
reference as though fully set forth in this Section.
IN WITNESS WHEREOF, the City and the Developer have signed this Memorandum of
Agreement as of the date first set forth above.
200152.7
Attachment 7
June 13, 2005
)
)
Dated:
ATTEST:
By:
Pam Stoker, City Clerk
APPROVED AS TO FORM:
WOODRUFF, SPRADLIN & SMART
By;
Lois E. Jeffrey, City Attorney
)
Dated:
Dated:
APPROVED AS TO FORM:
By:
William Devine, Legal Counsel
200152.8
Attachment 7
"CITY"
CITY OF TUSTIN
By:
Lou Bone, Mayor
"DEVELOPER"
MOFFETT MEADOWS PARTNERS,
LLC, a Delaware limited liability company
By: Marble Mountain Partners, LLC, its
sole member, a Delaware limited
liability company, its administrative
member
By: Lennar Homes ofCalifomia,
Inc., a California corporation,
its managing member
By: ~ k~~(
Rlichard Knowland,
Vice President
B~ ¿~~ ~
As~t Secretary
June 3, 2005
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
"
~ ~..---~
~.-
State of California
County of
} ss,
On
before
me,
De"
Nem, ,,' 1111, of 0111", le.g., 'J"e Doe, Nofe~ Po"I,")
personally
appeared
Nemel') of Slgoe'I'1
D personally known to me
D 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.
WITNESS my hand and official seal.
Pia" Nofa~ Seal Ab"e
Sigoaf",' of No"~ Po"l,
OPTIONAL
Though the information beiow is not required by iaw. it may prove vaiuable to persons relying on the document
and couid prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
D Individual
D Corporate Officer - Tille(s):
D Partner - D Limited D General
D Attorney in Fact
0 Trustee
D Guardian or Conservator
D Other:
.
Top of thomb he,e
Signer's Name:
D Individual
D Corporate Officer - Titie(s):
D Partner - D Limited D General
D Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
.
Top of thomb h"e
Signer Is Representing:
Signer Is Representing:
~-§~._-~-~-~-~-~ ~ -,~-,--~-~~
" 2004 Neflooal No"~ A,_e'," . 9350 De Sofa Me., P.O. Bo< 2402 . Chalsworth, CA 913t 3-2402 IIem No. 5907 Roo"'e, Cell ToII-F'ee t -BOO-876-6827
ATTACHMENT NO.1
LEGAL DESCRIPTION
PARCEL I:
IN THE CITY OF TUSTIN AND CITY OF IRVINE, COUNTY OF ORANGE, STATE OF
CALIFORNIA, BEING THAT PORTION OF BLOCKS 61 AND 62 OF IRVINE'S
SUBDIVISION AS SHOWN ON THE MAP FILED IN BOOK I, PAGE 88 OF
MISCELLANEOUS RECORD MAPS, AND AS SHOWN ON A MAP FILED IN BOOK 165,
PAGES 31 THROUGH 39, INCLUSIVE, OF RECORDS OF SURVEY, BOTH OF THE
RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHEASTERLY CORNER OF PARCEL l-B-3 AS
DESCRIBED IN A DOCUMENT RECORDED MAY 14, 2002 AS INSTRUMENT NO.
20020404592 OF OFFICIAL RECORDS OF SAID COUNTY AND SAID CORNER ALSO
BEING THE INTERSECTION OF THE NORTHWESTERLY LINE OF HARVARD
AVENUE (HAVING A NORTHWESTERLY HALF-WIDTH OF 36 FEET) AND THE
SOUTHWESTERLY LINE OF EDINGER A VENUE (HAVING A SOUTHWESTERLY
HALF-WIDTH OF 60 FEET) AS SHOWN ON SAID RECORD OF SURVEY, SAID
SOUTHWESTERLY LINE OF EDINGER AVENUE BEING A CURVE CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 1740.00 FEET, A RADIAL LINE TO SAID
INTERSECTION BEARS NORTH 52 44'05" EAST;
THENCE ALONG THE NORTHEASTERLY AND NORTHWESTERLY LINE OF SAID
PARCEL THE FOLLOWING FOUR (4) COURSES:
I)
NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE AND SAID CURVE
33.68 FEET THROUGH A CENTRAL ANGLE OF I 06' 33" TO A LINE THAT IS
PARALLEL WITH AND 69 FEET NORTHWESTERLY FROM THE CENTERLINE
OF SAID HARVARD AVENUE AS SHOWN ON SAID RECORD OF SURVEY;
2)
THENCE ALONG SAID PARALLEL LINE SOUTH 4037' 53" WEST 1228.30 FEET
TO THE TRUE POINT OF BEGINNING;
3)
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 4037' 53" WEST
38.00 FEET TO AN ANGLE POINT THEREIN;
4)
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 40 37' 37" WEST
1619.79 FEET TO A POINT ON THE NORTHWESTERLY LINE OF THE LAND
DESCRIBED IN THE DOCUMENT RECORDED IN BOOK 10657, PAGE 412 OF
OFFICIAL RECORDS OF SAID COUNTY AND AS SHOWN ON SAID RECORD OF
SURVEY, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 1894.00 FEET, A RADIAL
LINE TO SAID BEGINNING BEARS SOUTH 27 21' 58" EAST;
200152.7
Attachment No.1
June 13,2005
THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE AND SAID
CURVE 140.26 FEET THROUGH A CENTRAL ANGLE OF 4 14' 35"; THENCE
CONTINUING ALONG SAID NORTHWESTERLY LINE SOUTH 66 52' 37" WEST 1087.44
FEET TO A POINT ON A CURVE THAT IS CONCENTRIC WITH AND 118.75 FEET
NORTHEASTERLY FROM THE CENTERLINE OF WARNER A VENUE AS SHOWN ON
SAID RECORD OF SURVEY, SAID CURVE BEING CONCAVE SOUTHWESTERLY
HAVING A RADIUS OF 1718.75 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH
6845' 45" EAST;
THENCE CONCENTRIC AND PARALLEL WITH SAID CENTERLINE OF WARNER
A VENUE THE FOLLOWING TWO (2) COURSES:
I)
NORTHERLY AND NORTHWESTERLY ALONG SAID CURVE 843.12 FEET
THROUGH A CENTRAL ANGLE OF 28 06' 22";
2)
THENCE NORTH 49 20' 37" WEST 468.05 FEET TO THE BEGINNING OF A
CURVE CONCAVE EASTERLY HAVING A RADIUS OF 35.00 FEET;
THENCE NORTHWESTERLY, NORTHERLY AND NORTHEASTERLY ALONG
SAID CURVE 62.22 FEET THROUGH A CENTRAL ANGLE OF 101 51' 19" TO
THE SOUTHEASTERLY LINE OF PETERS CANYON CHANNEL (HA VIN A
SOUTHEASTERLY HALF-WIDTH OF 90 FEET) AS DESCRIVED IN THE
DOCUMENT RECORDED IN BOOK 6681, PAGE 721 OF OFFICIAL RECORDS OF
SAID COUNTY AND AS SHOWN ON SAID RECORD OF SURVEY; THENCE
ALONG SAID SOUTHEASTERLY LINE OF SAID PETERS CANYON CHANNEL
NORTH 52 30' 42" EAST 417.91 FEET TO THE CITY OF IRVINE AS SHOWN ON
SAID RECORD OF SURVEY; THENCE LEAVING SAID SOUTHEASTERLY LINE
AND ALONG SAID CITY BOUNDARY LINE SOUTH 49 21' 01" EAST 45.99 FEET
TO A LINE THAT IS PARALLEL WITH AND 135.00 FEET SOUTHEASTERLY
FROM THE CENTERLINE OF SAID PETERS CANYON CHANNEL; THENCE
ALONG SAID PARALLEL LINE NORTH 52 32' 09" EAST 289.49 FEET; THENCE
LEAVING SAID PARALLEL LINE NORTH 37 27' 51" WEST 5.00 FEET TO A LINE
THAT IS PARALLEL WITH AND 130.00 FEET SOUTHEASTERLY FROM THE
CENTERLINE OF SAID PETERS CANYON CHANNEL;
THENCE PARALLEL AND CONCENTRIC WITH SAID CENTERLINE THE
FOLLOWING THREE (3) COURSES:
I)
2)
NORTH 52 32' 09" EAST 1277.26 FEET TO THE BEGINNING OF A CURVE
CONCAVE NORTHWESTERLY HAVING A RADIUS OF 2130.00 FEET;
NORTHEASTERLY ALONG SAID CURVE 238.53 FEET THROUGH A CENTRAL
ANGLE OF 6 24' 58";
NORTH 46 07' II" EAST 210.47 FEET TO A POINT ON SAID SOUTHEASTERLY
LINE OF PETERS CANYON CHANNEL;
3)
200152.7
Attachment No.1
June 13,2005
THENCE ALONG SAID SOUTHEASTERLY LINE THE FOLLOWING SIX (6) COURSES:
I)
2)
3)
4)
5)
6)
SOUTH 4919' 03" EAST 20.10 FEET;
NORTH 46 07' II" EAST 74.99 FEET;
NORTH 49 19' 04" WEST 60.28 FEET;
NORTH 46 07' II" EAST 32.14 FEET;
SOUTH 49 19' 04" EAST 60.28 FEET;
NORTH 46 07' II" EAST 22.10 FEET;
THENCE LEAVING SAID SOUTHEASTERLY LINE SOUTH 49 19' 04" EAST 1311.03
FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM PARCEL I-B-2 AS DESCRIBED IN SAID INSTRUMENT NO.
20020404592, OFFICIAL RECORDS.
PARCEL 2:
NONcEXCLUSIVE EASEMENTS FOR INGRESS AND EGRESS OVER THAT CERTAIN
LAND RESERVED BY THE UNITED STATES OF AMERICA, FOR SAID PURPOSES, IN
THE DEED RECORDED MAY 14, 2002 AS INSTRUMENT NO. 2002-0404592, IN THE
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
200152.7
Attachment No.1
June 13,2005