HomeMy WebLinkAbout09 FAMILY PROMISE OF ORANGE COUNTY DDA - 1941 EL CAMINO REALr1't� O
F AGENDA REPORT
MEETING DATE: FEBRUARY 18, 2020
Agenda Item 9
Reviewed:
City Manager
Finance Director
TO: MATTHEW S. WEST, CITY MANAGER & HOUSING AUTHORITY
EXECUTIVE DIRECTOR
FROM: TUSTIN HOUSING AUTHORITY
SUBJECT: DISPOSITION AND DEVELOPMENT AGREEMENT WITH
FAMILY PROMISE OF ORANGE COUNTY, INC. FOR 1941 EL
CAMINO REAL
SUMMARY
Request for approval to enter into a Disposition and Development Agreement (DDA) between
the City of Tustin (City), Tustin Housing Authority (Housing Authority) and Family Promise of
Orange County, Inc. (Family Promise) for 1941 EI Camino Real. In partnership with HomeAid
Orange County, Family Promise will build seven (7) units to provide transitional housing for
homeless families.
RECOMMENDATION
Authorize the City Manager and Housing Authority Executive Director to execute the DDA
between the City, Housing Authority and Family Promise of Orange County, Inc., subject to any
non -substantive modifications as may be deemed necessary and/or recommended by the City
Attorney and approved by the City Manager/Executive Director.
FISCAL IMPACT
Upon fulfillment of the DDA terms, the City will be conveying the property to Family Promise
under the terms of a 30 -year forgivable Promissory Note. While 1941 EI Camino Real carries a
value of $320,000 on the City's financial statements, the City will order an appraisal three
months prior to conveyance to obtain an opinion of value for the property. The value of the
Promissory Note will be based on the appraisal.
CORRELATION TO THE STRATEGIC PLAN
The DDA fosters a strong relationship with Family Promise of Orange County, Inc. and
HomeAid Orange County and provides leadership within the region by creating transitional
housing opportunities for homeless families, aligning with Goal D: Strong Community and
Regional Relationships.
Agenda Report
February 18, 2020
Page 2
BACKGROUND
In November 2018, the City entered into an Exclusive Negotiation Agreement with Family
Promise of Orange County (Family Promise) for the disposition of City property at 1941 EI
Camino Real in order to develop transitional housing for homeless families. During the
negotiations, Family Promise secured a commitment from HomeAid Orange County to partner
in fundraising and building the transitional housing. Family Promise's initial concept of building
a large house with 7 to 9 bedrooms for families has evolved to the House of Ruth, a 7 -unit
apartment development with a resource center and office.
The House of Ruth will be comprised of the following units: four (4) 2 -bedroom units; two (2) 3 -
bedroom units; and one (1) 1 -bedroom unit, along with a resource center/office and laundry
room. Family Promise will provide families with short-term transitional housing of three to six
months while providing weekly case management. As part of the case management, families
will receive career & workforce development, individual and family therapy, budgeting, financial
literacy and credit repair services. In addition, families will be connected to the County of
Orange's Coordinated Entry system and will receive referrals to other social services.
As Family Promise moves homeless families into the House of Ruth, preference will be given to
families with ties to Tustin. Family Promise is required to expend fifteen (15) days trying to fill a
unit with a family with ties to Tustin prior to moving a family without ties to Tustin (non -Tustin)
into the House of Ruth. If there is one vacant unit when all the other units are filled with non -
Tustin families, Family Promise will expend thirty (30) days trying to fill the unit with a Tustin
family prior to filling it with a non -Tustin family. Finally, if every unit is filled with non -Tustin
families at the time Tustin families become homeless, Family Promise has committed to give
preference to these families at their other transitional housing units within their network.
Typically, when the City enters into a DDA with a Developer, the Developer has lined up the
financing and is receiving simultaneous approval for entitlements and their site plan. Family
Promise cannot begin raising funds until they have an executed agreement to show to their
prospective donors. In order to expedite the project and allow the Operator to begin raising
funds for the project, staff are recommending the Council approve the attached DDA.
Upon DDA approval, the Schedule of Performance (Schedule) is eighteen months and it
outlines the time frame in which Family Promise will be raising construction and operational
funds, submitting plans, seeking entitlements and site plan approvals, submitting an updated
construction budget, submitting construction drawings, and becoming permit ready. The
Schedule also requires Family Promise to provide quarterly reports to staff on the status of their
fundraising. Once Family Promise has demonstrated their financial capacity to both construct
and operate the House of Ruth, and have met the other conditions of the Schedule, the property
will be conveyed and construction is to commence within two months. Family Promise will
complete construction within twenty-four months.
Agenda Report
February 18, 2020
Page 3
The DDA and the disposition of the Site for affordable housing is categorically exempt from the
California Environmental Quality Act pursuant to Title 14, California Code of Regulations,
sections 15332.
"Joh Buchanan Jerry Craig
Ditdctor of Economic Development Deputy Direc r of usirie s Services &
Tustin Housing Authority Housing r
Tusti"ousing Authority
Attachment: Disposition and Development Agreement By and Between the City
of Tustin/Tustin Housing Authority and Family Promise of Orange
County, Inc.
DISPOSITION AND DEVELOPMENT
AGREEMENT
BY AND BETWEEN
CITY OF TUSTIN / TUSTIN HOUSING
AUTHORITY
AND
FAMILY PROMISE OF ORANGE COUNTY, INC.
[SITE: 1941 El Camino Real, Tustin, CA 92780]
1470132.1
TABLE OF CONTENTS
Page
1. DEFINITIONS....................................................................................................................2
2. DISPOSITION OF THE SITE............................................................................................
6
2.1
Conveyance of the Site............................................................................................
6
2.2
Fundraising/Financing.............................................................................................6
2.3
Agreement to Purchase and Sell; Purchase Price....................................................6
2.4
Opening of Escrow..................................................................................................7
2.5
Costs of Escrow.......................................................................................................
7
2.6
Escrow Instructions.................................................................................................7
2.7
Authority of Escrow Agent.....................................................................................
7
2.8
Closing Procedure...................................................................................................
8
2.9
Outside Closing Date...............................................................................................9
2.10
Termination.............................................................................................................9
2.11
Review of Title........................................................................................................9
2.12
Title Insurance.......................................................................................................10
2.13
Deliver of Site "As Is, With All Faults"................................................................11
2.14
Hazardous Materials Indemnification and Release...............................................11
3. CONDITIONS TO CLOSING AND REPRESENTATIONS WARRANTIES ...............12
3.1
City's Conditions Precedent to Closing................................................................12
3.2
Operator's Conditions of Closing..........................................................................14
3.3
City's Representations and Warranties.................................................................14
3.4
Operator's Representations and Warranties..........................................................15
3.5
Continuing Representations and Warranties.........................................................16
4. SCOPE OF DEVELOPMENT AND ASSOCIATED PROVISIONS..............................16
4.1
Scope of Project.....................................................................................................16
4.2
Design Review......................................................................................................17
4.3
Land Use Approvals..............................................................................................17
4.4
Schedule of Performance; Progress Reports.........................................................18
4.5
Cost of Construction..............................................................................................18
4.6
Insurance...............................................................................................................19
4.7
Waiver of Subrogation..........................................................................................19
4.8
Scope of Insurance.................................................................................................20
4.9
Obligation to Repair and Restore Damage Due to Casualty.................................20
4.10
Operator's Indemnity............................................................................................20
4.11
Rights of Access....................................................................................................
21
4.12
Compliance with Laws..........................................................................................22
4.13
Nondiscrimination in Employment.......................................................................22
4.14
Taxes and Assessments.........................................................................................23
4.15
Liens......................................................................................................................23
4.16
Certificates of Completion and Project Covenant Period.....................................23
4.17
Further Assurances................................................................................................23
4.18
Financing of the Project........................................................................................23
4.19
Assignment of Project Plans..................................................................................26
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1470132.1
5. COVENANTS AND RESTRICTIONS............................................................................26
5.1
Site and Housing Requirements............................................................................26
5.2
Site and Housing Requirements............................................................................26
5.3
Maintenance of Site...............................................................................................27
5.4
Nondiscrimination Covenants...............................................................................27
5.5
Enforcement of Covenants by the City.................................................................28
6. DEFAULTS, REMEDIES, AND TERMINATION.........................................................28
6.2
Institution of Legal Actions...................................................................................29
6.3
Termination by the Operator Prior to Conveyance...............................................29
6.4
Termination by the City Prior to Conveyance.......................................................29
6.5
Right of Reversion, and Repurchase of Site Upon Default after Conveyance......
30
6.6
Rights and Remedies Are Cumulative..................................................................32
6.7
Inaction Not a Waiver of Default..........................................................................
32
6.8
Forced Delay; Extension of Times of Performance..............................................
32
7. TRANSFERS OR ASSIGNMENTS.................................................................................32
7.1
Prohibition on Transfers or Assignments..............................................................32
7.2
Permitted Transfers...............................................................................................33
7.3
Assignment by City/Authority..............................................................................34
S. MISCELLANEOUS..........................................................................................................34
8.1
Obligations Unconditional and Independent.........................................................34
8.2
Notices...................................................................................................................34
8.3
No Third-Party Beneficiaries................................................................................35
8.4
Counterparts..........................................................................................................35
8.5
Venue.....................................................................................................................35
8.6
Severability of Provisions.....................................................................................
36
8.7
Headings................................................................................................................36
8.8
Conflicts................................................................................................................36
8.9
Interpretation.........................................................................................................
36
8.10
No Waiver.............................................................................................................36
8.11
Modifications.........................................................................................................36
8.12
Legal Advice.........................................................................................................36
8.13
Time of the Essence..............................................................................................
37
8.14
Warranty against Payment of Consideration.........................................................
37
8.15
Successors and Assigns.........................................................................................37
8.16
City Approvals and Actions..................................................................................
37
8.17
Real Estate Brokers...............................................................................................37
8.18
Attorneys' Fees......................................................................................................37
8.19
Applicable Law.....................................................................................................37
8.20
Non-Liability of Officials and Employees of the City..........................................
38
8.21
Relationship Between the City and Operator........................................................38
8.22
Computation of Time............................................................................................38
8.23
Cooperation...........................................................................................................38
8.24
Entire Agreement..................................................................................................38
8.25
Not a Development Agreement.............................................................................38
8.26
Memorandum of Agreement.................................................................................
39
ii
1470132.1
ATTACHMENT NO. 1
ATTACHMENT NO. 2
ATTACHMENT NO. 3
ATTACHMENT NO. 4
ATTACHMENT NO. 5
ATTACHMENTS
Legal Description
Site Map
Grant Deed
Promissory Note
Deed of Trust
ATTACHMENT NO. 6 Certificate of Completion
ATTACHMENT NO. 7 Declaration of Covenants and Restrictions
ATTACHMENT NO. 8
ATTACHMENT NO. 9
ATTACHMENT NO. 10
ATTACHMENT NO. 11
ATTACHMENT NO. 12
ATTACHMENT NO. 13
ATTACHMENT NO. 14
1470132.1
Schedule of Performance
Hazardous Materials Definition
Memorandum of Disposition and Development Agreement
Certificate of Project Covenant Period
Preliminary Site Plan
Cost Breakdown for Project
Placement Criteria
U
DISPOSITION AND DEVELOPMENT AGREEMENT
FOR SHORT-TERM TRANSITIONAL HOUSING
(1941 El Camino Real)
This DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") for
short-term transitional housing is entered into for reference purposes only this day of
, 2020, by and between the CITY OF TUSTIN, a municipal corporation ("Tustin"),
the TUSTIN HOUSING AUTHORITY, a local housing authority ("Authority"), and
FAMILY PROMISE OF ORANGE COUNTY, INC., a California non-profit corporation
("Operator").
RECITALS
A. The trend of homelessness in Orange County is currently on the rise, which for
families is often due to the high cost of housing in the County, and Tustin, its residents and the
community at large, have been and will continue to be directly impacted by issues created by a
growing homeless population and thus, for the health, safety, and welfare of the community,
Tustin continually seeks solutions to mitigate the many and varied issues raised by homeless
families and the high cost of housing within Tustin.
B. The Authority is Tustin's local housing authority organized and acting pursuant
to the Housing Authorities Law, Part 2 of Division 24 of the California Health and Safety Code,
§§ 34200 et seq., the purpose of which is to provide safe and sanitary housing opportunities for
Tustin residents.
C. Tustin owns certain vacant real property at 1941 El Camino Real, City of Tustin,
County of Orange, designated as Assessor's Parcel Number 500-071-12, consisting of
approximately 16,550 square feet (the "Site"). A legal description and map of the Site are
attached hereto and incorporated herein, respectively, as Attachment No. 1 and Attachment No.
2.
D. Tustin and the Authority (hereinafter, collectively and individually, the "City")
are authorized to enter into agreements for the development, improvement, or preservation of
short-term transitional housing.
E. Operator has made a proposal to develop the Site for short-term transitional
housing for qualified families with children, with preference given to those with ties to Tustin
and Tustin will contribute the Site for development under the terms and conditions set forth in
this Agreement.
F. Operator has proposed to develop the Site in conjunction with Shelter Providers
of Orange County, Inc., dba HomeAid Orange County, Inc. ("HomeAid"), a developer
experienced in the management and supervision of construction, development, and operation of
short term transitional housing in Southern California.
G. To further the goal of developing and transferring the Site, the City and Operator
entered into an "Exclusive Negotiating Agreement," dated as of November 6, 2018, which
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1470132.1
provides for the parties to negotiate towards a Disposition and Development Agreement and a
Development Agreement, and the parties having elected to proceed with this Disposition and
Development Agreement before the Development Agreement to facilitate Operator's raising of
funds.
H. The intent of this Agreement is to provide for the transfer of the Site to Operator
subject to a promissory note and an unsubordinated first deed of trust, where the promissory
note, which may not be pre -paid, shall be forgiven over a 30 -year period, but there shall be
imposed upon Operator mandatory compliance over 55 -year period with a Declaration of
Covenants and Restrictions ("Declaration of Covenants").
I. The Declaration of Covenants shall require, among other things, preference for
those using the short-term transitional housing having direct ties to the City; the Project (as
defined herein) shall not be used as an emergency shelter for the homeless; one member of each
family residing at the Proj ect shall either have regular and continuing employment or be actively
seeking employment; each family shall pay a program fee, which may be a percentage of their
income each month, but in no event shall the program fee and any rent, if charged for a unit,
combine to exceed thirty percent (30%) of the Qualified Family's Gross Income as each is
defined in the Declaration of Covenants and Restrictions. Each Qualified Family will be
required to place twenty percent (20%) of their disposable income into a savings account; and
Operator shall provide case management, computer and Internet services, counseling, financial
literacy, educational assessment, and life skill classes to the participant families. The
Declaration of Covenants imposed upon Operator are material to this Agreement and but for
these undertakings by Operator, the City would not have entered into this Agreement.
J. The City's transfer of the Site to Operator and the development of the Project,
including the Improvements (as defined herein), as provided for in this Agreement, is in the
vital and best interest of the City and the health, safety and welfare of its residents, and in accord
with the public purposes and provisions of applicable state and local laws.
K. This Agreement and the disposition of the Site and development of the Project
for short-term transitional housing is exempt from the California Environmental Quality Act
pursuant to Title 14, California Code of Regulations, sections 15194 and 15195.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and
conditions herein contained, the Parties hereto agree as follows:
i, DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following meanings:
"Actual Knowledge" is defined in Section 3.3 of this Agreement.
"Agreement" means this Disposition and Development Agreement between the City
and Operator, including the Attachments to this Agreement, which are all made part
of and incorporated into this Agreement.
2
1470132.1
"Certificate of Completion" means the document which evidences the Operator's
satisfactory completion of the Improvements, including the issuance of a Certificate
of Occupancy by the City, and other conditions set forth in this Agreement, which
shall be in the form of Attachment No. 6 to this Agreement.
"Certificate of Project Covenant Period" means the Certificate of Project Covenant
Period substantially in the form of Attachment No. 11 hereto, which shall set forth and
establish the Covenant Period.
"City" means, individually and collectively, as applicable the City of Tustin, a
municipal corporation ("Tustin") and the Tustin Housing Authority, a local housing
authority ("Authority").
"City Indemnitees" is defined in Section 2.13 of this Agreement.
"City's Conditions Precedent" is defined in Section 3.1 of this Agreement.
"Closing" is defined in Section 2.9 of this Agreement and means the Closing for the
City's Conveyance of the Site to the Operator.
"Closing Date" is defined in Section 2.9 of this Agreement and means the date the Grant
Deed (Attachment No. 3) is recorded.
"Condition of Title" is defined in Section 2.11 of this Agreement
"Conditions Precedent" means those conditions precedent for the Closing of both the
City and Operator set forth in Sections 3.1 and 3.2 of this Agreement.
"Conveyance" means the conveyance of the Site by recordation of the Grant Deed.
"Covenant Period" means the period commencing upon the date the Certificate of
Occupancy is issued by the City for the Project and ending fifty-five (55) years
thereafter, which covenant period shall be evidenced and conclusively established by
the Certificate of Project Covenant Period (Attachment No. 11).
"Date of Agreement" means the date that all signatories have signed and executed this
Agreement.
"Declaration of Covenants" means the Declaration of Covenants and Restrictions,
which is Attachment No. 7 to this Agreement to be recorded as an encumbrance to the
Site running with the land.
"Deed of Trust" means the Deed of Trust and Assignment of Rents, substantially in the
form of Attachment No. 5 hereto, which is incorporated herein, which shall be secured
by the Promissory Note.
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1470132.1
"Default" means the failure of a Party to perform any action or covenant required within
the time period provided by this Agreement, following any notice and opportunity to
cure allowed, and as further defined in Section 6.1 of this Agreement.
"Director" means the Executive Director of the Authority, or his or her designee.
"Escrow" is defined in Section 2.4 of this Agreement.
"Escrow Agent" is defined in Section 2.4 of this Agreement.
"Grant Deed" means a fully executed and recordable grant deed in substantially the
form of Attachment No. 3 to this Agreement.
"Governmental Requirements" means all laws, ordinances, statutes, codes, rules,
regulations, orders and decrees of the United States, the State, the County of Orange,
the City, and any other political subdivision in which the Site is located, and of any other
political subdivision, agency or instrumentality exercising jurisdiction over the City, the
Operator, or the Site.
"Hazardous Materials" means any flammable items, explosives, radioactive materials,
hazardous or toxic substances, material or waste or related materials, including any
substances defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials" or "toxic substances" now or subsequently
regulated under any applicable federal, State or local laws or regulations, including
without limitation petroleum-based products, paints, solvents, lead, cyanide, DDT,
printing inks, acids, pesticides, ammonia compounds and other chemical products,
asbestos, PCBs and similar compounds, and including any different products and
materials which are subsequently found to have adverse effects on the environment or
the health and safety of persons, including, but limited to those materials, and substances
defined in Attachment No. 9, which is incorporated herein.
"HomeAid" means Shelter Providers of Orange County, Inc., dba HomeAid Orange
County, Inc.
"Improvements" means all the improvements built or placed on the Site required under
and by this Agreement for the development of the Project, including the Development
Agreement, or any future such improvements to the Project.
"Memorandum of Disposition and Development Agreement" means Memorandum of
Disposition and Development Agreement substantially in the form of Attachment No.
10 to this Agreement.
"Notice" means a notice in the form prescribed by Section 8.2 of this Agreement.
"Operator" means Family Promise of Orange County, Inc., a California non-profit
corporation, and any authorized transferee or assignee.
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1470132.1
"Operator's Conditions Precedent" is defined in Section 3.2 of this Agreement.
"Outside Closing Date" means the date on which the Closing shall occur, as defined
and set forth in Section 2.9 of this Agreement.
"Party" means either the City or Operator, as applicable, and "Parties" means
collectively the City and Operator, including their respective permitted successors and
assigns.
"Person" means an individual, partnership, limited partnership, trust, estate, association,
corporation, limited liability company, joint venture, firm, joint stock company,
unincorporated association, Governmental Authority, governmental agency or other entity,
domestic or foreign.
"Project" means the Site and all associated Improvements built upon the Site that are
required by this Agreement so that Operator may operate the Site in conformity with
this Agreement, Deed of Trust, and Declaration of Covenants, including, but not limited
to, any related offsite improvements, all recreational and common area improvements,
any resource center, residential units, landscaping, parking and related improvements,
as the same may from time to time exist on the Site.
"Project Documents" means, collectively and individually, this Agreement, Declaration
of Covenants, Deed of Trust, Promissory Note, all other Attachments to this Agreement,
and any other agreement, document, or instrument that are required in connection with
the execution of this Agreement, or from time to time to effectuate the purposes of this
Agreement, including the Project Plans.
"Project Plans" is defined in Section 4.19 of this Agreement.
"Promissory Note" means the Promissory Note substantially in the form of Attachment
No. 4 to this Agreement.
"Purchase Price" is defined in Section 2.3 of this Agreement.
"Schedule of Performance" means the Schedule of Performance attached hereto as
Attachment No. 8, setting out the dates and time periods by which certain conditions
and obligations set forth in this Agreement must be accomplished.
"Site" means that real property legally described on Attachment 1 and depicted on
Attachment 2.
"State" means the State of California.
"Title Company" is defined in Section 2.11 of this Agreement.
"Title Policy" is defined in Section 2.12 of this Agreement.
"Title Report" means the preliminary title report, as described in Section 2.11 hereof.
1470132.1
"Year" means the period commencing as of the Certificate of Completion and ending
each succeeding calendar year thereafter during the Covenant Period.
2. DISPOSITION OF THE SITE
2.1 Conveyance of the Site.
Subject to the satisfaction of those conditions set forth in Section 3 of this Agreement,
including all the City's Conditions Precedent, the City is prepared to convey the Site to the
Operator in consideration of the performance by Operator of all terms and conditions of this
Agreement. On terms and conditions as may be further detailed and provided for herein, the
City shall convey to Operator title to the Site "AS IS, WITH ALL FAULTS," free and clear of
any and all encumbrances, liens, leases, easements, and other exceptions, but for those approved
Exceptions as defined and set forth in Section 2.11 of this Agreement.
2.2 Fundraising/Financing.
The Parties acknowledge that Operator does not currently have sufficient funds on hand
to pay the costs for developing the Site with the Improvements or operating the Project. As
material consideration for the City entering into this Agreement, the Operator shall immediately
initiate fundraising and financing efforts, and eventually establish to the sole satisfaction of the
Director, that it has such funds to construct the Improvements and operate the Project on an on-
going basis for the Covenant Period.
Within the time set forth in the Schedule of Performance (Attachment No. 8), Operator
shall provide Director evidence of financing in accordance with Section 4.18 hereof,
establishing that it has the financing to construct the Improvements and provide for the ongoing
operations of the Project. If Operator has not provided such written evidence of financing to the
sole satisfaction of the Director within the time set forth in the Schedule of Performance, then
this Agreement shall, unless extended by mutual agreement of the Parties, be terminated by its
own terms and no further action is required by either Party, except for such provisions that shall
survive this Agreement.
2.3 Agreement to Purchase and Sell; Purchase Price.
Operator agrees to purchase the Site from the City and the City agrees to sell the Site to
Operator, in accordance with and subject to all the terms, covenants, and conditions of this
Agreement. The Purchase Price for the Site shall be set equal to the fair market value of the Site
as determined by an appraisal performed by a state -certified appraiser selected by the City
("Purchase Price"), which appraisal shall be completed by the City pursuant to the Schedule of
Performance attached hereto.
Operator shall deposit into Escrow the fully executed original of the Promissory Note,
substantially in the form of Attachment No. 4 hereto, for the Purchase Price. Operator's
obligation to pay the amounts required and/or perform services pursuant to the Promissory Note
shall be secured by the recordation of an unsubordinated first Deed of Trust, substantially in the
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1470132.1
form of Attachment No. 5 hereto. The Promissory Note's principal amount shall accrue interest
at the rate of three percent (3%) per annum, compounded annually, and become due and payable
at the Maturity Date as defined in the Note. However, the Promissory Note shall be forgiven
by the City at a rate of 1/30 per Year on the accrued principal, and the interest thereon on such
1/30, until the end of the Maturity Date if and only if Operator has been in substantial
compliance with the Project Documents for the entire Year for each Year to be forgiven,
including, but not limited to, the Declaration of Covenants. Unless an amount remains due and
owing under the Promissory Note at the end of the Maturity Date, the City shall cancel the
Promissory Note and the City shall record a full reconveyance for the Site to Operator, but such
reconveyance shall in no manner be deemed to alter, amend, or effect in any manner the
Declaration of Covenants.
2.4 Opening of Escrow.
No later than sixty (60) days before the Outside Closing Date, or as the Parties may
otherwise mutually agree, the City shall open escrow ("Escrow") with First American Title
Insurance Company in its Orange County office or with another escrow company mutually
satisfactory to both Parties (the "Escrow Agent").
2.5 Costs of Escrow.
The City and the Operator shall each pay its respective share of the premium for the
Title Policy as set forth in Section 2.12 hereof, the City shall pay the documentary transfer taxes
due with respect to the Conveyance of the Site, if any, and the Parties shall each pay one-half
of all other usual fees, charges, and costs which arise from Escrow.
2.6 Escrow Instructions.
This Agreement constitutes the joint escrow instructions of the City and Operator, and
Escrow Agent to whom these instructions are delivered is hereby empowered to act under this
Agreement. The Parties hereto agree to execute and deliver such documents (in recordable form
as required), pay or deposit such funds, do all such acts consistent with their respective
obligations hereunder as may be reasonably necessary for Closing in the shortest possible time
and in any event, on or before the Outside Closing Date.
If in the opinion of Escrow Agent or either Party it is necessary or convenient to
accomplish the Closing of this transaction, such Party may require that the Parties sign
supplemental escrow instructions; provided that if there is any inconsistency between this
Agreement and the supplemental escrow instructions, then the provisions of this Agreement
shall control. The Parties agree to execute such other and further documents as may be
reasonably necessary, helpful, or appropriate to effectuate the provisions of this Agreement and
accomplish the Closing. Escrow Agent is instructed to release the City's and Operator's escrow
closing statements to both Parties.
2.7 Authority of Escrow Agent.
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1470132.1
Escrow Agent is authorized to, and shall:
(a) Pay and charge the City and Operator for their respective shares of the
premium of the Title Policies, any endorsements thereto and any amount necessary to
place title in the Condition of Title as provided for in this Agreement.
(b) Pay and charge the City and Operator each for one-half of any
escrow fees, charges, and costs payable in accordance with this Agreement.
(c) Disburse funds, deliver the Promissory Note to the City, and deliver
and record the Grant Deed, the Deed of Trust, Declaration of Covenants, and
record and deliver all other Attachments to this Agreement.
(d) Do such other actions as necessary, including, without limitation,
obtaining the Title Policy, to fulfill its obligations set forth in this Agreement and to
close the transaction contemplated hereby.
(e) Within the discretion of Escrow Agent, direct the City and Operator to
execute and deliver any instrument, affidavit, and statement, and to perform any act
reasonably necessary to comply with the provisions of FIRPTA and any similar state
act and regulation promulgated thereunder.
(f) Prepare and file with all appropriate governmental or taxing authorities
a uniform settlement statement, closing statement, tax withholding forms including an
IRS 1099-5 form, and be responsible for withholding taxes, if any such forms are
provided for or required by law.
2.8 Closing Procedure.
After satisfaction of the Conditions Precedent to Closing set forth in Section 3 hereof,
including after Operator has provided the Director with evidence of financing in accordance
with Section 4.18 and has obtained all land use approvals for the Improvements and the Project,
the City and Operator shall cause the "Closing" for the Site by the recording of the following
documents, in the following order:
(a) Record the Grant Deed;
(b) Record the Deed of Trust;
(c) Record the Declaration of Covenants;
(d) Deliver to the City the Promissory Note;
(e) Deliver and record any loan or financing documents as may be
requested by the Operator or its construction lender (if applicable) and approved
by the City;
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(f) Instruct the Title Company to deliver the owner's Title Policy to the
Operator;
(g) Deliver the FIR -PTA Certificate, if any, to the Operator;
(h) Forward to both the Operator and the City a separate accounting of all
funds received and disbursed for each Party and copies of all executed and recorded or
filed documents deposited into Escrow, with such recording and filing date and
information endorsed thereon; and
(i) Deliver, prepare, file and/or record such other instruments, if any, as
shall be approved by Director as necessary or convenient to effectuate and implement
the transfer of the Site, or development of the Improvements.
2.9 Outside Closing Date.
In no event, however, shall the Closing occur later than eighteen months (18) after the
Date of Agreement (the "Outside Closing Date"). The "Outside Closing Date," however, may
be extended in writing at the sole discretion of each Party for three (3) months upon Notice to
the other Party solely for the purpose of accomplish the events as listed in Section 2.8 (a) -(i)
herein. The "Closing" shall mean the time and day the latest of the following events to occur:
the recording with the County Recorder of the Grant Deed, Deed of Trust, or Declaration of
Covenants. The "Closing Date" shall mean the day on which the Closing occurs.
2.10 Termination.
If the Site is not in a condition for Closing on the Outside Closing Date, meaning that
each Party is ready, able and willing to meet their respective Conditions Precedent as set forth
in Section 3, then either Party which is not then in Default (and has not received Notice of a
potential Default hereunder which has not been cured) may, in writing give Notice to the Escrow
Agent, demanding the return of its money, documents, or property and termination of the
Escrow for the Site.
If either Party makes a written demand for the return of its money, documents, or
properties, the Escrow shall not terminate until ten (10) business days after Escrow Agent shall
have delivered copies of such demand to the other Party at its address shown in this Agreement.
If any objections are raised within this ten (10) day period by the receiving Party, Escrow Agent
is authorized to hold all funds, documents, and property until instructed by a court of competent
jurisdiction or by mutual written instructions of the Parties. Termination of the Escrow shall be
without prejudice as to whatever legal rights either Party may have against the other as set forth
in this Agreement. If no demands are made, the Escrow Agent shall proceed with the Closing
as soon as possible.
2.11 Review of Title.
Within the time set forth in the Schedule of Performance, the Operator shall cause Title
Insurance Company or another title company mutually agreeable to both Parties (the "Title
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Company"), to obtain and deliver to the City a preliminary title report (the "Title Report") with
respect to the title to the Site, together with legible copies of the documents underlying the
exceptions ("Exceptions") set forth in the Title Report.
The Operator shall have the sole and absolute right to approve or disapprove the
Exceptions; provided, however, that the Operator hereby approves the following Exceptions:
(a) the lien of any non -delinquent property taxes and assessments (to
be prorated as of the Closing Date);
(b) the provisions set forth in the Grant Deed, Deed of Trust, and the
Declaration of Covenants; and
(c) the approved title Exceptions and such other Exceptions to title
as may hereafter be mutually approved by the City and Operator.
Concurrently with the delivery of the Title Report to the City, Operator shall give written
Notice to the City and Escrow Agent of the Operator's approval or disapproval of any of such
Exceptions set forth in the Title Report, within its reasonable discretion and within the time
limits as set forth in the Schedule of Performance attached hereto. Operator's failure to provide
Notice of its approval of the Title Report within such time limit shall be deemed disapproval of
the Title Report. If the Operator delivers Notice to the City of its disapproval of any Exceptions
in the Title Report, the City shall have the right, but not the obligation, to elect to remove any
disapproved Exceptions within thirty (30) days after receiving written Notice of the Operator's
disapproval or to deliver Notice to the Operator providing assurances satisfactory to the
Operator within said time period that such Exception(s) will be removed on or before the
Closing.
If the City cannot or does not elect to remove any of the disapproved Exceptions within
the period allotted, the Operator shall have fifteen (15) days after the expiration of such thirty
(30) day period to either give the City written Notice that the Operator elects to proceed with
the purchase of the Site subject to the disapproved Exceptions or to give the City written Notice
that the Operator elects to terminate this Agreement and the Operator's failure to give timely
written Notice shall be deemed as an election to terminate this Agreement.
Fee simple merchantable title subject only to the Exceptions to title approved by the
Operator as provided herein shall hereinafter be referred to as the "Condition of Title." The
Operator shall have the right to approve or disapprove any further Exceptions reported by the
Title Company after the Operator has approved the Condition of Title for the Site, which are
not created by the Operator and such approval, shall be an additional Operator's Conditions
Precedent of Closing. The City shall not voluntarily create any new exceptions to title following
the Date of Agreement.
2.12 Title Insurance.
Concurrently with recordation of the Grant Deed conveying title to the Site, the Title
Company shall issue to the Operator, at the Operator's election, a CLTA, or an ALTA owner's
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policy of title insurance (the "Title Policy"), together with such endorsements as are reasonably
requested by the Operator, insuring that the title to the Site is vested in the Operator in the
Condition of Title approved by the Operator as provided in this Agreement. The Title Company
shall provide the City with a copy of the Title Policy. The City shall pay the portion of the
premium for the Title Policy equal to the cost of a CLTA standard policy of title insurance in
the amount of the Purchase Price, and the Operator shall pay for any additional costs thereof,
including the incremental additional cost of obtaining an ALTA policy, any endorsements to
the title policy, and the cost of any survey which is performed.
2.13 Deliver of Site "As Is, With All Faults".
Operator acknowledges that the City is unfamiliar with the condition of the Site and
agrees that the City is under no obligation hereunder to perform any tests, studies or other
investigation of the Site prior to the Closing. The City shall provide Operator with any
documentation that may be reasonably available to the Director relating to the Hazardous
Materials at the Site. The Parties acknowledge that Operator will be conducting due diligence
on the Site, including testing for Hazardous Materials, and Operator shall, therefore, provide
the City with any documentation relating to Hazardous Materials at the Site, including any
reports and investigations prepared as part of this Agreement.
The physical condition of the Site is and shall be delivered from City to Operator in an
"AS IS, WITH ALL FAULTS" condition, with no warranty expressed or implied by the City,
including without limitation, the presence of Hazardous Materials or the condition of the soil,
its geology, the presence of known or unknown seismic faults, or the suitability of the Site for
the Project intended hereunder. The Operator hereby waives, releases and discharges forever
the City, and its employees, officers, agents, volunteers and representatives (hereafter
collectively, the "City Indemnitees"), from all present and future claims, demands, suits, legal
and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees
and expenses, present and future, arising out of or in any way connected with the City, or the
Operator's use, maintenance, ownership or operation of the Site, any Hazardous Materials on
the Site, or the existence of Hazardous Materials in any state on the Site, however they came to
be placed there, except that arising out of the negligence or misconduct of the City Indemnitees.
The Operator acknowledges that it is aware of and familiar with the provisions of
Section 1542 of the California Civil Code which provides as follows:
"A general release does not extend to claims that the creditor or
releasing party does not know or suspect to exist in his or her favor at
the time of executing the release and that, if known by him or her, would
have materially affected his or her settlement with the debtor or released
party."
As such relates to this Section 2.13, the Operator hereby waives and relinquishes all
rights and benefits which it may have under Section 1542 of the California Civil Code.
2.14 Hazardous Materials Indemnification and Release.
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Following the Closing Date, Operator agrees to indemnify, defend and hold harmless
the City Indemnitees from and against any claim, action, suit, proceeding, damage, liability,
deficiency, fine, penalty, or punitive damage (including, without limitation, reasonable
attorneys' fees), resulting from, arising out of, or based upon (i) the release, use, generation,
discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the
transportation of any such Hazardous Materials to or from, the Site which occurs after the
Closing Date and is not caused by the City Indemnitees, or (ii) the violation, or alleged violation
by anyone other than the City Indemnitees of any statute, ordinance, order, rule, regulation,
permit, judgment or license relating to the use, generation, release, discharge, storage, disposal
or transportation of Hazardous Materials on, under, in or about, to or from, the Site which occurs
after the Closing Date and is not caused by the City Indemnitees. At the request of the Operator,
the City and Authority shall cooperate with and assist the Operator in its defense of any such
claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive
damage, or expense; provided that the City and Authority shall not be obligated to incur any
expense in connection with such cooperation or assistance.
3. CONDITIONS TO CLOSING AND REPRESENTATIONS WARRANTIES
The Closing of the Conveyance of the Site is conditioned upon the satisfaction, or
written waiver by the benefited Party or Parties, in its or their sole and absolute discretion, of
the following terms and conditions within the times designated below:
3.1 City's Conditions Precedent to Closing.
The City's obligation to proceed with the Closing of the Conveyance of the Site is
subject to the fulfillment or waiver by the City of each and all of the conditions precedent (a)
through 0), inclusive, described below (the "City's Conditions Precedent"), which are solely
for the benefit of the City, and which shall be fulfilled or waived by the time periods provided
for herein:
(a) No Default. At the Closing, the Operator shall not be in material Default
in any of its obligations set forth in this Agreement and all representations and
warranties of Operator contained herein shall be true and correct in all material respects.
(b) Execution of Documents. The Operator shall have executed the Grant
Deed, the Promissory Note, the Deed of Trust, and the Declaration of Covenants, and
any other documents required to be executed by the Operator hereunder, and have
delivered such documents into Escrow.
(c) Evidence of Financing. Within the time set forth in the Schedule of
Performance, Operator shall have provided written proof acceptable to the Director that
the Operator has sufficient funds and/or has obtained a loan or financing, subject to
customary conditions for both the construction of the Improvements and on-going
operation of the Project and the Director, in his or her sole discretion, has approved in
writing at the Closing such evidence of financing as outlined under Sections 2.2 and
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4.18 of this Agreement. In the event Operator obtains a loan or financing for the
construction of the Improvements, such construction loan or financing for the
Improvements shall be ready to close, and shall be immediately available for use in
constructing the Improvements. On the Closing Date, Operator represents and warrants
in writing that the financing plan and information presented and as approved by the
Director has not materially changed in any manner, form, or amount.
(d) Payment of Funds. Prior to the Closing of Escrow, the Operator shall
have deposited into Escrow all costs of Closing that are the Operator's responsibility in
accordance with this Agreement.
(e) Land Use Approvals. The Operator shall have received all land use
approvals, permits and other entitlements, including a Development Agreement, that are
required for the Project and the Improvements on the Site pursuant to this Agreement
and there shall be no litigation pending which challenges such land use approvals,
permits or other entitlements, or the validity of this Agreement.
(f) Insurance. The Director shall have received satisfactory insurance
certificates and endorsements that all insurance required by Section 4.6 is in full force
and effect.
(g) Performance and Completion Bonds. Operator shall obtain performance
and completion bonds to the satisfaction of the Director to ensure performance and
completion of all Improvements required under this Agreement. All bonds shall be
issued by good and solvent sureties qualified to do business in California and shall have
a rating of A or better in the most recent edition of Best's Key Rating Guide.
(h) Planning Commission Approval. The City's Planning Commission shall
have made a finding that the disposition of the Site is in conformance with the City's
General Plan in accordance with Government Code section 65402.
(i) All representations and warranties made, or documents submitted by
Operator pursuant to this Agreement required for Closing are true and correct to the best
of Operator's knowledge as of the Closing.
0) Operator represents and warrants as of Closing that (i) it is in good active
standing under the laws of the State of California and in compliance with any and all
applicable governmental laws, rules and regulations under federal law and the State of
California; (ii) Operator has all the requisite power and authority to proceed with the
Closing and those persons executing any documents have the legal power, right and
actual authority to bind Operator to the terms and conditions in this Agreement; (iii) the
Estimated Development Costs accurately sets forth the costs of construction of the
Project; (iv) Operator continues to have the necessary expertise, experience and
qualifications to operate the Project; (v) the consummation the transactions provided
herein will not violate any provision of law, any order of any court or other government
entity or conflict or result in the breach of any terms, conditions, or provisions thereof,
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or constitute a default under any bond, note or other evidence of indebtedness or any
contract, indenture, mortgage, deed of trust, lease, partnership agreement, or other
agreements, and (vi) Operator has the equity capital to complete the construction of the
Project and there are no contingent obligations, or any legal proceedings pending or
threatened that may materially affect its ability to do so.
(k) Operator shall have obtained the requisite insurance as required under
Section 4.6 of this Agreement, which shall be in full force and effective as of the Closing
Date.
All conditions set forth in this Section 3.1 are for the City's benefit only and the Director
may waive all or any part of such rights by written Notice to Operator. If the Director shall,
within the applicable periods set forth herein, disapprove of any of the items which are subject
to the Director's approval, or if any of the conditions set forth in this Agreement are not met
within the times called for including those deadlines set forth in Schedule of Performance, the
City may thereafter terminate this Agreement without any further liability on the part of the
City by giving n Notice of termination to the Operator.
3.2 Operator's Conditions of Closing.
Operator's obligation to proceed with the purchase of the Site is subject to the fulfillment
or waiver by Operator of each and all of the conditions precedent (a) through (e), inclusive,
described below (the "Operator's Conditions Precedent"), which are solely for the benefit of
Operator, and which shall be fulfilled or waived by the time periods provided for herein:
(a) No Default. At the Closing, the City shall not be in material Default in
any of its obligations set forth in this Agreement and all representations and warranties
of the City contained herein shall be true and correct in all material respects.
(b) Execution of Documents. The City shall have executed the Grant Deed
and Declaration of Covenants for the Site and Project, and any other documents required
to be executed by the City hereunder, and has delivered such documents into Escrow.
(c) Land Use Approvals. The Operator shall have received all land use
approvals, permits and other entitlements that are required for the Project and the
Improvements on the Site pursuant to this Agreement and there shall be no litigation
pending which challenges such land use approvals, permits or other entitlements, or the
validity of this Agreement.
(d) Condition of Site. Operator shall have approved the physical condition of
the Site pursuant to Section 2.13 of this Agreement.
(e) Title Policy. Operator shall have approved the Condition of Title and The
Title Company is unconditionally committed to issue to Operator an owner's Title
Policy for the Site in accordance with this Agreement.
3.3 City's Representations and Warranties.
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The City represents and warrants to the Operator as follows:
(a) Authority to Perform. Tustin is a public body, corporate and politic, and
has full right, power and lawful authority to convey the Site as provided herein, and the
execution, performance and delivery of this Agreement by the City has been fully
authorized by all requisite actions on the part of the City.
(b) FIRPTA. The City is not a "foreign person" within the parameters of
FIRPTA or any similar state statute, or is exempt from the provisions of FIRPTA or any
similar state statute, or the City has complied and will comply with all the requirements
under FIRPTA or any similar state statute.
(c) No Conflict. The City's execution, delivery and performance of its
obligations set forth in this Agreement will not constitute a default or a breach under
any contract, agreement or order to which the City is a party or by which it is bound.
(d) Condition of the Site. To its Actual Knowledge, the City is not aware of
and neither the City has received any notice or communication from any government
agency having jurisdiction over the Site notifying the City of the presence of surface or
subsurface zone Hazardous Materials in, on, or under the Site, or any portion thereof.
(e) No Litigation. To the City's Actual Knowledge, there is no threatened or
pending litigation against the City challenging the validity of this Agreement or any of
the actions proposed to be undertaken by the City or Operator pursuant to this
Agreement (including without limitation any of the existing or proposed land use
entitlements, permits or approvals).
"Actual Knowledge," as used in this Section 3.3, shall not impose a duty of
investigation, and shall be limited to the best knowledge of the City Manager and Director.
3.4 Operator's Representations and Warranties.
As a material inducement for City entering into this Agreement, Operator represents and
warrants to the City, in addition to those set forth in Section 3. 1, which are incorporated herein,
as follows:
(a) Experience. Operator is experienced in serving the homeless and low-
income families with housing and other associated services and HomeAid is an
experienced developer of short-term transitional housing and developments.
(b) Authority. Operator is a duly organized corporation formed within and in
good standing under the laws of the State of California. Operator has all requisite
authority to execute and perform its obligations under the Project Documents. The
execution and delivery by Operator of, and the performance by Operator of its
obligations under each Project Document has been authorized by all necessary action
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1470132.1
and do not and will not violate any provision of, or require any consent or approval not
heretofore obtained under, any articles of incorporation, by-laws or other governing
document applicable to Operator. As such, Operator has lawful authority to purchase
and accept Conveyance of the Site and undertake all obligations as provided herein and
the execution, performance and delivery of this Agreement.
(c) No Conflict. Operator's execution, delivery and performance of its
obligations set forth in this Agreement will not constitute a default or a breach under
any contract, agreement or order to which Operator is a party or by which it is bound.
(d) No Operator Bankruptcy. Family Promise is not the subject of a current
or threatened bankruptcy proceeding.
(e) Covenant Not to Transfer. Except for as provided by this Agreement, the
Operator has not encumbered, sold, assigned, leased, or otherwise transferred or
conveyed all or any part of the Site, unless Operator has first obtained the prior written
consent of the City, and such covenant shall continue until termination of this
Agreement and the Declaration of Covenants.
3.5 Continuing Representations and Warranties.
Until Closing has occurred, the City or Operator shall, upon learning of any fact or
condition which would cause any of the applicable warranties and representations in Sections
3.1, 3.3 and 3.4 of this Agreement not to be true as of the Closing, immediately give Notice to
the other Party of such fact or condition.
So long as the representations and warranties contained herein were true as of the Date
of Agreement, a change of facts or conditions that renders any such representation or warranty
to no longer be true at a later date shall not be deemed a Default by the Party hereunder if the
Party did not take any affirmative action to cause such representation or warranty to no longer
be true, and in such event the changed fact or condition shall constitute an Exception which the
other Party shall have a right to approve or disapprove if such Party determines in its sole and
absolute discretion that such Exception would have an effect on the value and/or development
of the Site or on-going operations of the Project. If a Party elects to proceed with the Closing
following a disclosure of such Exception(s), such representations and warranties contained
herein shall be deemed to have been made as of the Closing subject to such Exception(s). If,
following the disclosure of such Exception(s), a Party elects not to proceed with Closing then
this Agreement and the Escrow may be terminated by such Party as set forth in Section 6 hereof.
The representations and warranties set forth in this Section 3.5 shall survive the Closing.
4. SCOPE OF DEVELOPMENT AND ASSOCIATED PROVISIONS
4.1 Scope of Project.
Subject to all the other terms and conditions set forth in this Agreement, Operator shall
develop or cause the Project and its Improvements in accordance with the City's Municipal
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1470132.1
Code, and the plans, drawings, and documents submitted by the Operator and approved by the
City as set forth herein. The Project and Improvements shall generally consist of the following:
The Site shall be developed as a short-term transitional housing program consisting of up to
seven (7) units plus a community resource center to include office space for use by Family
Promise's case management staff.
4.2 Design Review.
(a) Operator Submissions. Before commencement of construction of the
Improvements or other works of improvement upon the Site, the Operator shall submit
to the City any plans and drawings (collectively, the "Design Project Drawings") which
may be required by the City with respect to any permits and entitlements required to
develop the Improvements. Operator, on or prior to the date set forth in the Schedule of
Performance, (Attachment No. 8) shall submit to the City such plans for the
Improvements as required by the City in order for Operator to obtain building permits
for the Improvements. Operator has submitted to the City a preliminary site plan for the
Project graphically depicting the overall plan for the development of the Project, a copy
of which is attached hereto as Attachment No 12.
(b) City Review and Approval. The City shall have all rights to review and
approve or disapprove all Design Project Drawings and other required submittals in
accordance with the City Municipal Code and for consistency with the surrounding
properties within the neighborhood, and nothing set forth in this Agreement shall be
construed to constitute the City's approval of any or all of the Design Project Drawings
or to limit or affect the City's review and right to approve, approve subject to conditions,
or disapprove Design Project Drawings, plans, drawings, applications, or submittals.
(c) Revisions. Any and all revisions required by the City and its inspectors
under the City Municipal Code and under other applicable laws and regulations shall be
included by the Operator in its Design Project Drawings and other required submittals
and shall be completed during the construction of the Improvements.
(d) Defects in Plans. The City shall not be responsible either to the Operator
or to third parties in any way for any defects in the Design Project Drawings, nor for
any structural or other defects in any work done according to the approved Design
Project Drawings, nor for any delays reasonably caused by the review and approval
processes established by this Section.
4.3 Land Use Approvals.
Before commencement of construction of the Improvements upon the Site, the Operator
shall, at its own expense, secure or cause to be secured any and all land use, development and
building entitlements, permits and approvals which may be required for the Improvements by
the City or any other governmental agency with jurisdiction over such construction or work.
The City shall cooperate with and assist the Operator in obtaining such entitlements, permits
and approvals, including, without limitation, signing any applications for such entitlements,
permits, and approvals as a co -applicant with the Operator; provided, however, that this
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1470132.1
Agreement does not constitute the granting of such entitlements, permits and approvals. The
Operator shall, without limitation, apply for and exercise commercially reasonable efforts to
secure the following, to the extent required by the City, and the Operator shall pay all normal
costs, charges and fees associated therewith:
(a) General Plan Amendment and zoning change for the Site, if required.
(b) Site Plan.
(c) All other discretionary entitlements, permits, and approvals required by
the City, County, and other governmental agencies with jurisdiction over the
Improvements.
(d) Any environmental studies and documents required pursuant to the
California Environmental Quality Act ("CEQA"), Public Resources Code Section
21000, et seq., with respect to any of the discretionary entitlements, permits, and
approvals referred to in clauses (a) -(e), inclusive.
(e) All ministerial entitlements, permits, and approvals that may be required,
including, without limitation and to the extent applicable, a final tract map (if required),
rough and precise grading permit(s), and approval of final building plans and permits,
utility plans, public works improvement plans for the perimeter offsite improvements
and any encroachment permits required for work to be performed within the public right-
of-way, and landscaping plans.
4.4 Schedule of Performance; Progress ss Reports.
The Operator shall submit all Design Project Drawings, commence and complete all
construction of the Improvements, and satisfy all other obligations and conditions of this
Agreement within the times established in this Agreement. Construction of the Improvements
shall be commenced on or before the time established in the Schedule of Performance. Once
construction is commenced, it shall continuously and diligently be pursued to completion and
shall not be abandoned for more than fifteen (15) days except when due to causes beyond the
control and without the fault of Operator. During the course of construction and prior to issuance
of the Certificate of Completion, Operator shall provide timely reports of the progress of
construction when requested by the Director. Operator shall complete construction of all of the
Improvements on the Site as specified in the Schedule of Performance, and no later than twenty-
four (24) months after the Closing Date. However, the 24 -month construction period may be
extended upon written agreement of both Parties, and in any event, Operator shall have the
unilateral right to extend the 24 -month period for six (6) months upon Notice to the City.
4.5 Cost of Construction.
The cost of planning, designing, developing, and constructing the Improvements to
completion shall be borne solely by the Operator. All fees imposed by any governmental entity
in connection with the Site, the Project, or Improvements shall be borne by Operator and shall
be paid when due by Operator.
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4.6 Insurance.
Without limiting the City's rights to indemnification and any insurance that may be
required by the Deed of Trust, unless otherwise stated, commencing as of the Closing Date and
continuing through the Covenant Period, Operator shall maintain at Operator's sole expense,
with insurers authorized to do business in the State of California with a current A.M. Best's
rating of no less than A-, VII and reasonably approved by the Director, the following policies
of insurance in form and substance reasonably satisfactory to the Director:
(a) Workers' Compensation Insurance. Workers' compensation insurance
and any other insurance required by law in connection with construction of the
Improvements, or during the Covenant Period, for all other work performed on the Site
or in connection with the ongoing operations of the Project.
(b) Builder's Risk Insurance. Upon commencement of construction of the
Improvements through execution of a Certificate of Completion, builder's risk -all risk
insurance covering 100% of the replacement cost of all Improvements (including offsite
and the materials) during the course of construction in the event of fire, lightning,
windstorm, vandalism, earthquake, malicious mischief and all other risks normally
covered by "all risk" coverage policies in the area where the Site is located (including
loss by flood if the Site is in an area designated as subject to the danger of flood).
(c) Fire/Hazard Insurance. Following execution of the Certificate of
Completion, fire and hazard "all risk" insurance covering 100% of the replacement cost
of the Improvements, including any code upgrades, in the event of fire, lightning,
windstorm, vandalism, malicious mischief and all other risks normally covered by "all
risk" coverage policies in the area where the Site is located (including loss by flood if
the Site is in an area designated as subject to the danger of flood).
(d) Liability Insurance. Public liability or comprehensive general liability
insurance written on an occurrence basis in amounts reasonably required by the Director
from time to time, and in the type of and in the amounts as follows: (a) comprehensive
general liability and personal injury with limits of at least One Million Dollars
($1,000,000); (b) comprehensive automobile liability, including owned, non -owned and
hired autos, with limits of at least Two Million Dollars ($2,000,000) combined single limit
per occurrence; and (c) Sexual Misconduct and Molestation Liability insurance in an
amount of not less than $5,000,000 per claim, which may be written on a claims made
basis.
(e) Other Insurance. All other insurance and in amounts as reasonably
required by the Director from time to time.
4.7 Waiver of Subro _ ag tion.
Operator hereby waives all rights to recover against the City and its respective officers,
employees, agents and representatives for any loss incurred by Operator from any cause insured
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against or required by any of the Project Documents to be insured against; provided, however,
that this waiver of subrogation shall not be effective with respect to any insurance policy if any
coverage would be materially reduced or impaired as a result. All insurance policies and
obligations provided for herein by this Agreement, and each renewal or replacement thereof, by
endorsement approved by an authorized representative of the underwriter, shall contain a waiver
of subrogation against the City, and its council members, officers, employees, attorneys and agents.
4.8 Scope of Insurance.
Whichever is greater, all insurance policies and obligations under this Agreement shall be
(1) all the insurance coverage and/or limits carried by or available to Operator; or (2) the minimum
insurance coverage requirements and/or limits shown in this Agreement. Any insurance proceeds
in excess of or broader than the minimum required coverage and/or minimum required limits,
which are applicable to a given loss, shall be available to the City. No representation is made that
the minimum insurance requirements of this Agreement are sufficient to cover the obligations of
the Operator under this Agreement. The City reserves the right throughout termination of this
Agreement, to review and make reasonable changes in the amount and type of insurance coverage
as the City reasonably deems necessary in connection with this Agreement; provided the City
provides to Operator reasonable prior written notice of such change. As well as a waiver of
subrogation rights as provided in Section 4.7, all insurance policies and obligations under this
Agreement shall contain endorsements as follows: (a) designate "the City of Tustin and its
respective elected and appointed officials, agents, representatives, and employees" as additional
insureds on the commercial general liability policies; and (b) the commercial general liability
insurance coverage shall be primary, and not contribute with any insurance or self-insurance
maintained by the City.
4.9 Obligation to Repair and Restore Damage Due to Casualty.
If the Improvements on the Site shall be totally or partially destroyed or rendered wholly
or partly uninhabitable by fire or other casualty required to be insured against by Operator,
Operator shall promptly proceed to obtain insurance proceeds and take all steps necessary to
begin reconstruction and, immediately upon receipt of insurance proceeds, to promptly and
diligently commence the repair or replacement of the Improvements to substantially the same
condition as the Improvements are required to be constructed pursuant to this Agreement,
whether or not the insurance proceeds are sufficient to cover the actual cost of repair,
replacement, or restoration. Operator shall complete the same as soon as possible thereafter so
that the Improvements can be occupied as a short-term transitional housing project in
accordance with this Agreement. In no event shall the repair, replacement, or restoration period
exceed nine (9) months from the date Operator obtains insurance proceeds unless the Director,
in his or her sole and absolute discretion, approves a longer period. The City shall cooperate
with Operator, at no expense to City, in obtaining any governmental permits required for the
repair, replacement, or restoration of the Improvements.
4.10 Operator's Indemnity.
(a) General Indemnity Provisions. Operator shall defend (by counsel
satisfactory to City), indemnify and save and hold harmless the City Indemnitees from
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and against all claims, damages, demands, actions, losses, liabilities, costs and expenses
(including, without limitation, attorneys' fees and court costs) arising from or relating
to: (i) a claim, demand or cause of action that any Person has or asserts against Operator
arising out of this Agreement; (ii) any act or omission of Operator, any contractor,
subcontractor or material supplier, engineer, architect or other person retained by
Operator with respect to the Site, including construction of the Project, the
Improvements and/or operations at the Site; (iii) from and against any taxes,
assessments, mechanic's liens, claims of materialmen and suppliers, or other claims by
private parties in connection with activities undertaken by the Operator on the Site; or
(iv) Operator's ownership, occupancy or use of the Site and Improvements thereon,
including the construction of the Improvements and development of or on-going
operations of the Project. Notwithstanding the foregoing, Operator shall not be
obligated to indemnify the City Indemnitees with respect to the consequences of any act
of active negligence or willful misconduct of the City Indemnitees. Operator's
obligations under this Section 4.10 shall survive the issuance of the Certificate of
Completion and termination of this Agreement, and are in addition to and do not limit
the obligations of the Operator under the Deed of Trust and Declaration of Covenants.
(b) Fees and Costs. The Operator shall reimburse the City, as applicable,
immediately upon written demand for all costs reasonably incurred by the City
(including the reasonable fees and expenses of attorneys, accountants, appraisers and
other consultants, whether the same are independent contractors or employees of the
City) in connection with the enforcement of the Project Documents and all related
matters including the following: (i) the City's commencement of, appearance in, or
defense of any action or proceeding purporting to affect the rights or obligations of the
Parties to any of the Project Documents, and (ii) all claims, demands, causes of action,
liabilities, losses, commissions and other costs against which the City Indemnitees are
indemnified under the Project Documents. Such reimbursement obligations shall
survive the issuance of the Certificate of Completion and termination of this Agreement.
(c) Commissions. The Operator shall indemnify the City from any real estate
commissions or brokerage fees which may arise from this Agreement or the Site. The
Operator represents that it has engaged no broker, agent, or finder in connection with
this transaction, and the Operator agrees to indemnify, defend and hold the City harmless
from any claim by any broker, agent or finder in connection with this Agreement, the
activities by the Operator, or the Site.
4.11 Rights of Access.
Prior to the issuance of the Certificate of Completion and during the Covenant Period,
for purposes of assuring compliance with this Agreement, representatives of the City shall have
the right of access to the Site, without charges or fees, during normal business hours during
the period of construction for the purposes of this Agreement, including, but not limited to,
inspection of the work being performed in constructing the Improvements so long as such
representatives comply with all safety rules. Such representatives shall, except in emergency
situations, provide reasonable Notice to the Operator prior to exercising its rights pursuant to
this Section.
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4.12 Compliance with Laws.
(a) General Provisions. Operator shall carry out the design, construction and
operation of the Improvements and Project in conformity with all applicable laws,
including all applicable state labor standards (including payment of prevailing wages if
not exempted), the City zoning and development standards, building, plumbing,
mechanical and electrical codes, and all other provisions of the City Municipal Code,
and the Fair Housing Act, 42 U.S.C. Section 3601 et seq. (and 24 C.F.R. Part 100), the
Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code
Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
(b) Public Works Requirements. Notwithstanding anything to the contrary in
this Agreement, if applicable, Operator and its contractors and subcontractors shall pay
prevailing wages and employ apprentices in compliance with Health and Safety Code
Sections 33423 through 33426, and Labor Code Section 1770, et seq., and shall be
responsible for the keeping of all records required pursuant to Labor Code Section 1776,
complying with the maximum hours requirements of Labor Code Sections 1810 through
1815, and complying with all regulations and statutory requirements pertaining thereto.
Operator shall be solely responsible for determining and effectuating compliance with
such laws, and the City makes no representation as to the applicability or non -
applicability of any of such laws to the construction of the Improvements, or any part
thereof Operator hereby expressly acknowledges and agrees that the City has not
previously affirmatively represented to the Operator or its contractor(s), in writing or
otherwise, that the construction of the Improvements, or other work to be covered by
this Agreement is not a "public work," as defined in Section 1720 of the Labor Code.
Operator hereby agrees that Operator shall have the obligation to provide any and all
disclosures or identifications required by Labor Code Section 1781, as the same may be
amended from time to time, or any other similar law.
(c) Indemnity. The Operator does hereby and shall indemnify and hold each
of the City Indemnitees harmless from and against any and all claims, demands, causes
of action, obligations, damages, liabilities, costs and expenses, including reasonable
attorneys' fees, that may be asserted against or incurred by the City Indemnitees with
respect to or in any way arising from Operator's 'compliance with or failure to comply
with applicable laws, including all applicable federal and state labor standards including
without limitation the requirements of Labor Code Section 1720, if applicable. The
foregoing indemnity shall continue from the Date of Agreement through the Covenant
Period and survive termination of this Agreement.
4.13 Nondiscrimination in Employment.
Operator certifies and agrees that all persons employed or applying for employment by
it, its affiliates, subsidiaries, or holding companies are and will be treated equally by it without
regard to, or because of race, color, religion, ancestry, national origin, sex, sexual orientation,
age, pregnancy, childbirth or related medical condition, medical condition or physical disability.
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4.14 Taxes and Assessments.
Operator shall pay prior to delinquency all ad valorem real estate taxes and assessments
on the Project during any period accruing after the Closing Date, subject to Operator's right to
contest in good faith any such taxes. Operator shall remove or have removed any levy or
attachment made on any portion of the Site or Project, or any part thereof, or assure the
satisfaction thereof within a reasonable time, but in no event to exceed sixty (60) days.
4.15 Liens.
If a claim of a lien is given or recorded affecting the Project, the Operator shall within
forty-five (45) days of such recording or service, or within five (5) days of the Director's
demand whichever last occurs: (i) pay and discharge the same; (ii) post a mechanic's lien bond
in compliance with applicable law sufficient to remove the lien from the property; or (iii)
provide the City with indemnification from the Title Company against such lien or other
assurance which the City deems, in its sole discretion, to be satisfactory for the payment of such
lien and for the full and continuous protection of City from the effect of such lien.
4.16 Certificates of Completion and Project Covenant Period.
Promptly after completion of the Improvements in conformity with this Agreement,
inclusive of a Certificate of Occupancy, the Director shall furnish the Operator with a Certificate
of Completion, substantially in the form attached hereto as Attachment No. 6. The Director
shall not unreasonably withhold such Certificate of Completion. The Certificate of Completion
shall be a conclusive determination of satisfactory completion of the Improvements and the
Certificate of Completion shall so state. If the Director refuses or fails to furnish a Certificate
of Completion after Notice from Operator, the Director shall, within fifteen (15) days of receipt
of such Notice, provide Operator with a written statement of the reasons the Director refused or
failed to furnish the Certificate of Completion. The statement shall also contain the Director's
opinion of the actions Operator must take to obtain the Certificate of Completion. The
Certificate of Completion shall not constitute evidence of compliance with or satisfaction of
any obligation of the Operator to any holder of any mortgage, or any insurer of a mortgage
securing money loaned to finance the Improvements, or any part thereof. Upon the issuance of
the Certificate of Completion, the Parties shall as soon as practical record the Certificate of
Project Covenant Period (Attachment No. 11).
4.17 Further Assurances.
Operator shall execute and acknowledge (or cause to be executed and acknowledged)
and deliver to the Director all documents, and take all actions, reasonably required by the City
from time to time to confirm the rights created or now or hereafter intended to be created under
the Project Documents or otherwise to carry out the purposes of the Project Documents,
including this Agreement.
4.18 Financing of the Project.
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(a) Evidence of Financial Capability. Within the time set forth in the
Schedule of Performance, Operator shall submit to the Director, evidence of a financing
plan satisfactory to the Director, in the Director's sole and absolute discretion, that
Operator has the financial capability necessary for the construction of the Project,
including the Improvements, and for the ongoing maintenance and operations of the
Project pursuant to this Agreement and Declaration of Covenants, including evidence
that Operator has obtained sufficient equity capital and/or that Operator has obtained
binding commitments, including construction financing, necessary to undertake
construction of the Project in accordance with this Agreement. Such evidence of
financial capability shall include reviewed financial statements for the most recent two
years, a copy of the commitment or commitments obtained by Operator for each source
of funds to assist in financing the construction of and the ongoing maintenance and
operations of the Project. As part of the financing plan, Operator has submitted to the
City a cost breakdown in the form of Attachment No 13 attached hereto, and shall update
Attachment No. 13 upon any material changes thereto, or as requested by the City,
detailing the development costs for the Project, including, but no limited to, the costs
for government permits and approvals; design, architecture and engineering fees;
construction costs of all buildings, improvements, and components of the Project;
furniture, fixtures and equipment; insurance; landscaping, parking, off-site
improvements; contractor's fees; and escalation and contingency fees. All copies of
commitments submitted by Operator to the Director shall be certified by Operator to be
true and correct copies thereof. Each commitment for financing shall be in such form
and content acceptable to the Director evidencing a firm and enforceable commitment,
with only those conditions which are standard or typical for the lender or donor involved
for similar projects. The City shall not be required to and has no obligation to
subordinate the City's Deed of Trust to any financing proposed by Operator.
(b) Mortgage Holder Protection. With respect to any approved mortgage or
deed of trust granted by Operator provided herein, whenever the Director may deliver
any Notice or demand to Operator with respect to any breach or Default by the Operator
under this Agreement, the Director shall at the same time deliver to each holder of record
of any mortgage or deed of trust authorized by this Agreement a copy of such Notice or
demand; provided that the failure to notify any holder of record shall not vitiate or affect
the effectiveness of Notice to the Operator. Each such holder shall (insofar as such rights
are held thereby) have the right, at its option, within sixty (60) days after the receipt of
the Notice, to cure or remedy or commence to cure or remedy and thereafter to pursue
with due diligence the cure or remedy of any such Default and to add the cost thereof to
the mortgage debt and the lien of its mortgage or deed of trust. Nothing contained in this
Agreement shall be deemed to permit or authorize such holder to undertake or continue
the construction or completion of the Improvements, or any portion thereof (beyond the
extent necessary to conserve or protect the Improvements) without first having expressly
assumed Operator's obligations under this Agreement in writing satisfactory to the
Director. The holder, in that event, must agree to complete, in the manner provided in
this Agreement, the Improvements to which the lien or title of such holder relates, but
on a schedule which takes into account the time reasonably required for the holder to
obtain title to and possession of the Site, analyze and negotiate amendments to plans,
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specifications, construction contracts and operating contracts or to negotiate new
construction contracts and operating contracts. Any such holder properly completing the
Improvements shall be entitled to a Certificate of Completion upon compliance with the
requirements of Section 4.16 of this Agreement. It is understood that a holder shall be
deemed to have satisfied the sixty (60) day time limit set forth above for commencing
to cure or remedy an Operator Default which requires title and/or possession of the Site
(or portion thereof) if and to the extent any such holder has within such sixty (60) day
period commenced proceedings to obtain title and/or possession and thereafter the
holder diligently pursues such proceedings to completion and cures or remedies the
Default.
(c) Failure of Holder to Complete Improvements. In any case where, sixty
(60) days after the holder of any mortgage or deed of trust creating a lien or encumbrance
upon the Site, or any part thereof, receives a Notice of Default by the Operator in
completion of construction of any of the Project, including Improvements, and such
holder is not vested with ownership of the Site and has not exercised the option to
construct as set forth in this Section 4.18(b), or if it has exercised the option but has
defaulted hereunder and failed to timely cure such Default, the City may purchase the
mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage
or deed of trust debt, including principal and interest and all other sums secured by the
mortgage or deed of trust. If the ownership of the Site or any part thereof has vested in
the holder, the City, if it so desires and as a supplement to any other rights the City may
possess by law, shall be entitled to a conveyance from the holder upon payment to the
holder of an amount equal to the sum of the following:
(1) The unpaid mortgage or deed of trust debt at the time title
became vested in the holder (less all appropriate credits, including those
resulting from collection and application of rentals and other income
received during foreclosure proceedings);
(2) All actual and necessary expenses with respect to
foreclosure;
(3) The net expense, if any, incurred by the holder as a direct
result of the subsequent management of the Site or part thereof;
(4) The costs of any improvements made by such holder;
(5) An amount equivalent to the interest that would have
accrued at the rate(s) specified in the holder's loan documents on the
aggregate of such amounts had all such amounts become part of the
mortgage or deed of trust debt and such debt had continued in existence to
the date of payment by the City; and
(6) Any customary prepayment charges imposed by the lender
pursuant to its loan documents and agreed to by Operator.
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(d) Right of the City to Cure Holder Default. In the event of a mortgage or
deed of trust default or breach by the Operator whether prior to or after the completion
of the construction of any of the Improvements, or any part of the Project thereof,
Operator shall immediately deliver to the Director a copy of any mortgage holder's
notice of default. If the holder of any mortgage or deed of trust has not exercised its
option to construct, the City shall have the right but no obligation to cure the default. In
such event, the City shall be entitled to reimbursement from the Operator of all proper
costs and expenses incurred in curing or attempting to cure such default.
4.19 Assignment of Project Plans.
In the event this Agreement is terminated, upon such termination the Operator shall
deliver to the Director an executed assignment in a form reasonably acceptable to the Director
of the Operator's right to use all plans, blueprints, drawings, sketches, specifications, tentative
or final subdivision maps, landscape plans, utilities plans, soils reports, noise studies,
environmental assessment reports, grading plans and any other materials relating to the Project
and construction of the Improvements on the Site (the "Project Plans"), together with copies of
all of the Project Plans. Any agreement with any Person preparing the Project Plans shall permit
and provide for such an assignment and transfer of Project Plans to the City.
S. COVENANTS AND RESTRICTIONS
5.1 Site and Housing Requirements.
Operator covenants and agrees for itself, its successors, assigns, and every successor in
interest to the Site and Project, or any part thereof, that Operator shall devote the Site and Project
to the uses specified in and shall operate in conformity with (i) this Agreement, including this
Section 5 hereof, (ii) the Declaration of Covenants (Attachment 7), and (iii) the Deed of Trust,
whichever is the more restrictive in each case unless expressly provided to the contrary and all
such covenants and use restrictions shall run with the land. All uses conducted on the Site and
as part of the Project, including, without limitation, all activities undertaken by Operator
pursuant to this Agreement, shall conform to all applicable provisions of the City Municipal
Code.
5.2 Site and Housing Requirements.
(a) Short -Term Transitional Housing. Operator agrees to make available
and restrict occupancy to the Project to a qualifying family for short-term transitional
housing as more particularly defined and set forth in the Declaration of Covenants.
(b) Selection of Residents. Operator shall be responsible for the selection of
families to occupy the Project upon a placement criterion established in writing by the
Operator, which criteria is outlined and defined in Attachment 14 to this Agreement
(and repeated in the Declaration of Covenants as Exhibit C) and at a minimum, selection
shall be limited to homeless families. Homeless families for the purposes of this
Agreement shall mean families that currently either lack shelter, or have shelter that is
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so inadequate, temporary, or insecure that the situation threatens the social,
psychological, or physical health of the family and do not have the financial means to
immediately secure shelter for the family. Any change in the placement criteria must
be approved in writing by the City and the City may require the placement criteria be
amended from time -to -time in the Director's reasonable discretion upon written notice
to Operator. The paramount factor for any selection criteria shall be that families with
ties to the City of Tustin will receive preferential placement and use its best efforts to
have all Units occupied by families with direct ties to the City, and if any Unit becomes
unoccupied, then Operator shall hold open the Unit for at least fifteen (15) days in an
effort to fill the Unit with a family that has direct ties to the City and if none of the Units
are occupied by families with direct ties to the City then when a Unit becomes available
it shall be held open for up to thirty (30) days in an effort to fill the Unit with a family
with Tustin ties and upon the expiration of this 30 -day waiting period, no family with
direct City ties has filled the vacant Unit, then while the Project remains fully occupied,
any subsequent family with direct City ties seeking transitional housing at the Project
shall be given first priority and preference by Family Promise to all other facilities
controlled by Family Promise providing transitional, short-term, or emergency housing
within the County of Orange upon such family meeting applicable program and housing
requirements of such Family Promise controlled facility.
(c) Operator's Continuing Obligations. Operator acknowledges that the
City has entered into this Agreement with the expectation that Operator shall
affirmatively manage and ensure the continued availability of the Project for short-term
transitional housing only, shall not use the Project for any emergency homeless shelter,
shall prepare and submit to the City all documentation required for such operations and
ongoing maintenance of the Project, shall monitor the Project and residents, and shall
submit compliance and status reports to the Director on a regular periodic basis, or as
otherwise reasonably requested by the Director. The Operator shall maintain complete
and accurate records of its operations and services of the Project and permit upon
reasonable Notice any duly authorized representative of the City to inspect at the Project
the books and records of the Operator pertaining to this Agreement and the Project.
5.3 Maintenance of Site.
The Operator shall maintain the Project, including the Site and all Improvements
thereon, in conformity with the City Municipal Code and the requirements of this Agreement
and Declaration of Covenants, and shall repair and maintain the Project in first class condition,
including keeping the Project free from any graffiti, accumulation of debris, or waste materials.
If, at any time, the Operator fails to repair or maintain the Project, or any portion thereof, and
said condition is not corrected as soon as reasonably possible after written Notice from the City,
the City may perform the necessary repair or maintenance and Operator shall immediately pay
such costs as are reasonably incurred for such repair or maintenance. This covenant shall run
with the land and shall remain in effect for the Covenant Period (i.e., 55 -years from the date of
the issuance of a Certificate of Occupancy by the City for the Project), or through any extension
agreed upon by the Parties.
5.4 Nondiscrimination Covenants.
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(a) Classes Protected. Operator covenants by and for itself 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,
sexual preference, handicap, national origin or ancestry, or any other class of persons
listed in subdivision (a) or (d) of Section 12955 of the Government Code, in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the
Operator 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 the Site or any portion thereof. The foregoing
covenants shall run with the land.
(b) Non -Discrimination Provision. All leases or contracts entered into by
Operator relating to the Project shall contain or be subject to substantially the following
nondiscrimination clause:
"The lessee herein covenants by and for himself or herself, his or her
heirs, executors, administrators and assigns, and all persons claiming under
or through him or her, 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, sexual preference, handicap, national
origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the premises herein leased, nor shall lessee, 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 the premises herein
leased."
5.5 Enforcement of Covenants by the City.
The City is deemed the beneficiary of the terms and provisions of this Agreement and
the Declaration of Covenants running with the land. If this Agreement, or any covenants in any
agreement pursuant to this Agreement, including without limitation the Declaration of
Covenants and the Deed of Trust, are breached, the City shall have the right to exercise all rights
and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings
to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement
and such covenants may be entitled.
b.. DEFAULTS, REMEDIES, AND TERMINATION
6.1 Default Remedies.
Subject to any extensions of time provided for in this Agreement, failure by any Party
to perform any action or covenant required by this Agreement within the time periods provided
herein following Notice and a failure to cure as described hereafter, shall constitute a default
under this Agreement (hereinafter, a "Default"). A Party claiming a Default shall give written
Notice of Default to the other Party specifying the Default. Except as otherwise expressly
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1470132.1
provided in this Agreement, and without limiting or affecting rights of the Parties hereto to
terminate this Agreement, a Party shall not institute any proceedings against any other Party,
and the other Party shall not be in Default if such Party within sixty (60) days from receipt of
such Notice cures any such Default; provided that, (i) if such Default is non -monetary in nature
and not reasonably subject to cure within such time period, the Party receiving the Notice shall
have up to an additional ninety (90) days to effect such cure so long as the Party has acted with
due diligence to commence to cure, correct, or remedy the specified Default within the initial
thirty -day period after receipt of the Notice of Default. For purposes of this Section 6.1 only,
any Notice of Default sent by the City to Operator shall also be sent to HomeAid of Orange
County ("HomeAid") and HomeAid shall, at its option, have the same opportunity as Operator
to cure the Default as specified in the City's Notice, provided that the failure to notify HomeAid
shall not vitiate or affect the effectiveness of any Notice to the Operator.
6.2 Institution of Legal Actions.
In addition to any other rights or remedies and subject to the restrictions otherwise set
forth in this Agreement, any Party may institute an action at law or equity to seek specific
performance of the terms of this Agreement, including the Declaration of Covenants, or to cure,
correct or remedy any Default, to recover damages for any Default, or to obtain any other
remedy consistent with the purpose of this Agreement.
6.3 Termination b.. t�perator Prior to Conveyance.
In the event that: (i) the Operator is not in Default under this Agreement and the City
does not execute the Grant Deed and attempt to convey the Site to the Operator in the manner
and condition and by the date provided for in this Agreement; or (ii) in the event of any Default
of the City prior to the Conveyance and such Default is not cured within the applicable time
period after written Notice by Operator to the City, then this Agreement may, at the option of
Operator, be terminated by Notice thereof to the Director. From the date of the Notice of
termination of this Agreement by the Operator to the City, this Agreement shall be deemed
terminated and there shall be no further rights or obligations among the Parties unless otherwise
provided for herein.
6.4 Termination by the City Prior to Conveyance.
If prior to the time established in the Schedule of Performance for the satisfaction of the
City's Conditions Precedent: (i) Operator assigns this Agreement or any rights therein or in the
Site or Project in violation of this Agreement; or (ii) Operator does not fulfill the City's
Conditions Precedent and such failure is not caused by the City; or (iii) Operator fails to execute
the Declaration of Covenants or the Deed of Trust; or (iv) Operator is otherwise in Default of
this Agreement and such Default is not cured within the applicable time period after written
Notice by City to Operator; then this Agreement and any rights of Operator or any assignee or
transferee with respect to or arising out of the Agreement, the Site, or the Project, shall, at the
option of the City, be terminated by Notice by the City to Operator. From the date of the Notice
of termination of this Agreement to Operator plus any cure period and thereafter, this
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1470132.1
Agreement shall be deemed terminated and there shall be no further rights or obligations among
the Parties unless otherwise provided for herein.
6.5 Right of Reversion, and Repurchase of Site Upon Default after Conveyance.
Notwithstanding any other provisions of this Agreement, the City may reacquire the Site
and Improvements as follows:
(a) Right of Reversion. The City hereby reserves the power of
termination, right of reversion, and reentry wherein all right, title and interest of
Family Promise and its successors and assigns, shall cease and revert immediately
and automatically to the City, its successors or assigns upon the follows events: (a)
If Family Promise, or its respective successors and assigns fail to commence
construction of the Project, beyond any applicable cure periods, on or before the date
as set forth in the Schedule of Performance ("Construction Commencement Date");
and/or (b) If Family Promise, or its respective successors and assigns, abandons,
vacates, or relinquishes possession of the Site to the City prior to the Construction
Commencement Date. For purposes of Sections 6.5(a) and 6.5(b), commence
construction of the Project shall not include grading of the Site, but shall mean
commencement of the Project's vertical Improvements.
(b) Repurchase Upon Default after Conveyance. If after Operator
commences construction of the Project and Operator then becomes in default under
this Agreement, the Promissory Note, the Deed of Trust, or the Declaration of
Covenants, and the default has not been cured within any applicable time period
allowed by the applicable agreement, the City shall have the right to repurchase the
Site, and all Improvements then existing thereon ("Right of Repurchase"). The
repurchase price ("Repurchase Price") payable by the City to the Operator for the
Site, inclusive of the then existing Improvements thereon, shall be the "Fair Market
Value" (defined below) of the Site and Improvements thereon less the then current
amount owing on the Promissory Note as of the date of the City's Notice exercising
the Right of Repurchase. The Right of Repurchase may be exercised by delivery from
the City to Operator a Notice as provided for in Section 8.2 of this Agreement. If the
City exercises the Right of Repurchase, but then elects to revoke the exercise of such
right, the Right of Repurchase shall not terminate or preclude the City from
subsequently exercising the Right of Repurchase.
(c) Calculating Fair Market Value for Repurchase Price. The agreed fair
market value of the Site, and Improvements thereon under Sections 6.5(a) and 6.5(b),
shall be determined and completed within 60 days by appraisal after Notice of
exercise by the City, as follows: Operator and the City shall immediately each
separately retain an MAI appraiser to appraise the fair market value of the Site and/or
Improvements thereon, as applicable, taking into account the highest and best use of
the Project as encumbered by the Declaration of Covenants, which shall mean an
extremely low-income apartment complex for short-term transitional housing. Each
Party shall be advised promptly of the appraiser selected by the other, and each shall
receive a written and signed copy of the other's appraisal report. The average of the
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two appraisals of fair market value shall become fair market value; provided,
however, if the difference between the two appraisals exceed 10% of the lower
appraisal, the City shall immediately select a third independent MAI appraiser. The
third appraiser selected by the City shall, following review of the two appraisals,
prepare an independent appraisal establishing his or her opinion of the Fair Market
Value of the Site and current Improvements thereon, which valuation shall be
accepted as being final and conclusive between the Parties hereto, and by any court
of competent jurisdiction, and shall become the "Fair Market Value." Each Party will
receive a written and signed copy of the third appraiser's report. The expenses and
cost of the third appraiser and any cost incurred to obtain said third appraisal shall be
divided equally between Operator and the City.
(d) Qualifications of Appraisers. All appraisers selected by the Parties
shall be qualified as State of California Bureau of Real Estate Appraisers Certified
General (AG), hold the designation of Member Appraisal Institute (MAI), and shall
have at least ten (10) years' experience in the appraisal of commercial, residential,
and affordable housing property in Orange County, California. No appraiser shall, at
the time of selection or at any time during the preceding ten (10) year period: (i) have
an ownership interest in or be employed by either Party or any affiliate of a Party
(collectively, the "Conflicted Parties"), except for previous payment for services as
an appraiser, (ii) have had direct financial ties to the Conflicted Parties or any one
thereof, or (iii) have had close professional or personal relationships with any key
member of any Conflicted Party. In addition, no appraiser shall, during his or her
tenure as an appraiser engage in a discussion or make an agreement with any
Conflicted Party regarding employment during the pendency of or after completion
of the appraisal.
(e) Opening of Escrow and Deposits. Within five (5) business days after
the City has exercised the Right of Repurchase, or as soon thereafter as reasonably
practicable, an escrow shall be opened with an escrow company mutually acceptable
to the City and Operator for the conveyance of the real property (i.e., the Site and
Improvements thereon) to the City. The City shall deposit the Repurchase Price, as
applicable, in escrow not later than one (1) business day prior to the anticipated date
for the close of escrow. Operator and HomeAid shall deliver to escrow not later than
one (1) business day prior to the anticipated date for the close of escrow a joint
escrow instruction dividing the Repurchase Price net proceeds between Operator and
Home Aid. The failure of Operator and HomeAid to deliver a joint escrow
instruction dividing the Repurchase Price, or any disagreement on the division of the
Repurchase Price between Operator and HomeAid, shall not cause or delay in any
manner the close of escrow for the repurchase of the Site as provided herein.
(f) Status of Title and Site. The City's obligation to close escrow shall be
subject to the City's approval of a then -current preliminary title report and, at the
City's option, upon any environmental and other site testing. The City shall have
thirty (30) days after exercise of the rights provide herein to enter upon the Site and
Improvements thereon, to conduct any tests, inspections, investigations, or studies
of the condition of the Site and Improvements thereon. Operator shall permit the
31
1470132.1
City access for such purposes. Any exceptions shown on the preliminary title report
created on or after the Operator's acquisition of the Site shall be removed by
Operator at its sole expense prior to the close of escrow unless any such exceptions
are accepted by the City in its reasonable discretion; provided, however, that the City
shall accept the following exceptions to title: (i) current taxes not yet delinquent, (ii)
matters affecting title existing on the date of Operator's acquisition of the Site, (iii)
liens and encumbrances in favor of the City, and (iv) matters shown as printed
exceptions in the standard form ALTA owner's policy of title insurance. Escrow
shall close promptly after acceptance by the City of the condition of title and the
physical and environmental condition of the Site. The City shall be responsible for
the escrow fees, documentary transfer taxes, recording fees and any other costs and
expenses of the escrow.
6.6 Rights and Remedies Are Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of the
Parties are cumulative, and the exercise by a Party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same Default or any other Default by another Party.
6.7 Inaction Not a Waiver of Default.
Any failures or delays by either Party in asserting any of its rights and remedies as to
any Default shall not operate as a waiver of any Default or of any such rights or remedies, or
deprive either such Party of its right to institute and maintain any actions or proceedings which
it may deem necessary to protect, assert or enforce any such rights or remedies.
6.8 Forced Delay; Extension of Times of Performance.
In addition to specific provisions of this Agreement, performance by any Party
hereunder shall not be deemed to be in Default, and all performance and other dates specified
in this Agreement shall be extended, where delays or Defaults are due to war, insurrection, riots,
floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, acts or omissions
of another party, or acts or failures to act by any other public or governmental authority or entity
(except acts or failures to act of the City). Notwithstanding anything to the contrary in this
Agreement, an extension of time for any such cause shall be for the period of the forced delay
and shall commence to run from the time of the commencement of the cause, if Notice by the
Party claiming such extension is sent to the other Party within fifteen (15) days of the
commencement of the cause. Times of performance under this Agreement may also be
extended in writing by the mutual agreement of the Director and Operator. The Director shall
have the authority to approve extensions on behalf of the City of time not to exceed a cumulative
total of one hundred eighty (180) days.
7.. TRANSFERS OR ASSIGNMENTS
7.1 Prohibition on Transfers or Assignments.
32
1470132.1
The qualifications and identity of the Operator are of particular concern to the City.
Until the completion of construction of the Project under this Agreement, no voluntary or
involuntary successor in interest of Operator shall acquire any rights or powers under this
Agreement, nor shall Operator make any total or partial sale, transfer, conveyance, assignment,
subdivision, refinancing or lease of the whole or any part of the Site or the Project thereon
without prior written approval of the Director, except as expressly set forth herein. However,
any voluntary or involuntary transfer to HomeAid is exempt from this section so long as
HomeAid is a qualified nonprofit organization in good standing and has requisite experience
and financial ability to perform the obligations of Operator as and when required under this
Agreement and so long as at least sixty (60) days before any such voluntary or involuntary
transfer, HomeAid shall provide notice in writing to the City of the intended transfer
accompanied with evidence of such qualifications of good standing, requisite experience, and
financial ability. Upon receipt of such information, the City may state its objections to any
transfer in writing to HomeAid, or request additional information from HoemAid, which shall
be expeditiously provided to the City. If a transfer occurs to HomeAid as provided herein,
HomeAid shall not assign or transfer to any third -party operator, or have performed on its behalf
any of the conditions, covenants, or obligations imposed under this Agreement, or the
Declaration of Covenants, without written consent of the City. For purposes of this Section 7. 1,
"good standing" shall mean good corporate standing with the State of California and the
existence of no known, or potentially pending legal or administrative proceeding or actions that
could reasonably impede or prevent compliance by HomeAid with this Agreement and the
Declaration of Covenants; "requisite experience" shall mean that HomeAid has directly
operated within the last two years before the proposed transfer a similar short-term transitional
housing project; and "financial ability" shall mean HomeAid has immediately available funds
to operate the Project as provided for in this Agreement and the Declaration of Covenants for
at least two years. The City preserves all rights and remedies, in law and equity, to enforce the
provisions of this Section 7.1 and any such transfer found in violation hereof shall be deemed
void.
7.2 Permitted Transfers.
Notwithstanding any other provision of this Agreement to the contrary, the City shall
not unreasonably withhold their approval of an assignment of this Agreement or conveyance of
the Site, or any part thereof, in connection with any of the following:
(a) Any transfers to an entity or entities in which Operator retains a
minimum of fifty-one percent (51 %) of the ownership or beneficial interest and retains
management and control of the transferee entity or entities.
(b) The conveyance or dedication of any portion of the Site, or any part
thereof, to the City or other appropriate governmental agency, or the granting of
easements or permits to facilitate construction of the Project.
In the event of a proposed assignment by Operator under Sections 7.2(a) or (b), Operator
agrees that at least thirty (30) days prior to such assignment it shall give Notice to the Director
33
1470132.1
requesting written approval of such assignment and satisfactory evidence that the assignee has
assumed jointly with Operator the obligations of this Agreement.
(c) An assignment of this Agreement or conveyance of the Site, or any part
thereof to Home Aid does not need City approval, so long as Home Aid complies with
the provisions of Section 7.1 of this Agreement.
7.3 Assignment by City/Authority.
The City may assign or transfer any of its rights or obligations under this Agreement
with the approval of the Operator, which approval shall not be unreasonably withheld.
8. MISCELLANEOUS
8.1 Obligations Unconditional and Independent.
Notwithstanding the existence, at any time, of any obligation or liability of the City to
Operator, or any other claim by Operator against the City, in connection with the Site or
otherwise, Operator hereby waives any right it might otherwise have (a) to offset any such
obligation, liability or claim against Operator's obligations under this Agreement (including
without limitation the attachments hereto), or (b) to claim that the existence of any such
outstanding obligation, liability or claim excuses the nonperformance by Operator of any of its
obligations under the Project Documents.
8.2 Notices.
Any approval, disapproval, demand, document or other form of notice (collectively,
"Notice") which either Party may desire to give to the other Party under this Agreement must
be in writing and delivered either personally, by a nationally recognized commercial delivery
services (i.e., FedEx or UPS), or by registered or certified mail with postage prepaid, that
provides a receipt verifying the date and time of delivery. Notices shall be directed to the address
or addresses of the Party as set forth below, or to any other address or addresses as that Party
may later designate by Notice delivered in accordance with this Section.
To City: Tustin Housing Authority
300 Centennial Way
Tustin, California 92780
Attention: Executive Director
Phone: (714) 573-3117
Fax No.: (714) 669-0976
with a copy to: The City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Manager
Phone: (714) 573-3010
Fax No.: (714) 838-1602
34
1470132.1
To Operator: Family Promise of Orange County, Inc.
310 West Broadway
Anaheim, California 92805
Attention: President/CEO
Phone: (714) 353-0428
Fax No.: (714) 787-3489
with a copy to: Managing Partner
Cummins & White
2424 South East Bristol
Newport Beach, CA. 92660
To HomeAid: For purposes of Section 6.1 only:
HomeAid Orange County
24 Executive Park, Suite100
Irvine, California 92614
Attention: Executive Director
Phone: (949) 553-9510
Fax No.:
Any Notice shall be deemed received immediately on the date delivered by hand or by
a commercial delivery services and shall be deemed received on the third day from the date it
is postmarked if delivered by registered or certified mail.
8.3 No Third -Party Beneficiaries.
Except as may be provided in Section 6 et. seq. and 7 et. seq., this Agreement is made
for the purpose of setting forth rights and obligations of Operator and City and no other Person
shall have any rights hereunder or by reason hereof and there shall be no third -party
beneficiaries of this Agreement.
8.4 Counterparts.
Any Project Document may be executed in counterparts, all of which, taken together,
shall be deemed to be one and the same document. Furthermore, each counterpart may be signed
and delivered by facsimile, each of which shall be deemed an original if the original is also
immediately deposited and sent via registered or certified mail.
8.5 Venue.
Operator irrevocably and unconditionally submits to the jurisdiction of the Superior
Court of the State of California for the County of Orange any legal action or proceeding arising
out of or relating to this Agreement or the other Project Documents. Assuming proper service
of process, Operator also waives any objection regarding personal or in rem jurisdiction or
venue.
35
1470132.1
8.6 Severability of Provisions.
No provision of any Project Document that is held to be unenforceable or invalid shall
affect the remaining provisions, and to this end all provisions of the Project Documents are
hereby declared to be severable and if any term, provision, condition or covenant of this
Agreement or its application to a Party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted by law.
8.7 Headings.
Article and section headings are included in the Project Documents for convenience of
reference only and shall not be used in construing the Project Documents.
8.8 Conflicts.
In the event of any conflict between the provisions of this Agreement and those of any
other Project Documents, this Agreement shall prevail. The fact that one document provides
for greater, lesser or different rights or obligations than the other shall not be deemed a conflict
unless the applicable provisions are inconsistent and cannot be simultaneously performed.
8.9 Interpretation.
As used in the Project Documents, masculine, feminine or neuter gender and the singular
or plural number shall each be deemed to include the others where and when the context so
dictates. The word "including" shall be construed as if followed by the words "without
limitation." This Agreement shall be interpreted as though prepared jointly by all Parties.
8.10 No Waiver.
A waiver by either Party of a breach of any of the covenants, conditions or agreements
under the Project Documents to be performed by the other Party shall not be construed as a
waiver of any succeeding breach of the same or other covenants, agreements, restrictions or
conditions of the Project Documents.
8.11 Modifications.
Any alteration, change or modification of or to this Agreement, in order to become
effective, shall be made in writing and in each instance signed on behalf of each Party.
8.12 Legal Advice.
Each Party represents and warrants to the other the following: they have carefully read
this Agreement, and in signing this Agreement, they do so with full knowledge of any right
which they may have; they have received independent legal advice from their respective legal
36
1470132.1
counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult
legal counsel as to the matters set forth in this Agreement; and, they have freely signed this
Agreement without any reliance upon any agreement, promise, statement or representation by
or on behalf of the other Party, or their respective agents, employees or attorneys, except as
specifically set forth in this Agreement, and without duress or coercion, whether economic or
otherwise.
8.13 Time of the Essence.
Time is of the essence in performance of this Agreement.
8.14 Warranty against Payment of Consideration.
Operator warrants that it has not paid or given, and will not pay or give, any third person
any money or other consideration for obtaining this Agreement.
8.15 Successors and Assi xms.
All of the terms, covenants and conditions of this Agreement shall be binding upon the
Parties and their permitted successors and assigns. Whenever the term "Operator" is used in
this Agreement, such term shall include any other permitted successors and assigns as herein
provided.
8.16 City pprovals and Actions.
Whenever a reference is made herein to an action or approval to be undertaken by the
City, the Director is authorized to act on behalf of same unless specifically provided otherwise
or the law otherwise requires.
8.17 Real Estate Brokers.
The City and Operator each represent and warrant to each other that no broker or finder
is entitled to any commission or finder's fee in connection with this transaction and each agrees
to defend and hold harmless the other from any claim to any such commission or fee resulting
from any action on its part.
8.18 Attorneys' Fees.
In any action among the Parties to interpret, enforce, reform, modify, rescind, or
otherwise in connection with any of the terms or provisions of this Agreement, the prevailing
Party in the action shall be entitled, in addition to any other relief to which it might be entitled,
reasonable costs and expenses including, without limitation, litigation costs and reasonable
attorneys' fees.
8.19 Applicable Law.
37
1470132.1
The laws of the State of California shall govern the interpretation and enforcement of
this Agreement.
8.20 Non -Liability of Officials and Employees of the City.
No member, official or employee of the City shall be personally liable to the Operator,
or any successor in interest, in the event of any Default or breach by the City or for any amount
which may become due to the Operator or its successors, or on any obligations under the terms
of this Agreement.
8.21 Relationship Between the Cit.. a�perator.
It is hereby acknowledged that the relationship between the City and the Operator is not
that of a partnership or joint venture and that the City and the Operator shall not be deemed or
construed for any purpose to be the agent of the other. Accordingly, except as expressly
provided herein or in the Attachments hereto, the City shall have no rights, powers, duties or
obligations with respect to the development, operation, maintenance or management of the Site,
including the Project and Improvements thereon.
8.22 Computation of Time.
The time in which any act is to be done under this Agreement is computed by excluding
the first day (such as the day escrow opens), and including the last day, unless the last day is a
holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall
mean all holidays as specified in Section 6700 and 6701 of the California Government Code. If
any act is to be done by a particular time during a day, that time shall be Pacific Time Zone
time.
8.23 Cooperation.
Each Party agrees to cooperate with the other in this transaction and, in that regard, to
sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry
out the purposes and intent of this Agreement including, but not limited to, releases, or
additional agreements.
8.24 Entire Agreement.
This Agreement, including all exhibits and attachments referenced herein, integrates all
of the terms and conditions mentioned herein or incidental hereto, and supersedes all
negotiations or previous agreements between the parties or their predecessors in interest with
respect to all or any part of the subject matter hereof.
8.25 Not a Development Agreement.
This Agreement is not a development agreement as provided in Government Code
Section 65864 and is not a grant of any entitlement, permit, land use approval, or vested right
in favor of Operator, the Project, or the Site. The City shall use good faith efforts, within
38
1470132.1
applicable legal constraints and consistent with applicable City policies, to take such actions as
may be necessary or appropriate to effectuate and carry out this Agreement in a timely and
commercially reasonable manner. The City acknowledges that, concurrently with the execution
of this Agreement, the City and Operator intend to enter into a Development Agreement relating
to the Site.
8.26 Memorandum of Agreement.
As soon as reasonably practical after this Agreement is fully executed, the Memorandum
of Disposition and Development Agreement substantially in the form of Attachment No. 10
shall be executed by the Parties and recorded.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on
the dates hereinafter respectively set forth.
FAMILY PROMISE OF ORANGE COUNTY, INC.,
a California non-profit corporation
By:
Bernd Steinebrunner, President
By:
Susan Currie, Secretary
CITY OF TUSTIN, a municipal corporation,
By:
Matthew S. West, City Manager
ATTEST:
By:
Erica N. Yasuda, City Clerk
TUSTIN HOUSING AUTHORITY,
a local housing authority,
By:
Matthew S. West, Executive Director
39
1470132.1
ATTEST:
Lm
Erica N. Yasuda, Clerk of the Board
APPROVED AS TO FORM:
LN
David E. Kendig, City Attorney
Housing Authority General Counsel
40
1470132.1
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On , 2020, before me, ,
Notary Public, personally appeared, who proved to me on the basis of satisfactory
evidence to be the person(s) whose name is subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity, and that by his/her/their signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
1470132.1
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On , 2020, before me, ,
Notary Public, personally appeared, who proved to me on the basis of satisfactory
evidence to be the person(s) whose name is subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity, and that by his/her/their signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
1470132.1
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On , 2020, before me, ,
Notary Public, personally appeared, who proved to me on the basis of satisfactory
evidence to be the person(s) whose name is subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity, and that by his/her/their signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
1470132.1
ATTACHMENT NO. 1
Legal Description
1941 El Camino Real, Tustin, CA 92780
THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF ORANGE, City OF TUSTIN, AS DESCRIBED AS
FOLLOWS:
THE NORTHWESTERLY 230 FEET OF THE SOUTHEASTERLY 386 FEET OF THE
NORTHEASTERLY 210 FEET OF THE SOUTHWESTERLY 240 FEET OF THE
SOUTH QUARTER OF LOT 29 IN BLOCK 12 OF IRVINE'S SUBDIVISION, AS
SHOWN ON A MAP RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS
RECORD MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
APN 500-071-12
ATTACHMENT 1-1
1470132.1
ATTACHMENT NO. 2
Site Map
ATTACHMENT 2-1
1470132.1
ATTACHMENT NO. 3
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Clerk
Grant Deed
SPACE ABOVE RESERVED FOR RECORDER'S USE
This document is exempt from recording fee pursuant to Government Code §§ 6103 and 27383
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, CITY OF TUSTIN,
a municipal corporation (the "City"), does hereby GRANT to FAMILY PROMISE OF ORANGE
COUNTY, INC., a California non-profit corporation ("Family Promise" or "Operator"), the real
property located in the County of Orange, State of California, described as follows:
THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF ORANGE, City OF TUSTIN, AS DESCRIBED AS
FOLLOWS:
THE NORTHWESTERLY 230 FEET OF THE SOUTHEASTERLY 386 FEET OF THE
NORTHEASTERLY 210 FEET OF THE SOUTHWESTERLY 240 FEET OF THE
SOUTH QUARTER OF LOT 29 IN BLOCK 12 OF IRVINE'S SUBDIVISION, AS
SHOWN ON A MAP RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS
RECORD MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
APN 500-071-12
ATTACHMENT 3-1
1470132.1
The foregoing Grant is SUBJECT TO the following:
A. The real property is conveyed in accordance with and subject to the provisions of the
Disposition and Development Agreement entered into by and between the City and
Family Promise (defined as the "Operator" therein) dated , 2020 (the
"DDA"), a copy of which is on file with the City at its offices located at 300 Centennial
Way, Tustin, California 92780 as a public record and which is incorporated herein by
reference. The DDA generally requires Family Promise to construct and develop the
real property for short-term transitional housing, together with other onsite and offsite
improvements (collectively, the "Improvements") and to comply with all other
requirements set forth in the DDA. The DDA contains a Right of Repurchase in favor
of the City upon a default. The covenants in the DDA shall run with the land and shall
be binding upon Family Promise and all of the successors and assigns of Family
Promise's right, title, and interest in and to any portion of the real property or
Improvements for the periods of time set forth therein. All the terms used herein, unless
otherwise defined herein, shall have the meaning as in the DDA.
B. The real property is further conveyed in accordance with and subject to those certain
recorded covenants and use restrictions set forth in the Declaration of Covenants and
Restrictions, and any amendments hereto, entered into by and between the City and
Family Promise, which shall run with the land for a period of 55 years as set forth in
Declaration of Covenants and Restrictions, which is incorporated herein.
C. The City hereby reserves the power of termination, reversion, and right of reentry of
the Site as follows: If Family Promise, or its respective successors and assigns fail to
(a) commence construction of the Project on or before the date as set forth in the
Schedule of Performance ("Construction Commencement Date") attached to the DDA,
beyond any applicable cure periods, and/or (b) abandons the Project prior to the
Construction Commencement Date, then the Site will automatically revert back to the
City. For purposes of this paragraph, "Commence construction of the Project" shall not
include grading of the Site, but shall mean commencement of the Project's vertical
Improvements and "abandons" shall mean that Operator has vacated and relinquished
possession of the Site to the City upon written Notice to the City.
CITY OF TUSTIN, a municipal corporation,
By:
Matthew S. West, City Manager
ATTEST:
By:
Erica N. Yasuda, City Clerk
ATTACHMENT 3-2
1470132.1
APPROVED AS TO FORM:
LOW
David E. Kendig, City Attorney
Housing Authority General Counsel
ACCEPTED BY OPERATOR:
FAMILY PROMISE OF ORANGE COUNTY, INC.,
a California non-profit corporation
IRm
Bernd Steinebrunner , President
Sue Currie, Secretary
ATTACHMENT 3-3
1470132.1
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On , 2021, before me, , Notary Public,
personally appeared, who proved to me on the basis of satisfactory evidence to be the person(s)
whose name is subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, and that by his/her/their signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
ATTACHMENT 3-4
1470132.1
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On , 2021, before me, , Notary Public,
personally appeared, who proved to me on the basis of satisfactory evidence to be the person(s)
whose name is subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, and that by his/her/their signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
ATTACHMENT 3-5
1470132.1
ATTACHMENT NO. 4
Promissory Note
PROMISSORY NOTE SECURED BY DEED OF TRUST
Principal Amount
Operator: FAMILY PROMISE OF ORANGE
COUNTY, INC., a California non-profit
corporation
Maturity Date:
Date of Note:
2021
Lender: CITY OF TUSTIN, a California municipal
corporation
Interest Rate: Three Percent (3%)
FOR VALUE RECEIVED, the undersigned FAMILY PROMISE OF ORANGE
COUNTY, INC., a California non-profit corporation ("Operator"), with its principal place of business
located at 310 West Broadway, Anaheim, California 92805 promises to pay to the CITY OF
TUSTIN, a California municipal corporation ("City") located at 300 Centennial Way, Tustin,
California 92780, or such place as City may,
Operator, the principal sum of
this Promissory Note.
from time to time, designate by written notice to the
Dollars ($ ), as set forth in
1. Agreement and Deed of Trust. This Promissory Note is made and given
pursuant to that certain Disposition and Development Agreement between the City and Operator,
dated , 2020 ("Agreement"), which is incorporated herein by this reference. This Promissory
Note will be governed by the Agreement and by the additional terms set forth in this Promissory
Note. All capitalized terms used, but not defined herein, shall have the meanings given to them in the
Agreement. Until such time that this Promissory Note is paid in full, it will be secured by a Deed of
Trust and Assignment of Rents of the same date by and between the City and Operator ("Deed of
Trust").
2. Interest Rate, Maturity, Forgiveness, and Prepayment of Note.
a. Interest Rate. Interest shall accrue upon the principal amount owed on this
Promissory Note at the rate of three percent (3%) per annum, compounded
annually.
b. Maturity Date. Unless forgiven in accordance with Section 2.c. hereof, all
accrued interest, if any, and any remaining principal that is due shall be due and
payable in full without any further demand or notice upon the date that is thirty
ATTACHMENT 4-1
1470132.1
(30) years from the date of the issuance of the Certificate of Completion for the
Project (the "Maturity Date").
C. Forgiveness of Cites. If Operator is not found in default of the Deed of
Trust, Agreement, or Declaration of Covenants up to and including the
Maturity Date and no amount is owing under this Promissory Note, then this
Promissory Note shall be cancelled. The principal, including applicable
interest, due and owing on this Promissory Note will be reduced and forgiven
by the City in an amount equal to one -thirtieth (1/30) of both principal and
interest on such fractional share only for each full Year (without proration)
that Operator uses the Site and operates the Project solely and exclusively
as set forth in the Agreement and Declaration of Covenants, or as otherwise
approved by the City in its sole and absolute discretion. In the event that the
Promissory Note has not been fully forgiven as of the Maturity Date,
Operator shall immediately pay any amounts due and owing on this
Promissory Note. A "Year" shall mean the period commencing the date of
the Certificate of Completion and ending each succeeding calendar year
thereafter.
d. Prepayment. The principal and interest on this Promissory Note is being
reduced solely upon the basis of services rendered by the Operator to the City
in accordance with the Agreement and Declaration of Covenants, and thus, this
Promissory Note may not be prepaid in whole or part without the written
consent of the City, in its sole and absolute discretion, and any permitted
prepayment shall not relieve Operator of its obligation to use the Site solely for
the purposes set forth in the Declaration of Covenants or the Agreement.
3. Security for Note. This Promissory Note is secured by a Deed of Trust executed by
Operator which creates a lien on the Site, including the Site, Project and Improvements thereon.
4. Acceleration Upon Certain Events or Upon Default. In the event of any
default under the terms of this Promissory Note, the Agreement, Declaration of Covenants, or under
the Deed of Trust, as the term is defined therein, or under any senior loans, notes or deeds of trust,
at the option of the City and after Notice to the Operator, providing Operator with thirty (30) days
in which to cure any default, and such default not having been cured within thirty (30) days, the
remaining balance of this Promissory Note shall immediately become due and payable without
further demand, dishonor, presentment, protest, or notice, all of which are hereby expressly waived
by Operator; provided that the City has not reacquired the Site as is further set forth the Agreement.
Failure of the City to exercise such options shall not constitute a waiver of the right to exercise
such rights in the event of any subsequent or continuing default. Any remaining balance of this
Promissory Note not paid within thirty (30) days of written notice from the City to the Operator
pursuant to this Section 4 shall accrue simple interest at a rate the lesser of. (i) three percent (3%),
or (ii) the maximum interest allowed by law.
In addition to any other default provided for in the Agreement, Declaration of Covenants,
or under the Deed of Trust, Operator will be in default herein should the Operator agree to or sell,
convey, transfer, or dispose of the Site described in the Deed of Trust securing this Promissory
ATTACHMENT 4-2
1470132.1
Note, or any part thereof, or interest therein, without first obtaining the prior written consent of
the City, which may be withheld in the City's sole and absolute discretion. Consent to one
transaction of this type will not constitute a waiver of the right to require consent to future or
successive transactions, nor shall this preclude any other remedies the City may have in law or
equity, including voiding such sale or transfer.
5. Default. Operator shall further be in default under this Promissory Note and the Deed
of Trust, if any of the following occur:
(a) Operator fails to pay any money when due under this Promissory Note (after
expiration of any applicable cure period);
(b) Operator breaches any agreement, representation, or covenant made in this
Promissory Note in any material respect;
(c) Operator files a petition for bankruptcy, either voluntarily or involuntary; or
(d) Operator dissolves or materially ceases to do business.
6. Costs Paid by Operator. If Operator is in default under this Promissory Note,
whether or not a suit is filed, Operator agrees to pay the following costs incurred by the City: (a)
reasonable costs, fees and expenses of collection, including attorneys' fees paid or incurred in
connection with the collection or enforcement of this Promissory Note; and (b) costs, fees and
expenses of suit in such sum as the court may adjudge reasonable, including attorneys' fees in
any action to enforce payment of this Promissory Note. Any such sums incurred under this Section
by the City shall be added to, and considered to be part of, the principal amount owed under this
Promissory Note.
7. Waiver. Operator hereby waives diligence, presentment, protest and demand,
notice of protest, dishonor and nonpayment of this instrument, and expressly agrees that, without
in any way affecting the liability of Operator hereunder, the City may extend any maturity date or
the time for payment of any installment due hereunder, accept additional security, release any party
liable hereunder or release any security now or hereafter securing this Promissory Note.
8. Indemnification. Operator shall indemnify, defend, protect and hold the City
harmless from and against any and all loss, damage, liability, action, cause of action, cost or
expense, including, without limitation, reasonable attorneys' fees and expenses incurred by the
City, arising as a result of any (i) fraud or material misrepresentation by the Operator under or in
connection with the Agreement or related agreements; (ii) intentional bad faith or waste of the Site
encumbered by the Deed of Trust; and (iii) losses resulting from Operator's failure to maintain
insurance as required under the provisions of the Deed of Trust, and the Agreement.
9. Severability. If any provision of this Promissory Note is determined by a court of
competent jurisdiction to be void or unenforceable, such determination shall not affect any other
provision of this instrument, and all other provisions hereof shall remain valid and in full force
and effect.
10. Non -Waiver. No delay in demanding or failure to demand performance
hereunder shall constitute a waiver by the City of its right to subsequently demand such
ATTACHMENT 4-3
1470132.1
performance or to exercise any other rights or remedies for any default hereunder. Further, in
order to be effective, any waiver of any of the City's rights and remedies hereunder must be
expressed in a writing signed by a duly appointed and authorized representative of the City.
11. Joint and Several Obligations. This Promissory Note is the joint and several obligations
of all makers, sureties, guarantors, and endorsers, and shall be binding upon them and their successors
and assigns.
12. Governing Law. This Promissory Note shall be construed in accordance with and be
governed by the laws of the State of California.
13. Time. Time is of the essence in this Promissory Note.
14. Amendments and Modifications. This Promissory Note may not be changed orally, but
only by an amendment in writing signed by Operator and the City.
15. Notices. All notices, and other communications made or required to be given
pursuant to this Promissory Note shall be in writing and shall be delivered pursuant to any notice as
permitted and provided under the Deed of Trust, the Agreement, or Declaration of Covenants.
FAMILY PROMISE OF ORANGE COUNTY, INC.,
a California non-profit corporation
Wo
Wo
1470132.1
Bernd Steinebrunner, President
Sue Currie, Secretary
ATTACHMENT 4-4
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , 2021, before me, , Notary Public,
personally appeared, who proved to me on the basis of satisfactory evidence to be the person(s) whose
name is subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
ATTACHMENT 4-5
1470132.1
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , 2021 before me, , Notary Public,
personally appeared, who proved to me on the basis of satisfactory evidence to be the person(s) whose
name is subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
ATTACHMENT 4-6
1470132.1
ATTACHMENT NO. 5
Deed of Trust
RECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Clerk
SPACE ABOVE RESERVED FOR RECORDER'S USE
No Fee document pursuant to Government Code Section 27383
DEED OF TRUST AND ASSIGNMENT OF RENTS
THIS DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is made
this day of , 2021, by FAMILY PROMISE OF ORANGE COUNTY, INC.,
a California non-profit corporation ("Operator") as trustor, to trustee
("Trustee"), for the benefit of the CITY OF TUSTIN, a municipal corporation (the "City").
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein
recited, the receipt of which is hereby acknowledged, Operator, hereby irrevocably grants,
transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit
and security of the City, under and subject to the terms and conditions hereinafter set forth,
Operator's fee interest in the property commonly known as 1941 El Camino Real, Tustin, California
92780, legally described as follows (the "Site"):
THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE
STATE OF CALIFORNIA, COUNTY OF ORANGE, City OF TUSTIN, AS
DESCRIBED AS FOLLOWS:
THE NORTHWESTERLY 230 FEET OF THE SOUTHEASTERLY 386
FEET OF THE NORTHEASTERLY 210 FEET OF THE
SOUTHWESTERLY 240 FEET OF THE SOUTH QUARTER OF LOT 29
IN BLOCK 12 OF IRVINE'S SUBDIVISION, AS SHOWN ON A MAP
RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORD
ATTACHMENT 5-1
1470132.1
MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. (APN 500-
071-12)
TOGETHER WITH all easements, rights-of-way and rights used in connection therewith or
as a means of access thereto; and
TOGETHER WITH any and all buildings or fixtures thereto, improvements and
landscaping of every kind and description now or hereafter erected thereon, and all property of
Operator now or hereafter affixed to or placed upon the Site (sometimes collectively referred to
as the "Improvements"); and
TOGETHER WITH all right, title and interest of Operator, now owned or hereafter
acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining
the Site, and any and all sidewalks, alleys and strips and areas of land adjacent to or used in connection
with the Site; and
TOGETHER WITH all estate, interest, right, title, or other claim or demand, of every
nature, in and to such property, including the Site, both in law and in equity, including, but not
limited to, all oil, gas and mineral rights (including royalty and leasehold rights relating thereto),
all water and water rights and shares of stock relating thereto, and any and all awards made for the
taking by eminent domain or by and proceeding or purchase in lieu thereof of the whole or any part
of such property.
All of the foregoing, together with the Site and any Improvements, is herein referred to as
the "Security".
The Security is for the purpose of securing that certain Promissory Note of the same date, in
the original principal amount of $ (the "Promissory Note") and any interest, or
any other amounts due, that may accumulate thereto, and
TO SECURE to the City the obligations and any payments required by that certain
Disposition and Development Agreement between the City and Operator, dated , 2020
("Agreement"), which Agreement is on file with the City, and incorporated herein by this reference;
and
TO SECURE to the City the performance by Operator of all agreements and adherence to all
conditions set forth herein and in any agreements conveying the Site from the City to Operator,
including the Grant Deed and Declaration of Covenants; and
TO SECURE all renewals, extensions, supplements and other modifications of any of the
foregoing, including without limitation modifications that are evidenced by new or additional
documents or that change the rate of interest on any obligation; and
ATTACHMENT 5-2
1470132.1
TO SECURE the payment of all other sums, with interest thereon, advanced in accordance
herewith, to protect the security of this Deed of Trust; and the performance of the covenants and
agreements of Operator herein contained.
All of the foregoing obligations, as well as those identified hereafter, are referred to
collectively herein as the "Operator Covenants."
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, Operator AND City
COVENANT AND AGREE AS FOLLOWS:
1. Purpose. Pursuant to the Agreement, the City has transferred the Site to Operator for
use as short-term transitional housing wherein Operator issued the Promissory Note in favor of the
City for the fair market value of the Site. The corresponding debt under the Promissory Note,
including accrued interest, is to be reduced by an amount of 1/30 for every Year that Operator uses
the Site and operates the Project pursuant to the Agreement, including compliance with the
Declaration of Restrictions and Covenants ("Declaration of Covenants") recorded against the Site.
This Deed of Trust secures the Promissory Note and any balances remaining going forward, plus any
accrued interest.
2. Operator's Estate. Operator represents and warrants that it is lawfully seized of
the estate hereby conveyed, that it has the right to grant and convey the Security, and that other
than this Deed of Trust, and the Agreement, the Security is not encumbered by any senior liens.
Operator agrees to warrant and defend generally the title to the Security against all claims and
demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions
to coverage in any title insurance policy insuring the City's interest in the Security.
3. Payment of Sums Owed. Operator shall promptly pay to the City any amounts when
due under the Agreement and Promissory Note.
4. Operator and Declaration of Covenants. Operator will observe and perform all of the
covenants and agreements of the Operator Covenants and Declaration of Covenants, as more
specifically contained therein.
5. Transfer of Site byOperator. Prior to expiration of the Maturity Date of the Promissory
Note, Operator agrees that Operator shall not sell or transfer the Security except as may be provided
in the Agreement, without the prior written consent of City, which the consent the City may withhold
in its sole and absolute discretion.
6. Liens. Operator shall not cause, incur, suffer or permit to exist or become effective
any lien, encumbrance or charge upon all or any part of the Site, including Improvements, or any
interest therein other than (i) easements, rights of way, covenants, conditions, restrictions, liens and
other title limitations as provided in the Agreement, or as approved in writing by City, which the
consent the City may withhold in its sole and absolute discretion, and (ii) immaterial easements and
rights of way which are required by governmental authorities as a condition to the use of the Security
ATTACHMENT 5-3
1470132.1
(collectively, the "Permitted Encumbrances"). Operator shall pay and promptly discharge, at
Operator's cost and expense, all liens, encumbrances and charges upon the Security, or any part thereof
or interest therein other than the Permitted Encumbrances. If Operator shall fail to remove and discharge
any such lien, encumbrance, or charge, then, in addition to any other right or remedy of the City, the
City may, but shall not be obligated to, discharge the same, without inquiring into the validity of such
lien, encumbrance or charge nor inquiring into the existence of any defense or offset thereto, either by
paying the amount claimed to be due, or by procuring the discharge of such lien, encumbrance or charge
by depositing in court a bond or the amount claimed, or otherwise giving security for such claim, in
such manner as is or may be prescribed by law. Operator shall, immediately upon demand by the City,
pay to the City an amount equal to all costs and expenses incurred by the City in connection with the
exercise by the City of the foregoing right to discharge any such lien, encumbrance or charge, together
with interest thereon from the date of such expenditure and, until paid, such sums shall be secured
hereby.
7. Preservation and Maintenance of Security. Operator agrees that at all times prior to
full payment of the sums owed under the Promissory Note or Agreement, Operator will, maintain,
preserve and keep the Security or cause the Security to be maintained and preserved in good condition
and repair and in a prudent and businesslike manner. Operator shall maintain insurance to keep the
Site adequately insured against loss by fire and such other hazards, casualties and contingencies as
may be required and all such insurance shall be evidenced by standard fire and extended coverage
insurance policy or policies. Such policies shall be endorsed with standard mortgage clause with loss
payable to the City and certificates thereof shall be deposited with the City.
8. Protection of City's Security.
a. If there is a Default, as defined hereafter, or if any action or proceeding is
commenced which materially affects the City's interest in the Security, then City, at its option and upon
notice to Operator, may make such appearances, disburse such sums and take such action as it determines
necessary to protect the City's interest, including but not limited to, disbursement of reasonable attorney's
fees and necessary repairs to the Security.
b. Any amounts disbursed by the City pursuant to Sections 7 and 8 herein, or any
other provision of this Deed of Trust or the Promissory Note, will become an indebtedness of Operator
secured by this Deed of Trust. Unless Operator and the City agree to other terms of payment, such
amount will be payable upon notice from the City to Operator as provided for in Section 17 herein
requesting payment thereof, and will bear interest at the rate of three (3) percent unless paid by Operator
within thirty (30) days of demand. Nothing contained in this Section will require the City to insure any
expense or take any action hereunder.
C. In the event that Operator fails to observe or perform any obligations or Operator
Covenants, then the City may hold Operator in default, treat the occurrence as a Default pursuant to this
Deed of Trust, and take any actions available under this Deed of Trust, Promissory Note, or the
Agreement, including, but not limited to, acceleration of any payments due or sale of the Security, as
provided for hereafter.
ATTACHMENT 5-4
1470132.1
9. Default. Each of the following shall constitute a "Default" under this Deed of Trust:
(1) the occurrence of any default or breach of a covenant or condition under the provisions of this
Deed of Trust, Promissory Note, Declaration of Covenants, or the Agreement; or (2) the failure to
make any payment or perform any of Operator's other obligations, covenants and conditions now or
hereafter secured by this Deed of Trust (subject to any applicable cure period).
10. Remedies Upon Default.
a. Curable Default. Upon a Default occurring, prior to acceleration of the sums
due under the Promissory Note, or satisfaction of any other indebtedness or performance of any other
obligations secured hereby, including any covenants and conditions in the Agreement, and
Declaration of Covenants, the City shall provide Notice as provided herein to Operator specifying:
the Default;
ii. if the Default is curable, the action required to cure such Default;
iii. a date, not less than thirty (30) days from the date the Notice is effective,
by which such Default, if curable, is to be cured; and
iv. if the Default is curable, the failure to cure such Default or breach of any
covenant or condition on or before the date specified in the notice, or any
extension of such time as agreed to in writing by the parties, may result in
acceleration of the sums due under the Promissory Note as secured by this
Deed of Trust, as well as sale of the Security (collectively, the "Notice of
Default").
b. Non -Curable Default. If the Default is not curable or is not cured on or before
the date specified in the Notice of Default, the City, at its option, may:
i. declare all of the sums secured by this Deed of Trust to be immediately
due and payable without further demand, dishonor, presentment, protest,
or notice, all of which are hereby expressly waived by Operator, and may
invoke the power of sale and any other remedies permitted by California
law;
ii. commence an action to foreclose this Deed of Trust as a mortgage, or
specifically enforce any of the covenants and conditions hereof,
iii. deliver to Trustee a written declaration of default and demand for sale,
pursuant to the provisions for notice of sale found at California Civil Code
Sections 2924, et seq., as amended from time to time; or
iv. exercise all other rights and remedies provided herein, the Promissory
Note, the Agreement, Declaration of Covenants, or in any other document
ATTACHMENT 5-5
1470132.1
or agreement now or hereafter evidencing, creating or securing all or any
portion of the obligations secured hereby; or provided by law.
C. No Waiver of Remedies. No omission on the part of the City to exercise any
options provided herein when entitled to do so shall be construed as a waiver of such right and any
remedies provided in this Deed of Trust are in addition to any other remedies the City may have under
the Agreement or Declaration of Covenants. The City shall be entitled to collect all reasonable costs
and expenses incurred in pursuing the remedies provided in this Section.
d. Reimbursement of Costs and Expenses.
Operator agrees to pay fees in the maximum amounts legally permitted, or
reasonable fees as may be charged by the City and the Trustee when the law
provides no maximum limit, for any services that the Trustee or the City may
render in connection with this Deed of Trust. Operator shall also pay or
reimburse all of the City's and Trustee's costs and expenses which may be
incurred in rendering any such services.
ii. Operator further agrees to pay or reimburse the City for all costs, expenses and
other advances which may be incurred or made by the City or Trustee to protect
or preserve the Site or Project or to enforce any terms of this Deed of Trust,
including, but not limited to, the exercise of any rights or remedies afforded to
the City or Trustee, or both of them, whether any lawsuit is filed or not, or in
defending any action or proceeding arising under or relating to this Deed of
Trust, including attorneys' fees and other legal costs, costs of any sale of the
Site or Project and any cost of evidence of title.
iii. Operator shall pay all obligations arising under this subsection immediately
upon demand by Trustee or the City.
iv. Any obligation of Operator to pay fees and costs of the City shall be added to,
and considered to be part of, the principal of the Promissory Note, and shall
bear interest from the date the obligation arises at the rate provided in such
instrument.
11. Foreclosure by Power of Sale. Should the City elect to foreclose by exercise of the power
of sale herein contained, City shall notify Trustee and shall deposit with Trustee this Deed of Trust, and
the Promissory Note., which is secured hereby (and the deposit of which shall be deemed to constitute
evidence that unpaid amounts due pursuant to the Promissory Note are immediately due and payable),
and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee
may require.
a. Upon receipt of such notice of election to foreclose from the City, Trustee shall
cause to be recorded, published and delivered to Operator the Notice of Default, as outlined above, and
City's notice of election to sell as then required by law and by this Deed of Trust. Trustee shall, without
demand on Operator, after lapse of such time as may then be required by law and after recordation of a
ATTACHMENT 5-6
1470132.1
Notice of Default and after Notice of Sale having been given as required by law, sell the Security, at the
time and place of sale fixed by it in said Notice of Sale at public auction to the highest bidder, for cash in
lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or
purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any
covenant or warranty, express or implied. The recitals in such deed or any matters of facts shall be
conclusive proof of the truthfulness thereof. Any person, including, without limitation Trustee or the City,
may purchase at such sale, and Operator hereby covenants to warrant and defend the title of such
purchaser or purchasers.
b. After deducting all reasonable costs, fees and expenses of Trustee, including costs
of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of:
(i) the unpaid amounts due pursuant to the Promissory Note_- (ii) all other sums then secured hereby, as
applicable; and (iii) the remainder, if any, to Operator.
C. Trustee may postpone sale of all or any portion of the Security by public
announcement at such time and place of sale, and from time to time thereafter, and without further notice
make such sale at the time fixed by the last postponement, or may, in its discretion, give a new Notice
of Sale.
12. Operator's Right to Reinstate. Notwithstanding the City's acceleration of the sums
secured by this Deed of Trust, or other actions taken in response to any Default, Operator shall have
the right to have any proceedings commenced by the City, to enforce this Deed of Trust, discontinued
at any time prior to five (5) days before sale of the Security pursuant to the power of sale contained
in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if:
a. Operator pays the City all sums which would be then due under this Deed of Trust,
or the Promissory Note, as applicable;
b. Operator cures all Defaults set forth in a Notice of Default;
Operator pays all reasonable expenses incurred by the City and Trustee in enforcing
the covenants and agreements of Operator contained in this Deed of Trust, and in
enforcing the City's and Trustee's remedies, including, but not limited to, reasonable
attorney's fees, as applicable; and
d. Operator takes such action as the City may reasonably require assuring that the lien of
this Deed of Trust, the City's interest in the Security and Operator's obligation to act
under the Agreement or Declaration of Covenants, or to pay the sums secured by this
Deed of Trust shall continue unimpaired.
Upon such payment and cure by Operator, this Deed of Trust and the obligations secured hereby
shall remain in full force and effect as if no acceleration had occurred.
ATTACHMENT 5-7
1470132.1
13. Forbearance by City Not a Waiver. Any forbearance by the City in exercising any
right or remedy shall not be a waiver of the exercise of any such right or remedy, nor shall acceptance
by the City of any payment provided for in the Promissory Note constitute a waiver of the City's right
to require prompt payment of any remaining amounts owed. The procurement of insurance or the
payment of taxes or other liens or charges by City shall not be a waiver of the City's right to accelerate
the maturity of the indebtedness secured by this Deed of Trust.
14. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and
cumulative to any other right or remedy under this Deed of Trust or any other document, including
the Agreement, Grant Deed, Declaration of Covenants, or Promissory Note-, or afforded by law or
equity, and may be exercised concurrently, independently or successively at the discretion of the City.
15. Reconvevance. Upon payment of all sums secured by this Deed of Trust, as set forth
in the Promissory Note, and compliance with the Agreement, City shall request Trustee to reconvey
the Security and shall surrender this Deed of Trust and the Promissory Note to Trustee. Trustee
shall reconvey the Security without warranty and without charge to the person or persons legally
entitled thereto. Such person or persons shall pay all costs of recordation, if any.
16. Substitute Trustee. The City, at its option, may from time to time remove Trustee and
appoint a successor trustee to any Trustee appointed hereunder. The successor trustee shall succeed
to all the title, power and duties conferred upon Trustee herein and by applicable law,
17. Notice. Any approval, disapproval, demand, document, or other form of notice
(collectively, "Notice"), which either Party may desire to give to the other Party, must be in writing
and delivered either personally, by a nationally recognized commercial delivery services (i.e., FedEx
or UPS), or by registered or certified mail with postage prepaid, that provides a receipt verifying the
date and time of delivery. Notices shall be directed to the address or addresses of the Party as set forth
below, or to any other address or addresses as that Party may later designate by Notice delivered in
accordance with this Section.
To: Tustin Housing Authority
300 Centennial Way
Tustin, California 92780
Attention: Executive Director
Phone: (714) 573-3117
Fax No.: (714) 669-0976
with a copy to: The City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Manager
Phone: (714) 573-3010
Fax No.: (714) 838-1602
ATTACHMENT 5-8
1470132.1
To Operator: Family Promise of Orange County, Inc.
310 West Broadway
Anaheim, California 92805
Attention: President/CEO
Phone: (714) 353-0428
Fax No.: (714) 787-3489
with a copy to: Managing Partner
Cummins & White
2424 South East Bristol, Suite 300
Newport Beach, CA. 92660
If required, a copy to: Home Aid Orange County,
Scott Larson I Executive Director
24 Executive Park, Suite 100
Irvine, CA 92614
Phone: (949) 777- 3865
Any Notice shall be deemed received immediately on the date delivered by hand or by a
commercial delivery services and shall be deemed received on the third day from the date it is
postmarked if delivered by registered or certified mail.
18. Joint and Several Liability. All covenants and agreements of Operator shall be joint
and several.
19. Nondiscrimination. Operator herein covenants by and for itself, its heirs, executors,
administrators, and assigns, and all persons claiming under or through them, that it shall comply with
all applicable federal and state laws and regulations prohibiting discrimination by Operator in the
selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees
in the Site. The foregoing covenants shall run with the land.
20. Governing Law. This Deed of Trust shall be governed by the laws of the State of
California.
21. Severability. Every provision of this Deed of Trust is intended to be severable. In the
event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by
a court or other body of competent jurisdiction, such illegality or invalidity shall not affect the
balance of the terms and provisions hereof, which terms and provisions shall remain binding and
enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or
if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured
portion of the debt, and all payments made on the debt, whether voluntary or under foreclosure or
other enforcement action or procedure, shall be considered to have been first paid or applied to the
full payment of that portion of the debt which is not secured or partially secured by the lien of this
Deed of Trust.
ATTACHMENT 5-9
1470132.1
22. Further Assurances. Operator, upon the request of Trustee, will execute,
acknowledge, deliver and record and/or file such further instruments and do such further acts as may
be necessary, desirable or proper to carry out more effectively the purpose of this Deed of Trust and
to subject to the liens hereof any property intended by the terms hereof to be covered thereby,
including specifically but without limitation, any renewals, additions, substitutions, replacements,
betterments or appurtenances to the then secured Site.
23. Covenants Running with the Land. All obligations contained in this Deed of Trust,
and documents referenced herein are intended by the parties to be, and shall be construed as,
covenants running with the Site.
24. Modification. This Trust Deed and documents referenced herein contain the entire
agreements between the parties relating to the subject matter of the Site and all prior agreements
relative thereto which are not contained therein are terminated. This Trust Deed may only be
amended, revised, waived, discharged, released or terminated by a written instrument executed by
all parties. Any alleged amendment, revision, waiver, discharge, release or termination which is not
so documented shall not be effective as to any party.
25. Assignment of Rents. To further secure the full and timely payment of all obligations
under this Deed of Trust, Grant Deed, Declaration of Covenants, or Promissory Note, Operator
hereby grants to the City a security interest in all the rights of Operator as landlord and all other
rights, titles and interests, in, to and under any leases for the Site, and all rents that arise, accrue or
are derived from the Site, whether or not pursuant to any lease. A demand on any tenant by the City
for the payment of rent shall be sufficient to warrant said tenant to make future payments of rent to
the City without the necessity of any consent by Operator. Upon or at any time during the
continuance of a Default, Operator shall deliver to City all amounts received by Operator under the
leases and Beneficiary shall have the right to apply all amounts it receives with respect to the leases
(regardless of whether the City receives such amounts from Operator, the tenants. or otherwise) to
the payment, in any order or manner at its sole discretion, to cure the Default.
THE CITY SHALL NOT BE OBLIGATED TO PERFORM OR DISCHARGE, NOR DOES
IT HEREBY UNDERTAKE TO PERFORM OR DISCHARGE, ANY OBLIGATION, DUTY OR
LIABILITY UNDER ANY LEASE FOR THE PROPERTY, OR UNDER OR BY REASON OF
THIS DEED OF TRUST, AND OPERATOR SHALL AND DOES HEREBY AGREE TO
DEFEND, INDEMNIFY AND HOLD THE CITY HARMLESS FOR AND FROM ANY AND ALL
LIABILITY, LOSS OR DAMAGE WHICH IT MAY OR MIGHT INCUR UNDER ANY CLAIM
ARISING FROM OR RELATING TO ANY TENANT OR LEASE OF THE PROPERTY, OR
UNDER OR BY REASON OF THIS SECTION AND OF AND FROM ANY AND ALL CLAIMS
AND DEMANDS WHATSOEVER WHICH MAY BE ASSERTED AGAINST IT BY REASON
OF ANY ALLEGED OBLIGATIONS OR UNDERTAKINGS ON ITS PART TO PERFORM OR
DISCHARGE ANY OF THE TERMS, COVENANTS OR AGREEMENTS CONTAINED IN ANY
OF THE LEASES OR THIS DEED OF TRUST. IF THE CITY INCURS ANY SUCH LIABILITY,
LOSS OR DAMAGE HEREUNDER BY REASON OF THIS SECTION, OR IN THE DEFENSE
OF ANY SUCH CLAIMS OR DEMANDS, THE AMOUNT THEREOF, INCLUDING ALL
ATTACHMENT 5-10
1470132.1
COSTS, EXPENSES AND REASONABLE ATTORNEYS' FEES, SHALL BE SECURED
HEREBY, AND OPERATOR SHALL REIMBURSE THE CITY IMMEDIATELY UPON
DEMAND.
26. Captions. The captions and headings in this Deed of Trust are for convenience only
and are not to be used to interpret or define the provisions hereof
27. Exhibits. Any exhibits referred to in this Deed of Trust are incorporated herein by
such reference.
IN WITNESS WHEREOF, Operator has executed this Deed of Trust as of the date first
written above.
TRUSTOR/OPERATOR:
FAMILY PROMISE OF ORANGE COUNTY, INC.,
a California non-profit corporation
WE
1470132.1
Bernd Steinebrunner, President
Sue Currie, Secretary
ATTACHMENT 5-11
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On , 2021, before me, , Notary Public,
personally appeared, who proved to me on the basis of satisfactory evidence to be the person(s) whose
name is subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
ATTACHMENT 5-12
1470132.1
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On , 2021, before me, , Notary Public,
personally appeared, who proved to me on the basis of satisfactory evidence to be the person(s) whose
name is subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
ATTACHMENT 5-13
1470132.1
ATTACHMENT NO. 6
Certificate of Completion
CERTIFICATE OF COMPLETION OF
CONSTRUCTION AND DEVELOPMENT
This CERTIFICATE OF COMPLETION OF CONSTRUCTION AND DEVELOPMENT
(the "Certificate of Completion") is made by the CITY OF TUSTIN, a municipal corporation
("Tustin") and TUSTIN HOUSING AUTHORITY, a local housing authority ("Authority"), in
favor of FAMILY PROMISE OF ORANGE COUNTY, INC., a California non-profit corporation
(the "Operator"), as of the date set forth below.
RECITALS
A. The City and Operator have entered into that certain Disposition and Development
Agreement dated , 2020 (the "DDA") concerning the development of
certain real property at 1941 El Camino Real, Tustin, California 92780, legally described as
follows (the "Site"):
THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN
THE STATE OF CALIFORNIA, COUNTY OF ORANGE, City
OF TUSTIN, AS DESCRIBED AS FOLLOWS:
THE NORTHWESTERLY 230 FEET OF THE
SOUTHEASTERLY 386 FEET OF THE NORTHEASTERLY 210
FEET OF THE SOUTHWESTERLY 240 FEET OF THE SOUTH
QUARTER OF LOT 29 IN BLOCK 12 OF IRVINE'S
SUBDIVISION, AS SHOWN ON A MAP RECORDED IN BOOK
1, PAGE 88 OF MISCELLANEOUS RECORD MAPS, RECORDS
OF ORANGE COUNTY, CALIFORNIA.
(APN 500-071-12)
B. As required by the DDA in Section 4.4 and elsewhere, Tustin and the Authority
(collectively, the "City") is required to furnish the Operator with this Certificate of Completion
upon completion of construction of the Improvements, inclusive of the issuance of a Certificate of
Occupancy by the City for the Project. This Certificate of Completion is conclusive determination
of satisfactory completion of the construction and development of the Improvements and
completion of the Project as required by the DDA.
ATTACHMENT 6-1
1470132.1
NOW THEREFORE:
1. As provided in the DDA, the City does hereby certify that the construction of the
Improvements has been satisfactorily performed and completed in conformance with the DDA.
2. This Certificate of Completion does not constitute evidence of compliance with or
satisfaction of any obligation of Operator to any holder of a mortgage or any insurer of a mortgage
security, or money loaned to finance the work of construction of Improvements and development
of the Site, or any part thereof. This Certificate of Completion is not a notice of completion as
referred to in Section 3093 of the California Civil Code.
IN WITNESS WHEREOF, the City has executed this Certificate as of this day of
20
CITY OF TUSTIN, a municipal corporation,
Loan
Matthew S. West, City Manager
ATTEST:
W.
Erica N. Yasuda, City Clerk
APPROVED AS TO FORM:
David E. Kendig, City Attorney
Housing Authority General Counsel
ATTACHMENT 6-2
1470132.1
ATTACHMENT NO. 7
Declaration of Covenants and Restrictions
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Clerk
SPACE ABOVE RESERVED FOR RECORDER'S USE
This document is exempt from recording fee pursuant to Government Code §§ 6103 and 27383
DECLARATION OF COVENANTS AND RESTRICTIONS
This DECLARATION OF COVENANTS AND RESTRICTIONS ("Declaration of
Covenants") is made as of this day of 2021, by and between FAMILY
PROMISE OF ORANGE COUNTY, INC., a California non-profit corporation ("Operator"),
the CITY OF TUSTIN, a municipal corporation ("Tustin") and the TUSTIN HOUSING
AUTHORITY, a local housing authority ("Authority"), with reference to the following facts:
A. Tustin and the Authority (collectively and individually, hereinafter, the "City") is
the previous owner of that certain real property at 1941 El Camino Real, City of Tustin, County of
Orange, designated as Assessor's Parcel Number 500-071-12, consisting of approximately 16,550
square feet and legally described in Exhibit A, which is incorporated herein (the "Site").
B. The City and Operator have entered into that certain Disposition and Development
Agreement dated 2020 concerning the development of the Site (the
"Agreement").
C. As a material condition and consideration for entering into the Agreement,
among other things, the City sold the Site to Operator and Operator agreed to develop and operate
the Site exclusively for short-term transitional housing with an associated community resource
center for a period of at least 55 years.
D. Pursuant to the Agreement, among other things, Operator executed a promissory
note in favor of the City in the amount of ($ )
("Promissory Note") secured by a Deed of Trust and Assignment of Rents (the "Deed of Trust").
ATTACHMENT 7-1
1470132.1
E. As a material condition and consideration for entering into the Agreement, the
City agreed to accept the Promissory Note and Deed of Trust from the Operator for the Site on
the condition that the Site be continually and exclusively maintained and operated in
accordance with covenants and restrictions concerning the operation and maintenance of the
Project (defined below) as specified herein and the Scope of Services and Placement Criteria,
respectively attached hereto as Exhibit B and Exhibit C, which are incorporated herein by
this reference.
F. The following covenants and restrictions are recorded against the Site and Project
as material consideration for the City entering into the Agreement.
NOW, THEREFORE, the City and Operator hereby declare that the following express
restrictions and covenants are to be taken and construed as running with the Site and Project,
including as set forth in California Civil Code section 1460, and, except as set forth below, shall
pass to and be binding upon Operator and its successors, assigns, heirs, grantees or lessees to the
of Project, or any part thereof, from the date of when a Certificate of Occupancy by the City is
issued for the Project and ending fifty-five (55) years thereafter (the Covenant Period) as
evidenced by and within the Certificate of Project Covenant Period.
Section 1. Definitions.
The following definitions shall apply in this Declaration of Covenants and all other
capitalized terms used, but not defined herein, shall have the meanings given to them in the
Agreement:
(a) "Deed of Trust" shall mean that certain Deed of Trust dated ,_, 20
executed by Operator, as trustor, in favor of the City, as beneficiary, securing
Operator's obligations under the Promissory Note and recorded against the Project.
(b) "Director" shall mean the Executive Director of the Housing Authority, or as
otherwise designated by the City.
(c) "Gross Income" shall mean as the term is defined by California Code of Regulations
Title 25, §6914 as the anticipated income of a person or family for the twelve-month
period following the date of determination of income. To make the projection, "a
`snapshot' of the household's current circumstances is used to project future income.
Today's circumstances should be assumed to continue for the next 12 months unless
there is verifiable evidence to the contrary."
(d) "Indemnified Parties" shall have the meaning set forth in Section 10 of this
Declaration of Covenants.
(e) "Maximum Rental Rate" shall mean a monthly Rent for a Unit that does not exceed
thirty percent (30%) of the Gross Incomes of the Qualified Family.
(f) "Project" shall mean the Site and all associated Improvements built upon the Site
that are required by the Agreement and to be operated by Operator in conformity
with the Agreement, Deed of Trust, and this Declaration of Covenants, including
but not limited to, any related offsite improvements, all recreational and common
area improvements, resource center, residential units, landscaping, parking and
related improvements, as the same may from time to time exist on the Site.
ATTACHMENT 7-2
1470132.1
(g) "Project Documents" means, collectively, this Agreement, the Declaration of
Covenants, the Deed of Trust, the Promissory Note, all other Attachments to this
Agreement, and any other agreement, document, or instrument that are required in
connection with the execution of this Agreement, or from time to time to effectuate
the purposes of the Agreement, including the Project Plans.
(h) "Qualified Family/Qualified Families" shall mean a family qualified to live in a
Unit as provided for herein and as further set forth in the Placement Criteria in
Exhibit C attached hereto, with such criterion for selection as may be amended from
time -to -time in writing by the Operator upon approval in writing by the Director in
his or her sole discretion, and such selection criteria may further be amended from
time -to -time in the Director's reasonable discretion. The paramount factor for any
selection criteria shall be occupancy of the Project is the verified need for housing
with preference given first and foremost to homeless families with direct ties to the
City and secondarily to households with the lowest level of income, taking into
account reasonable adjustments for smaller and larger families, but in no event shall
a Qualified Family consist of a household whose household income is eighty -
percent (80%) over the Orange County Annual Median Income. Homeless families
for the purposes of this Declaration of Covenants shall mean families that either
currently either lack shelter, or have shelter that is so inadequate, temporary, or
insecure that the situation threatens the social, psychological, or physical health of
the family and do not have the financial means to immediately secure shelter for
the family. Unless otherwise agreed to in writing by the Director, a "Qualified
Family" must comprise of at least one minor child accompanied by an adult who
is a parent, or legal or de facto guardian of such child and who have resided
together as a unit immediately prior to seeking housing at the Project.
(i) "Rent" shall mean the total of monthly payments by the Qualified Family for
occupancy of a Unit and for any and all social assistance programs or services that
may be provided to a Qualified Family in connection with the Project, including,
but not limited to, fees and charges for the following: (a) use and occupancy of the
Unit, common areas, associated physical facilities, and parking; (b) any
educational, welfare, health or other social program that would otherwise be
charged to a Qualified Family if not occupying a Unit; and (c) any other separately
charged fees or service charges assessed by the Operator, which are required of all
Qualified Families, other than security deposits. Rent shall be determined in an
amount to allow for the cost of participation in any social assistance programs or
services provided in connection with the Project and an adequate and reasonable
level of service for utilities, including garbage collection, sewer, water, electricity,
gas and other heating, cooking, refrigeration or fuel, but not telephone service or
cable TV; common area maintenance, and to cover the costs of any other interest,
taxes, fees or charges for use of the land or associated facilities and assessed by a
public or private entity other than the Operator. Rent for a Unit shall not exceed the
Maximum Rental Rate.
ATTACHMENT 7-3
1470132.1
(j) "Scope of Services" means the final approved Scope of Services submitted by the
Operator approved in writing by the City, attached hereto as Exhibit `B" and
incorporated herein by this reference, and as may be amended.
(k) "Short -Term Transitional Housing" means the provision of short-term transitional
housing for a Qualified Family for the Scope of Services and per the Placement
Criteria, respectively set forth in Exhibit `B" and Exhibit "C" attached hereto, but
with requisite goal of the Qualified Family transitioning out of the Project within
3 to 6 months from the beginning of the assistance and in no event, shall any
occupancy at the Project by a Qualified Family exceed 12 months unless otherwise
approved by the City in writing.
(1) "Term" shall mean the term of this Declaration of Covenants, which shall be set
forth in the Certificate of Qualified Project Period to be recorded by the Parties.
(m) "Unit" shall mean any one of the seven (7) residential housing units comprising
the Project existing on the Site to be occupied by a Qualified Family.
Section 2. Residential Use.
The Project shall be operated continually and solely for Short -Term Transitional
Housing during the Term by Qualified Families.
Section 3. Occupancy of Units. The Operator covenants and warrants to the City the
following:
(a) No Unit shall be used or occupied by any person that has a familial, business, or
other economic relationship with Operator, it employees, or officers.
(b) No Unit shall be used or occupied by any person(s) other than a Qualified Family
for Short -Term Transitional Housing.
(c) No Unit shall be occupied by a Qualified Family for more than one (1) year.
(d) No Unit shall be occupied by more than two persons per bedroom plus one.
(e) The Project shall be operated at all times in compliance with all applicable
provisions existing at the time of. (a) the Unruh Act, (b) the United States Fair
Housing Act, as amended, excluding 42 U.S.C. Section 3607(a) and 24 CFR 100;
(c) the California Fair Employment and Housing Act, Government Code Section
12900 et seq. and (d) any other applicable law or regulation (including the
Americans With Disabilities Act, to the extent applicable to the Project)
(collectively, the "Housing Statutes"). Operator agrees to indemnify, protect,
hold harmless and defend (by legal counsel reasonably satisfactory to the City),
the City and its board members, officers and employees, from all suits, actions,
claims, causes of action, costs, demands, judgments and liens arising out of
Operator's failure to comply with applicable legal requirements of the Housing
ATTACHMENT 7-4
1470132.1
Statutes. The provisions of this subsection shall survive expiration of the Term,
and shall remain in full force and effect.
(f) Upon a Qualified Family failing to meet the definition of a Qualified Family,
then Operator shall immediately provide to the Qualified Family reasonable
notice, or notice as required by law, to vacate the Unit and use due diligence to
cause the Qualified Family to vacate the Unit. Operator shall develop and
implement appropriate verification procedures to ensure all Units of the Project
are continually occupied and used by a Qualified Family. If requested by the
City, Operator shall provide the City with a copy of its written verification
procedures.
Section 4. Allowable Rent.
A Qualified Family occupying a Unit will be charged a monthly Rent or Program Fee based
on their income. In no event, shall any monthly Rent and Program Fee combined to be charged to
a Qualified Family for a Unit exceed the Maximum Rental Rate of more than 30% of their gross
income.
Section 5. Termination of Occunancv.
Upon termination of any occupancy of a Unit, Operator shall seek to find a new occupant
for such Unit as soon as is reasonably possible in compliance with the Placement Criteria, attached
hereto (Exhibit C), or as otherwise amended.
Section 6. Records.
Operator shall maintain complete, accurate and current records, information and materials
pertaining to the Project sufficient to support a detailed and customary in the industry an annual and
fiscal performance report as provided for in Section 7 herein and shall permit any duly authorized
representative of the City to inspect such records upon the City providing five (5) days' written
Notice to Operator. All such records and information shall at all times be kept separate and
identifiable from any other business of Operator and shall be maintained in a reasonable condition
for proper audit and subject to examination at the Site during normal business hours by
representatives of City. Operator shall retain copies of all such records, information and materials
for a period of at least five (5) years.
Section 7. Performance.
Operator shall fulfill the reporting requirements specified in this Declaration of Covenants
for the full Term, unless otherwise specifically provided in a writing recorded by the Parties hereto,
and, at a minimum, perform the following:
(a) Operator shall complete and submit an Annual Performance Report ("APR")
Information Form prepared by the Operator on an annual basis no later than 90 days
after its end of tax year. The APR Information Form shall consist of a cumulative
reporting of project -related accomplishments relative to the attached Placement
Criteria and Scope of Services and provide information as reasonably practical that
is consistent with City of Tustin transitional housing guidelines as established by
the City and Director, which by way of example such reporting shall at a minimum
include the information set forth in Sample Transitional Housing Report attached
ATTACHMENT 7-5
1470132.1
hereto and incorporated herein by reference as Exhibit D. Operator
acknowledges that the APR Information Form, is a monitoring tool that will be
reviewed and evaluated to determine Operator's level of accomplishments relative
to this Declaration of Covenants.
(b) Within six (6) months after the end of Organization's fiscal year, Organization shall
provide to City a copy of Organization's audited, if available, or reviewed financial
statements.
(c) The City shall be entitled to monitor the performance of Operator and the Operator
shall provide access to the Project and such information regarding its operations of
the Project to ensure Operator's compliance with its approved Scope of Services.
Non-compliance with the Scope of Services, as reasonably determined by the City,
and failure to use the Units for Qualified Families, will constitute non-compliance
with this Declaration of Covenants, and shall be considered a Default under the
Project Documents, entitling the City to exercise the remedies provided therein.
(d) In addition to the APR, the Director may require more frequent periodic reports
regarding the operation of the Project, including, but not limited to, by way of
example, financial statements, or monthly reports on the demographics of the
families utilizing the Project and its services.
(e) The City and Operator acknowledge that formatting or information requested on
any report may be changed from time to time by the City and the City will notify
Operator of such changes and provide updated requirements.
(f) Beginning five (5) years after the recording of this Declaration of Covenants and
thereafter, no less than five (5) years after its most recent demand, the City shall
have a right to demand a financial audit to be conducted by Operator at Operator's
sole cost and expense, wherein Operator shall complete the audit and provide the
results of such audit to the City in a timely and reasonable manner. If in the City's
sole determination any substantive fraud or misrepresentation is discovered by the
audit, the City shall have the right to demand annual audits of Operator at
Operator's cost and expense until the City reasonably believes the deficiencies have
been remedied. At any time, the City has concerns about the Operator's finances,
the City and its authorized representatives shall have the right to conduct a financial
audit and examine the Operator at the City's initial cost and expense. In this regard,
the Operator shall make copies of or extracts from all financial and related records
(in whatever form they may be kept, whether written, electronic, or other) kept by,
or under the direction or control of the Operator relating or pertaining to the
business and operations of the Operator. If the financial audit conducted by the
City discovers substantive findings of fraud or misrepresentation, the Operator shall
immediately reimburse the City upon written demand for all costs and fees related
to the audit. In addition, the City shall have the right to demand annual audits of
the Operator at the Operator's expense until the City reasonably believes the
deficiencies have been remedied.
ATTACHMENT 7-6
1470132.1
Section 8. On -Site Inspection.
The City shall have the right to perform an on-site inspection of the Project, including the
interior of the Units and in, on and about the entire Site upon five (5) business days' written notice
and as a condition of occupancy of any Unit, each Qualified Family shall agree to permit the City
to inspect a Unit as provided herein and notify the Qualified Family of and have the Qualified
Family agree to the assignment of Rents provision in the Deed of Trust. Operator agrees to
cooperate in the inspection of the Project, including the Site and Units.
Section 9. Property Operations and Maintenance, Compliance with Law and
Insurance.
Operator agrees, for the entire Term of this Declaration of Covenants to operate, and
maintain the Site and Project in a good and a first-class condition. It shall constitute an event of
Default herein if Operator fails to do so as to the Site and Project, and if such Default continues for
a period of thirty (30) days after written notice from the City with respect to graffiti, debris, waste
material, general maintenance, or other condition that the City determines in its reasonable discretion
to constitute a nuisance, or sixty (60) days after written notice from the City with respect to any other
condition of the Site or Project, including, but not limited to, any environmental hazards, violations
of the California Building Code and ADA requirements, landscaping, and building improvements
(interior, exterior, superficial, or structural), then the City, in addition to whatever other remedy it
may have at law or in equity, shall have the right to enter upon the Site and perform or cause to be
performed all such acts and work necessary to cure the Default. Pursuant to such right of entry, the
City shall be permitted (but is not required) to enter upon the Site and perform all acts and work
necessary to protect, maintain, and preserve the improvements and landscaped areas on the Site, to
assess the Site and Project for the costs of such work, and to attach a lien on the Site. Operator shall
promptly pay to the City, as applicable the amount of the expenditures arising from such acts and
work of protection, maintenance, and preservation by the City and/or costs of such cure, which
amount shall be promptly paid by the Operator to the City upon written demand. Nothing herein
shall limit any other rights and remedies the City may have under the Project Documents.
Operator shall at all times maintain property damage insurance covering the Project, which
includes the Improvements thereon, in an amount of not less than the replacement cost of the Project.
Such insurance shall be issued by an insurance company authorized to do business in the State of
California with a current A.M. Best's rating of no less than A-, VII. Operator shall provide the City
with certificates of insurance evidencing that this coverage is in full force and effect. In the event
any such insurance lapses or is modified, Operator shall immediately notify the City. Failure to
maintain insurance as required herein shall constitute a Default of this Declaration of Covenants and
the Agreement.
Section 10. Indemnity.
To the fullest extent permitted by law, the Operator agrees to indemnify, hold harmless and
defend the City and its elected officials, officers, employees, attorneys and agents (collectively, the
"Indemnified Parties"), from and against any and all losses, damages, claims, actions, liabilities,
costs and expenses of any and every conceivable nature, kind or character (including, without
limitation, reasonable attorneys' fees, litigation and court costs, amounts paid in settlement and
amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become
subject to under any statutory law (including federal or state securities laws) or at common law or
otherwise, arising out of or based upon or in any way relating to:
ATTACHMENT 7-7
1470132.1
(a) This Declaration of Covenants or the execution or amendment thereof or in
connection with the transactions contemplated thereby;
(b) Operator's ownership or operation of the Project or any act or omission of the
Operator or any of its agents, contractors, servants, employees or licensees in
connection with the Project, the operation of the Project, or the condition,
environmental or otherwise, occupancy, use, possession, conduct or management of
work done in or about, or from the planning, design, acquisition, installation,
operation or rehabilitation of, the Project or any part thereof,
(c) Any violation of any environmental law, rule or regulation with respect to, or the
release of any toxic substance from, the Project or any part thereof, except to the
extent such damages are caused by the gross negligence or willful misconduct of such
Indemnified Party. In the event that any action or proceeding is brought against any
Indemnified Party with respect to which indemnity may be sought thereunder, the
Operator, upon written notice from the Indemnified Party, shall assume the
investigation and defense thereof, including the employment and payment for of
counsel selected by the Indemnified Party, and shall assume the payment of all
expenses related thereto, with full power to litigate, compromise or settle the same;
provided that the Indemnified Party shall have the right to review and approve or
disapprove any such compromise or settlement.
Section 11. Management ReMonsibilities.
Operator is solely responsible, subject to its obligations set forth herein and the Agreement,
for all management functions with respect to the Project, including without limitation the selection
of Qualified Families, evictions, collection of rents and deposits, maintenance, landscaping,
routine and extraordinary repairs, replacement of capital items, and security. Operator shall
provide supportive services on an as -needed basis as described in the Scope of Services. The City
shall have no responsibility over management of the Project.
Section 12. Prohibited Activity/Non-Discrimination.
Operator covenants by and for itself, its heirs, executors, administrators, and assigns, and
all persons claiming under or through them, that it shall comply with all applicable federal and state
laws and regulations prohibiting discrimination by Operator in the selection, location, number, use,
or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property. The foregoing
covenants shall run with the land.
Section 13. Compliance with Terms of the Proiect Documents.
Operator shall comply with all the terms and provisions of the Project Documents.
Section 14. Declaration of Covenants Run with the Land. Each and every contract, deed,
lease, or other instrument covering or conveying the Site or Project, or any portion thereof, shall
conclusively be held to have accepted and been executed and delivered subject to this Declaration
of Covenants, be subject to the covenants and restrictions contained herein regardless of whether
such covenants and restrictions are set forth in such contract, deed, lease or other instruments, and
to greatest extent possible as permitted by law run with the land.
ATTACHMENT 7-8
1470132.1
Section 15. Default and Enforcement by City.
If Operator fails to perform any obligation or violates any warranty, covenant, or restriction
under this Declaration of Covenants including, but not limited to Sections 2, 3, 4, 7, 9, 12 and 13,
it shall constitute a "Default." If the City in its reasonable discretion determines that the Default
is curable and Operator fails to cure the Default within thirty (30) days after the City has given
Notice to Operator of the Default, or in the reasonable determination by the City, Operator has not
immediately, with due diligence, commenced to cure, correct or remedy the specified Default and
shall be capable of completing such cure, correction, or remedy with diligence, the City shall have
the right to proceed with any and all remedies set forth in this Declaration of Covenants and/or the
Project Documents or otherwise available at law or in equity or by statute (and all of the City's
rights and remedies shall be cumulative), and including, but not limited to the following:
(a) Power of Termination. The Parties acknowledge that the Site is being conveyed to
Operator by the Grant Deed on the condition that it shall be used in compliance
with the Declaration of Covenants, which includes use by Qualified Families for
Short -Term Transitional Housing, and if this use is discontinued and Operator is in
Default under the Declaration of Covenants, after any applicable period of cure, the
City shall have the power to terminate all right, title, and interest in the Site in the
manner provided by law in exercising such power of termination; provided that this
provision does not preclude the Parties from at some point in the future modifying
the use of the Site and Project upon written amendment to this Declaration of
Covenants.
(b) Acceleration of Promissory Note. Upon default under the Project Documents, and
after expiration of any allowable period to cure such default, the City shall have the
right to cause all indebtedness of the Operator to the City under the Promissory Note,
together with any accrued interest thereon, to become immediately due and payable;
provided that the remedy of acceleration of the Promissory Note shall only be
available if (1) the City does not exercise its Power of Termination; and (2) the City
first makes demand upon Operator to re -convey the Site and Project to the City and
Operator fails to do so within ninety (90) days of such demand. Operator waives all
right to presentment, demand, protest or notice of protest, or dishonor. The City may
proceed to enforce payment of the indebtedness and to exercise any or all rights
afforded to the City as a creditor and secured party under the law, including the
Uniform Commercial Code or foreclosure under the Deed of Trust. The Operator
shall be liable to pay the City on demand all expenses, costs and fees (including,
without limitation, attorneys' fees and expenses) paid or incurred by the City in
connection with the collection on the Promissory Note and the preservation,
maintenance, protection, sale, or other disposition of the security given under the
Promissory Note.
(c) Specific Performance. The City shall have the right to mandamus or other suit,
action or proceeding at law or in equity to require Operator to perform its
obligations and covenants under this Declaration of Covenants and/or the Project
Documents or to enjoin acts on things which may be unlawful or in violation of the
provisions of this Declaration of Covenants and/or the Project Documents.
(d) Right to Cure at Operator's Expense. The City shall have the right to cure any
monetary default by Operator under this Declaration of Covenants. Operator agrees
ATTACHMENT 7-9
1470132.1
to reimburse the City for any funds advanced by the City to cure a monetary default
by Operator upon demand therefore, together with interest thereon at the rate of
three percent (3%) per annum or the maximum rate permitted by law, whichever
rate is less, from the date of expenditure until the date of reimbursement.
(e) Remedies Cumulative. No right, power, or remedy given to the City by the terms
of this Declaration of Covenants or the Project Documents is intended to be
exclusive of any other right, power, or remedy; and each and every such right,
power, or remedy shall be cumulative and in addition to every other right, power,
or remedy given to the City by the terms of any such instrument, or by any statute
or otherwise against Operator and any other person. Neither the failure nor any
delay on the part of the City to exercise any such rights and remedies shall operate
as a waiver thereof, nor shall any single or partial exercise by the City of any such
right or remedy preclude any other or further exercise of such right or remedy, or
any other right or remedy; provided that City shall exercise such remedies in the
order described in Paragraph 15(b) above.
(f) Waiver of Terms and Conditions. No waiver of any Default or breach by Operator
hereunder shall be implied from any omission by the City to take action on account
of such Default if such Default persists or is repeated, and no express waiver shall
affect any Default other than the Default specified in the waiver, and such waiver
shall be operative only for the time and to the extent therein stated. Waivers of any
covenant, term, or condition contained herein shall not be construed as a waiver of
any subsequent breach of the same covenant, term, or condition. The consent or
approval by the City to or of any act by Operator requiring further consent or
approval shall not be deemed to waive or render unnecessary the consent or approval
to or of any subsequent similar act. The exercise of any right, power, or remedy shall
in no event constitute a cure or a waiver of any default under this Declaration of
Covenants or the Project Documents, nor shall it invalidate any act done pursuant to
a Notice of Default, or prejudice the City in the exercise of any right, power, or
remedy hereunder or under the Project Documents, unless in the exercise of any
such right, power, or remedy all obligations of Operator to the City are paid and
discharged in full.
If Operator fails to perform any obligation or violates any warranty, covenant or restriction
under this Declaration of Covenants, and if in the sole and absolute discretion of the City, the
Default is not curable as determined solely by the City, the City shall have the right to immediately
proceed with any and all remedies set forth above and/or the Project Documents or otherwise
available at law or in equity or by statute (and all of the City's rights and remedies shall be
cumulative).
Section 16. Attornevs' Fees and Costs.
In any action brought to enforce this Declaration of Covenants, the prevailing party shall
be entitled to all costs and expenses of suit, including reasonable attorneys' fees. This section
shall be interpreted in accordance with California Civil Code Section 1717 and judicial decisions
interpreting that statute.
Section 17. Recording and Filing.
ATTACHMENT 7-10
1470132.1
City and Operator shall cause this Declaration of Covenants, and all amendments and
supplements to it, to be recorded in the Official Records of the County of Orange.
Section 18. Governing Law and Jurisdiction.
This Declaration of Covenants shall be governed by the laws of the State of California
and jurisdiction for any action shall be with the Superior Courts of the County of Orange.
Section 19. Waiver of Requirements.
Any of the requirements of this Declaration of Covenants may be expressly waived by City
only in writing, but no waiver by City of any requirement of this Declaration of Covenants shall,
or shall be deemed to, extend to or affect any other provision of this Declaration of Covenants.
Section 20. Amendments.
This Declaration of Covenants may be amended only by a written instrument executed
by all the parties hereto or their successors in title, and duly recorded in the real property records
of County of Orange.
Section 21. Notices
Any approval, disapproval, demand, document or other form of notice (collectively,
"Notice") which either Party may desire to give to the other Party under this Agreement must be
in writing and delivered either personally, by a nationally recognized commercial delivery services
(i.e., FedEx or UPS), or by registered or certified mail with postage prepaid, that provides a receipt
verifying the date and time of delivery. Notices shall be directed to the address or addresses of the
Party as set forth below, or to any other address or addresses as that Party may later designate by
Notice delivered in accordance with this Section.
To: Tustin Housing Authority
300 Centennial Way
Tustin, California 92780
Attention: Executive Director
Phone: (714) 573-3117
Fax No.: (714) 669-0976
with a copy to: The City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Manager
Phone: (714) 573-3010
Fax No.: (714) 838-1602
To Operator: Family Promise of Orange County, Inc.
310 West Broadway
Anaheim, California 92805
Attention: President/CEO
ATTACHMENT 7-11
1470132.1
Phone: (714) 353-0428
Fax No.: (714) 787-3489
with a copy to: Managing Partner
Cummins & White
2424 South East Bristol, Suite 300
Newport Beach, CA. 92660
with a copy to: Home Aid Orange County,
Scott Larson I Executive Director
24 Executive Park, Suite 100
Irvine, CA 92614
Phone: (949) 777- 3865
Any Notice shall be deemed received immediately on the date delivered by hand or by a
commercial delivery services and shall be deemed received on the third day from the date it is
postmarked if delivered by registered or certified mail.
Section 22. Severability.
If any provision of this Declaration of Covenants shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining portions of this Declaration of Covenants
shall not in any way be affected or impaired thereby.
Section 23. Multiple Originals; Counterparts.
This Declaration of Covenants may be executed in multiple originals, each of which is
deemed to be an original, and may be signed in counterparts.
IN WITNESS WHEREOF, Operator and the City have executed this Declaration of
Covenants as of the date first above written.
FAMILY PROMISE OF ORANGE COUNTY, INC.,
a California non-profit corporation
Bernd Steinebrunner, President
Sue Currie, Secretary
CITY OF TUSTIN, a municipal corporation,
Matthew S. West, City Manager
ATTACHMENT 7-12
1470132.1
ATTEST:
Erica N. Yasuda, City Clerk
TUSTIN HOUSING AUTHORITY,
a local housing authority,
m.
Matthew S. West, Executive Director
ATTEST:
Erica N. Yasuda, Clerk of the Board
APPROVED AS TO FORM:
David E. Kendig, City Attorney
Housing Authority General Counsel
ATTACHMENT 7-13
1470132.1
EXHIBIT A
Legal Description
1941 El Camino Real, Tustin, CA 92780
THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF ORANGE, City OF TUSTIN, AS DESCRIBED AS FOLLOWS:
THE NORTHWESTERLY 230 FEET OF THE SOUTHEASTERLY 386 FEET OF THE
NORTHEASTERLY 210 FEET OF THE SOUTHWESTERLY 240 FEET OF THE SOUTH
QUARTER OF LOT 29 IN BLOCK 12 OF IRVINE'S SUBDIVISION, AS SHOWN ON A
MAP RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORD MAPS,
RECORDS OF ORANGE COUNTY, CALIFORNIA.
APN 500-071-12
ATTACHMENT 7-14
1470132.1
EXHIBIT B
House of Ruth — Short-term Transitional Housing Program
Scope of Services
Family Promise will provide participants in the Short-term Transitional Housing program
following supportive services:
• 90-180 Days of transitional shelter (extensions determined on case-by-case basis)
• Career & Workforce Development
• Weekly Case Management
• Individual and Family Therapy
• Budgeting
• Credit Repair
• Connected with County of Orange's Coordinated Entry and VI-SPDAT
• Financial Literacy
• Supplemental Food, Diapers and Supplies
• Referral to social services and other community resources
• Diversion and prevention services, including Rental Assistance and Rapid -
Rehousing
• Voluntary 2 -year Graduate Support Service
The House of Ruth Community Resource Center will provide the following resources and
services to Tustin residents and any family experiencing homelessness:
• Community Resources
• Laundry room
• Computers
• Telephones
• Case Management support seven days a week
• Playground
ATTACHMENT 7-15
1470132.1
EXHIBIT C
House of Ruth — Short-term Transitional Housing Program
Placement Criteria
A. 5 POINTS OF ENTRY FOR TUSTIN PREFERENCE
To provide that families with ties to Tustin receive preferential placement Family Promise
will maintain a waiting list of Tustin families referred by the following collaborative partners:
(1) City of Tustin (on website as Community Resource)
(2) Tustin Police Department, liaison for Tustin's Emergency Shelter
(3) 211 Orange County
(4) 18 other shelter providers in the Family Solutions Collaborative, noted in the
system that Family Promise is for families with ties to Tustin.
(5) County of Orange Coordinated Entry System
Family Promise will use commercially reasonable efforts through these referral sources to provide
that the residences have preferential placement to families with ties to Tustin.
B. THE DECLARATION OF COVENANTS
All the selection criteria for occupancy of a Unit by a Qualified Family set forth in the
DDA are incorporated herein by this reference, which, for the sake of repetition as well as addition,
shall include the following:
(1) The Project shall be used solely for Qualified Family/Qualified Families, as defined
in the DDA, with the paramount factor for any selection criteria being preference
given first and foremost to homeless families with direct ties to the City and
secondarily to households with the lowest level of income, taking into account
reasonable adjustments for smaller and larger families, but in no event shall a
Qualified Family consist of a household whose household income is eighty -percent
(80%) over the Orange County Annual Median Income. Unless otherwise agreed to
in writing by the Director, a "Qualified Family" must comprise of at least one minor
child accompanied by an adult who is a parent, or legal or de faeto guardian of such
child and who have resided together as a unit immediately prior to seeking housing
at the Project.
(2) Operator shall be responsible for the selection of families to occupy the Project
and at a minimum, selection shall be limited to homeless families, which shall
mean families that currently either lack shelter, or have shelter that is so
inadequate, temporary, or insecure that the situation threatens the social,
ATTACHMENT 7-16
1470132.1
psychological, or physical health of the family and do not have the financial
means to immediately secure shelter for the family. Any change in the placement
criteria must be approved in writing by the City and the City may require the
placement criteria be amended from time -to -time in the Director's reasonable
discretion upon written notice to Operator. The paramount factor for any
selection criteria shall be that families with ties to the City of Tustin will receive
preferential placement and use its best efforts to have all Units occupied by
families with direct ties to the City, and if any Unit becomes unoccupied, then
Operator shall hold open the Unit for at least fifteen (15) days in an effort to fill
the Unit with a family that has direct ties to the City and if none of the Units are
occupied by families with direct ties to the City then when a Unit becomes
available it shall be held open for up to thirty (30) days in an effort to fill the
Unit with a family with Tustin ties and upon the expiration of this 30 -day waiting
period, no family with direct City ties has filled the vacant Unit, then while the
Project remains fully occupied, any subsequent family with direct City ties
seeking transitional housing at the Project shall be given first priority and
preference by Family Promise to all other facilities controlled by Family Promise
providing transitional, short-term, or emergency housing within the County of
Orange upon such family meeting applicable program and housing requirements
of such Family Promise controlled facility.
(3) No Unit shall be used or occupied by any person that has a familial, business, or
other economic relationship with Operator, it employees, or officers.
(4) No Unit shall be used or occupied by any person(s) other than a Qualified Family
for Short -Term Transitional Housing.
(5) No Unit shall be occupied by a Qualified Family for more than one (1) year
unless otherwise approved by the City in writing.
(6) No Unit shall be occupied by more than two persons per bedroom plus one.
(7) The Project shall be operated at all times in compliance with all applicable
provisions existing at the time of. (a) the Unruh Act, (b) the United States Fair
Housing Act, as amended, excluding 42 U.S.C. Section 3607(a) and 24 CFR 100;
(c) the California Fair Employment and Housing Act, Government Code Section
12900 et seq. and (d) any other applicable law or regulation (including the
Americans With Disabilities Act, to the extent applicable to the Project)
(collectively, the "Housing Statutes"). Operator agrees to indemnify, protect,
hold harmless and defend (by legal counsel reasonably satisfactory to the City),
the City and its board members, officers and employees, from all suits, actions,
claims, causes of action, costs, demands, judgments and liens arising out of
Operator's failure to comply with applicable legal requirements of the Housing
Statutes. The provisions of this subsection shall survive expiration of the Term,
and shall remain in full force and effect.
(8) Upon a Qualified Family failing to meet the definition of a Qualified Family,
then Operator shall immediately provide to the Qualified Family reasonable
notice, or notice as required by law, to vacate the Unit and use due diligence to
ATTACHMENT 7-17
1470132.1
cause the Qualified Family to vacate the Unit. Operator shall develop and
implement appropriate verification procedures to ensure all Units of the Project
are continually occupied and used by a Qualified Family. If requested by the
City, Operator shall provide the City with a copy of its written verification
procedures.
C. TUSTIN FAMILY TIES.
The parties to the DDA and the Declaration of Covenants acknowledge that the purpose of
the Project is to provide assistance to Qualified Families as defined therein, which
definition gives preference to families with direct ties to the City of Tustin and to determine
such familial ties to the City of Tustin and the degree of such ties, the following criteria
shall be used:
(1) The family seeking housing must have their last permanent residential address in
the City as demonstrated by proof of any one or more of the following:
a. Driver's License
b. Utility Bill
C. Rental Agreement
d. Bank Statements
C. Car Registration
f. Other documentation that demonstrates a last permanent address in
Tustin.
(2) In the alternative, if the family cannot establish their last permanent residential
address in the City, the family may be considered a Qualified Family if any one or
more of the following are demonstrated:
a. Children are enrolled in City schools
b. Members of the family are employed in the City
C. Members of the family graduated from a City high school
ATTACHMENT 7-18
1470132.1
EXHIBIT D
House of Ruth — Short-term Transitional Housing Program
SAMPLE TRANSITIONAL HOUSING REPORT
ATTACHMENT 7-19
1470132.1
TRANSITIONAL HOUSING
Total #
Adults 18 - 62
Adults
62+
Children 0 -18
Disabled
Men
Women
Men
Women
Preschool
School
Families served in [year]
Families currently being
served as of year end
Families served with direct
City ties
PERMANENT HOUSING
Total #
Ownership
Rental
Subsidized
Unsubsidized
Subsidized
Unsubsidized
Families moved into
permanent housing
Families moved in with other
............................................
family
Families moved for other
reasons
............................................
............................................
EMPLOYMENT
# Employed before entering
# Obtained
# Lost job while in the
the program
Employment during the
program and currently
program
unemployed
# Lost job while in the
#Unemployed
# Received a promotion
program but found a new
throughout the
while in the program
one
program
# Received a raise while in
Average % Income
# Received a pay
the program
increase while in the
reduction while in the
program
program
EDUCATION
# Attending College before
# Enrolled in College
# Receiving a college
entering the program
during the program
degree or certificate
during the program
# Enrolled in a trade school
# of adults completing
# of children completing
or other specialized training
GED or obtaining HS
GED or obtaining HS
during the program
Diploma during the
Diploma during the
program
program
# Enrolled into a GED
# of preschoolers
# of preschoolers in
program during the program
enrolled in an Early
child care
Start or Head Start
program
COUNSELING
# Families receiving
# of Adults receiving
# of children receiving
counseling/life skills training
counseling/life skills
counseling during the
during the program
during the program
program
ATTACHMENT 7-19
1470132.1
Hours ! Hours Hours
Vacancy
Vacancy rate %for each unit 1
2 3
4 5
6
7
# of total days of vacancy for
entry)
each unit
Average days stayed per family
at Project
# of families seeking shelter at
Project
Main reasons families rejected
for stay at Project
Rent
Total rent received from families 1 2 3 4 5 6 7
for each unit
Total rent:
Operating Expenses/Income
Total operating expenses for
Project
Total income for Project
Total In-kind contributions (est. $)
Placement Referral Source
# of families from each 1
2 3
4 5
placement source (5 points of
entry)
ATTACHMENT 7-20
1470132.1
Additional Comments:
ATTACHMENT 7-21
1470132.1
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , 2021, before me, , Notary
Public, personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name is subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity, and that by his/her/their signature on the instrument the person, or the entity upon behalf
of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
ATTACHMENT 7-22
1470132.1
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , 2021, before me, , Notary
Public, personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name is subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity, and that by his/her/their signature on the instrument the person, or the entity upon behalf
of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
ATTACHMENT 7-23
1470132.1
ATTACHMENT NO. 8
Schedule of Performance
FAMILYPROMISE OF ORANGE COUNTY
ATTACHMENT 8-1
1470132.1
ACTION I TIMING
Preliminary Construction Budget Submit prior to DDA execution
Preliminary Operations Budget Submit prior to DDA execution
DDA EXECUTION
FINANCING - CONSTRUCTION
Commence Capital Fundraising
18 -month campaign
Campaign
Initial Phase
Prior to DDA execution and first 3 months after DDA
execution
a. Identify, Enlist and Educate
Campaign Chair
b. Develop Campaign Budget
c. Build Major Gift Prospect Lists
d. Finalize Capital Campaign Plan and
Present to Board
e. One-to-one meetings with board
members
f. Secure Capital Campaign
Committee Members
g. Draft the Case Statement &
Marketing Materials
h. Hire Capital Campaign Consultant
i. Provide update report to the City
3 months after DDA execution
Leadership Phase
3 to 9 months after DDA execution
a. Continue Soliciting Major Gifts
from Prospect List
b. Produce campaign Literature and
Case Statement
c. Conduct Prospect Screening and
Rating
d. Provide update reports to the City,
6 months and 9 months after DDA execution
25% of cash goal raised at 6
months per Cost Breakdown for
Project (Attachment 14)
5 to 14 months after DDA execution
ATTACHMENT 8-2
1470132.1
ACTION
TIMING
Public Phase
a. Public Kick-off Event
b. Continue Adding Names to Major
Prospect List
c. Continue Donor Contact and
Cultivation
d. Continue Major Gifts Solicitation
e. Distribute Campaign information
to News Media
f. Enlist, Organize and Train
Volunteers
g. Continued Recognition of Major
Gift Donors
12 months after DDA execution
h. Provide update report to the City,
50% of cash goal raised at 12
months
14 to 18 months after DDA execution
Wrap-up Phase
a. Final requests for major gifts and
naming opportunities
b. Financial analysis and projection
c. Discuss securing "gap" financing
15 and 18 months after DDA execution
d. Provide update report to the City,
75% of cash goal raised at 15
months and 100% of cash goal
raised at 18 months
Updated Construction Budget
12 months after DDA execution
Updated Construction Budget and
15 months after DDA execution
HomeAid In -Kind Contributions Letter
(In -Kind contributions are at minimum
of 85% of In -Kind goal)
Final Construction Budget
Prior to Closing
Complete Fundraising Efforts for
18 months after DDA execution — prior to Closing
Construction — 100% of cash goal
Submit written proof
(DDA Section 3.1(c); Section 4.18(a))
FINANCING - OPERATIONS
ATTACHMENT 8-3
1470132.1
ACTION
I TIMING
Initial House of Ruth Operations
Prior to DDA execution
Budget
Operator Financials Statements —
Upon publication
Year Ended December 31, 2019
Updated House of Ruth Operations
15 months after to DDA execution
Budget
Final Operations Budget
Prior to Closing
Operator Financials Statements —
Upon publication
Year Ended December 31, 2020
Complete Fundraising Efforts for 18
18 months after DDA execution — prior to Closing
months of Operations — 100%
Submit written proof to the City
(DDA Section 3.1(c); Section 4.18(a))
ENTITLEMENTS
Operator submits Concept Plan and
9 months after DDA execution
Design Review Application, Density
Bonus (Housing Agreement), and
conditional use permit applications, as
applicable, which are with related
drawings and documents to the City
Begin negotiating Development
9 months after DDA execution
Agreement (DA) & Housing
Agreement, per Density Bonus
requirements
Entitlements & Design Approved —
15 months after DDA execution
Planning Commission
Entitlements & Design Approved —
City Council 1 st & 2nd Reading
15 to 18 months after DDA execution
City and Family Promise execute
Development Agreement (DA)
CONSTRUCTION DRAWINGS
Operator submits grading plans
Submit plans within 15 months of the execution of the
DDA.
Operator submits construction
Submit construction drawings and related documents
drawings and related documents
within 15 months of execution of DDA.
ATTACHMENT 8-4
1470132.1
ACTION I TIMING
Site - permit ready 118 months after DDA execution - Condition to Close Escrow
PRE -CONVEYANCE
City orders an appraisal of the
3 months prior to conveyance
property (DDA section 2.3)
City opens Escrow (DDA Section 2.4)
3 months prior to conveyance
Operator submits preliminary title
3 months prior to conveyance
report (DDA Section 2.11)
Operator provides written notice to the
2 months prior to conveyance
City of the Operator's approval or
disapproval of any of the preliminary
title report Exceptions
CONVEYANCE AND CONSTRUCTION
City conveys property to Family
18 months after DDA execution
Promise
Operator commences grading
2 months after conveyance
Operator commences vertical
3 months after conveyance
construction
Operator completes construction of
24 months after conveyance
improvements
CERTIFICATE OF COMPLETION
Operator submits request for issuance
Within thirty (30) days from the date all conditions
of the Certificate of Completion to City
precedent to issuance are satisfied, Operator shall submit a
certification of satisfaction of all conditions precedent and
a request for issuance of Certificate of Completion; no
outstanding performance bonds will be returned until
approval by the City of the Certificate of Completion.
The City approves or disapproves the
Within fifteen (15) business days following submission of
request for issuance of the Certificate
request for Certificate of Completion and satisfaction of all
of Completion
conditions precedent set forth in Agreement for the same.
City shall cause the Recording of the
Within five (5) business days following issuance of
Certificate of Completion
Certificate of Compliance by City
ATTACHMENT 8-5
1470132.1
ATTACHMENT NO.9
Hazardous Materials Definition
"Hazardous Materials" shall also mean any substance, material, or waste which is or becomes,
regulated by any local governmental authority, the State, or the United States Government,
including, but not limited to, any material or substance which is (i) defined as a "hazardous waste,"
"extremely hazardous waste," or "restricted hazardous waste" under Section 25115, 25117 or
25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20,
Chapter 6.5 (Hazardous Waste Control Law)), (ii) defined as a "hazardous substance" under Section
25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -
Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous
substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv)
defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code,
Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi)
friable asbestos, (vii) polychlorinated byphenyls, (viii) methyl tertiary butyl ether, (ix) listed under
Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of
the California Code of Regulations, Division 4, Chapter 20, (x) designated as "hazardous
substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317), (xi) defined as a
"hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. §§6901, et seq. (42 U.S.C. §6903) or (xii) defined as "hazardous substances" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C.§§9601, et seq.
ATTACHMENT 9
1470132.1
ATTACHMENT NO. 10
Memorandum of Agreement
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Clerk
Space Above for Recorder's Office Use
This document is exempt from recording fee pursuant to Government Code §§ 6103 and 27383
MEMORANDUM OF DISPOSITION AND
DEVELOPMENT AGREEMENT
This MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
("Memorandum") is entered into as of , 2020, by and between
FAMILY PROMISE OF ORANGE COUNTY, INC., a California non-profit corporation
("Operator"), on the one hand, and CITY OF TUSTIN, a municipal corporation ("Tustin") and
the TUSTIN HOUSING AUTHORITY, a local housing authority ("Authority") (collectively,
Tustin and Authority are referred to herein as the "City") on the other, with reference to the
following facts:
RECITALS
A. Operator and the City have entered into that certain unrecorded Disposition and
Development Agreement dated as of 2020 (the "DDA"). All capitalized terms
used herein without definition shall have the same meanings as assigned in the DDA.
B. The DDA concerns the development by Operator of Assessor's Parcel No. 500-
071-12 located in the City of Tustin, County of Orange, State of California, commonly referred to
as 1941 El Camino Real, Tustin, CA 92780, which is legally described in Exhibit A attached hereto
and depicted in the Site Map attached hereto as Exhibit `B" (hereafter, the "Site").
ATTACHMENT 10
1470132.1
C. Operator and the City desire to provide notice that the DDA, among other things,
restricts the development, use, ownership and conveyance of the Site.
NOW, THEREFORE, in consideration of mutual covenants set forth herein, Operator
and the City hereby agree as follows:
1. Development of the Site. Pursuant to the DDA, the City is conveying the Site to
the Operator on the condition that the Operator develop the Site for use as a short-term transitional
housing pursuant to the DDA.
2. Use of the Site. The Site will be restricted in its uses pursuant to a recorded
Declaration of Restrictions and Covenants, which will govern the Site and Project for fifty-five
years and such Covenant Period shall be evidenced within and conclusively established by the
Certificate of Project Covenant Period to be recorded by the Parties.
3. Right of Reversion and Right of Repurchase. The DDA contains a right of
reversion right, and a right of repurchase upon default of Operator.
4. Copy of DDA. A copy of the DDA may be obtained from the City Clerk of the
City.
5. Incorporation of DDA. The DDA is incorporated herein by reference. This
Memorandum is being recorded to put the public on notice of the DDA and in no event shall this
Memorandum be interpreted as altering the terms and conditions of the DDA. In the event of any
inconsistency between this Memorandum and the DDA, the DDA shall control.
6. Miscellaneous. This Memorandum shall be governed by and construed under the
laws of the State of California with jurisdiction lying with the Superior Court of the County of
Orange. This Memorandum may not be modified except by written instrument signed by
authorized representatives of both parties. This Memorandum shall be binding upon the
Operator's and the City's successors and assigns.
7. Counterparts. This Memorandum may be executed in two or more counterparts.
IN WITNESS WHEREOF, Operator, City and Authority have duly executed this Memorandum
as of the date first written above.
FAMILY PROMISE OF ORANGE COUNTY, INC.,
a
California non-profit corporation
I:
1470132.1
Bernd Steinebrunner, President
ATTACHMENT 10
IN
Sue Currie, Secretary
CITY OF TUSTIN, a municipal corporation,
IN
Matthew S. West, City Manager
ATTEST:
IN
Erica N. Yasuda, City Clerk
TUSTIN HOUSING AUTHORITY, a local housing
authority,
IIn
Matthew S. West, Executive Director
ATTEST:
Erica N. Yasuda, Clerk of the Board
APPROVED AS TO FORM:
LOW
David E. Kendig, City Attorney
Housing Authority General Counsel
ATTACHMENT 10
1470132.1
EXHIBIT A
Legal Description
1941 El Camino Real, Tustin, CA 92780
THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF ORANGE, City OF TUSTIN, AS DESCRIBED AS FOLLOWS:
THE NORTHWESTERLY 230 FEET OF THE SOUTHEASTERLY 386 FEET OF THE
NORTHEASTERLY 210 FEET OF THE SOUTHWESTERLY 240 FEET OF THE SOUTH
QUARTER OF LOT 29 IN BLOCK 12 OF IRVINE'S SUBDIVISION, AS SHOWN ON A MAP
RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORD MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA.
APN 500-071-12
ATTACHMENT 10
1470132.1
EXHIBIT B
Site Map
- 7-F
INL• . 1941 El Camino Real
ti #' f► y a: rpl
r 7.
�r �r r y
.Pr r
Apr
+k .� `•
ATTACHMENT 10
1470132.1
ATTACHMENT NO. 11
Certificate of Project Covenant Period
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Clerk
Space Above for Recorder's Office Use
This document is exempt from recording fee pursuant to Government Code §§ 6103 and 27383
CERTIFICATE OF PROJECT COVENANT PERIOD
The CITY OF TUSTIN, a municipal corporation ("City"), the TUSTIN HOUSING
AUTHORITY, a local housing authority ("Authority") (collectively, the City and Authority are
referred to herein as the "City") and FAMILY PROMISE OF ORANGE COUNTY, INC., a
California non-profit corporation ("Operator"), have entered into that certain Disposition and
Development Agreement dated '2020 (the "DDA") concerning the
development of certain real property situated in the City of Tustin, California designated as
Assessor Parcel Number 500-071-12, assigned the address of 1941 El Camino Real, Tustin,
California (the "Site").
Pursuant to the DDA, the City and Operator entered into that certain Declaration of
Restrictions and Covenants dated as of , 2021, and recorded in the Official
Records of Orange County as Document No. ("Declaration of Covenants"), imposing
among other things, a 55 -year covenant period commencing upon the issuance of a Certificate of
Occupancy by the City for the Project. The City has issued to Operator the Certificate of
Occupancy and thus, the Covenant Period, as defined in the DDA and the Declaration of Covenants
for the Project commenced on and will terminate no earlier than
FAMILY PROMISE OF ORANGE COUNTY, INC.,
a California non-profit corporation
wo
Bernd Steinebrunner, President
ATTACHMENT 11-1
1470132.1
Sue Currie, Secretary
CITY OF TUSTIN, a municipal corporation,
Matthew S. West, City Manager
ATTEST:
WE
Erica N. Yasuda, City Clerk
TUSTIN HOUSING AUTHORITY, a local
housing authority,
Matthew S. West, Executive Director
ATTEST:
Erica N. Yasuda, Clerk of the Board
APPROVED AS TO FORM:
1.2
David E. Kendig, City Attorney
Housing Authority General Counsel
ATTACHMENT 11-2
1470132.1
ATTACHMENT NO. 12
Preliminary Site Plans
ATTACHMENT 12
1470132.1
Family Prom isr DO Orange Cau nt7
House of Ruth Project
TACKLE 1
ESTIMATED CONSTRUCTION COSTS
Land
GPf-Sibei InfrasbiteLure
On -Site Impravernerds
Garage Snell
iRemdent®I Buildings Snell Costs
Contractor Feesi General Conditions
Canstnuctmn Bonds
Canfingenry Allvxance
Total blrect Coats
OL Ondiirecl Cos[s
Archilemm, Engineering L Cansulling
Pubic Permits & Fees
Taxes. Legal & Accounting
Insurance
Marketing & Leasing
Capitalized Operating Reserves
Developer Fee fawner cmtntauLim to MomeAidj
Canfingency
Total Indirect Cost%
ATTACHMENT NO. 13
Cost Breakdown for Project
16,100 5l Land
30 P^,sf
AJk:r mDa
12,873.45&
18,1130 SSLmd
;16 iSf
Spaces
PSp
8,164 Sf G9Ak
6170 1,Sf
20% Cuirimuc9icn Cbsu
32,0112,686
4% CursAruction Costs
S Fres. Taxes, -Egal & ArcounGn , Wirkeiing & Lezmi
8% Crlher Direal. C.iasds
Resen+®s, Devebpr Fee $ Contingenry
8,1151 S1G8A
327+1.18 PSS
12.2% Direre Coasts
7 Unk3 322,822 PUnit
1.8% Direcl Costs
1.1% Direci Crests
7 Unr1s 5180 Wait
7 Unrls 52,571 PUrik
5% Direct Costs
5.1% Other Indirect Costs
OEslinaled at
i4 3804,4081
Inc. in On -Site
M9,17.5
Inc. in Res Smell
$1,377,000
S333,21-5
X85,084
#168,818
$2.221,100
70,D6i1
9189,754
S'D64
$25,D00
;11,054
;18,044
$11 1,D"
#33,064
;lfBrtiR+li
OIL Total Construction Costs
T Unit:
SA 10,%5 Unil
12,873.45&
EzNmalM. In -kl n d contn bution s '•
38%
ing 1.3601
Estlmaled Fu nds Needed for Ca nslrucllun
T Units
sl11T,514
32,0112,686
" Eslin aged u• cid ranvibumns calculalion does noL iinciu6e the rolawing n The Total Ccowmaicn Costs: Corrsbuclion Bands, Publc Permits
S Fres. Taxes, -Egal & ArcounGn , Wirkeiing & Lezmi
, Capitalized Opemling
Resen+®s, Devebpr Fee $ Contingenry
IV. Famlfy Prumise Furnisheka■ & Campam orn C�multant
Cammunily Resource Room Furnishings
1 Units
52,440 .Ur L $2,4134
Apartnreqt Furnishings.
T Urrils
315,1340 iLir L 5145,064
Capilal Campaign Consultant {Ona Tin a Fear}
7 Units
318,714 PUrrt ;75,064
Total Fumishings & Campaign CaTnultant
;ilIZ401)
M
"oral Construction C asts T Ura t $118,6135 PUnll 42,8T3,11,66
-otal Furnishings S Campaign Consultant IINAOO6
_OTAL PROJECT COSTS ;3,05a,m
-ess Estimated In-kind contributions 961.3601
STIMATEDFUNDS NEEDED-TOTALPROJECT 7 Units ;313,511 12,194,916
ATTACHMENT 14
1470132.1
TABLE 2
ESTWATEDOPERATING BUDGET
A. Annual Pr -pram Income
Pr" ra m Flee
Orc TJearc`arn , 850 SI
1 Units) @
S56D ihlrarrlh
Two-7Aeilmam , 650 Si
4 Urias]
SBSD aMomh
Three-Oedroarn �g 1,1005f
2 Units)
51.125 Wnlh
LaurrirydMksc. income
6 Washeri
133 AlDnlh
If several leers Di rent. add addlicnal celu-nns.
program bveamE
ILesSI: VaCancy$ CalleClnn
10.0% Grass income
Effective Pragram lnoome
7 Units
59,909 !Llai
Yeady0peraling Expenses
Annual Funds Heeded - Gap between Program
Income and Operading Expenses
B. Ooeratnng ERoenses
Gererol-Qperatny Expenses
7 Units @
52,5OD A-Ini
properly Taxes lafler exernplion1
7 Units @
$75 !Ur11
Salaries Isee b&o v;
7 Units
;22,969 )Um
UliMmm IUnil1
7 Units
SZOG —Inti -M nth
Laund-y.Resaurce Center Utilities
1 Unit
x.25 jUrn(mmm
Cmsuilanl costs (yearly)
7 Units
S2,5013 A -Ino
Replacem"L Reserve
7 Units
$250 JUrCI
0peralirg Reserve
7 Unit
X50 A.Inil
Capitm, Rmerre
7 Units
'$1501Und
Total Pearly Operating Expenses
7 Units
531,158.43 )Ural
C. Sa1irie9.
local ),tarty HOR pertrar
E .25 FT€
77,800.19.40D
Housing NavigDlm .50 FTE
52,000 28,1)OD
Case Manager 1:1) FTE
52,000 $52,000
Commur y Im.cacl Manager.5b FTE
35,000 3.1 i`,50D
Janilonal & hlatnlenance Tech .50 FTE
27,00 $13.520
Payrdl Tmxes WC & Ins
20,000 S15,1)01)
263mO S143.42D
Annual! Cnnsullant Fees
total HQR porbor
GralL Wr'.er
15,000 Sl Cr.C•O:
Danal!eeper
15,000 S. 101,
30.000 W. `_Cis
TOTAL SALARIES
3160.920
38,�D
�O,9cfc
7, D00
32;44D
�78,9A0
(#7,440
ib4,3tiU
Y 21.9, 09 5
314A,735
X17,500
3525
3180,920
S18,9W
S 3011
V 7, 50D
31,7511
31,750
31,I)w
�.Q
r I�ifl:'.R�ifaPilill�ri�'f:l�da]�i)iF1'W:YRS+f�>P::T�?r11:�t1dT1�.A:k'i�i�•&'S.1�T,:�+Ir]:i'�?",�Id'UI+7,51 ;�A"if�kl
E.
ESTIMATED FUNDS NEEDED C04STRUCTION V, 194,990
ESTIMATED FUNDS NEEDED - 18 MONTHS OPERATING EXPENSES LESS PROGRAM INCOME �223,1D3
TOTAL ESTIMATED FUNDS TO BE RABEf1 #2,A111,iY9A
ATTACHMENT 14
1470132.1
ATTACHMENT 14
1470132.1
ATTACHMENT NO. 14
PLACEMENT CRITERIA
A. FIVE POINTS OF ENTRY FOR TUSTIN PREFERENCE
To provide that families with ties to Tustin receive preferential placement Family
Promise will maintain a waiting list of Tustin families referred by the following collaborative
partners:
(1) City of Tustin (on website as Community Resource)
(2) Tustin Police Department, liaison for Tustin's Emergency Shelter
(3) 211 Orange County
(4) 18 other shelter providers in the Family Solutions Collaborative, noted
in the system that Family Promise is for families with ties to Tustin.
(5) County of Orange Coordinated Entry System
Family Promise will use commercially reasonable efforts through these referral sources to
provide that the residences have preferential placement to families with ties to Tustin.
B. THE DECLARATION OF COVENANTS
All the selection criteria for occupancy of a Unit by a Qualified Family set forth in the
DDA and the Declaration of Covenants are incorporated herein by this reference, which, for
the sake of repetition as well as addition, shall include the following:
(1) The Project shall be used solely for Qualified Family/Qualified Families, as
defined in the DDA, with the paramount factor for any selection criteria
being preference given first and foremost to homeless families with direct ties
to the City and secondarily to households with the lowest level of income,
taking into account reasonable adjustments for smaller and larger families,
but in no event shall a Qualified Family consist of a household whose
household income is eighty -percent (80%) over the Orange County Annual
Median Income. Unless otherwise agreed to in writing by the Director, a
"Qualified Family" must comprise of at least one minor child accompanied
by an adult who is a parent, or legal or de facto guardian of such child and
who have resided together as a unit immediately prior to seeking housing at
the Project.
(2) No Unit shall be used or occupied by any person that has a familial,
business, or other economic relationship with Operator, it employees, or
officers.
ATTACHMENT 14
1470132.1
(3) No Unit shall be used or occupied by any person(s) other than a Qualified
Family for Short -Term Transitional Housing.
(4) No Unit shall be occupied by a Qualified Family for more than one (1)
year unless otherwise approved by the City in writing.
(5) No Unit shall be occupied by more than two persons per bedroom plus
one.
(6) The Project shall be operated at all times in compliance with all applicable
provisions existing at the time of. (a) the Unruh Act, (b) the United States
Fair Housing Act, as amended, excluding 42 U.S.C. Section 3607(a) and
24 CFR 100; (c) the California Fair Employment and Housing Act,
Government Code Section 12900 et seq. and (d) any other applicable law
or regulation (including the Americans With Disabilities Act, to the
extent applicable to the Project) (collectively, the "Housing Statutes").
Operator agrees to indemnify, protect, hold harmless and defend (by legal
counsel reasonably satisfactory to the City), the City and its board
members, officers and employees, from all suits, actions, claims, causes
of action, costs, demands, judgments and liens arising out of Operator's
failure to comply with applicable legal requirements of the Housing
Statutes. The provisions of this subsection shall survive expiration of the
Term, and shall remain in full force and effect.
(7) Upon a Qualified Family failing to meet the definition of a Qualified
Family, then Operator shall immediately provide to the Qualified Family
reasonable notice, or notice as required by law, to vacate the Unit and use
due diligence to cause the Qualified Family to vacate the Unit. Operator
shall develop and implement appropriate verification procedures to
ensure all Units of the Project are continually occupied and used by a
Qualified Family. If requested by the City, Operator shall provide the City
with a copy of its written verification procedures.
C. TUSTIN FAMILY TIES.
The parties to the DDA and the Declaration of Covenants acknowledge that the purpose
of the Project is to provide assistance to Qualified Families as defined therein, which
definition gives preference to families with direct ties to the City of Tustin and to
determine such familial ties to the City of Tustin and the degree of such ties, the
following criteria shall be used:
(1) The family seeking housing must have their last permanent residential address
in the City as demonstrated by proof of any one or more of the following:
a. Driver's License
b. Utility Bill
c. Rental Agreement
d. Bank Statements
e. Car Registration
ATTACHMENT 14
1470132.1
f. Other documentation that demonstrates a last permanent address in
Tustin.
(2) In the alternative, if the family cannot establish their last permanent
residential address in the City, the family may be considered a Qualified
Family if any one or more of the following are demonstrated:
a. Children are enrolled in City schools
b. Members of the family are employed in the City
c. Members of the family graduated from a City high school
ATTACHMENT 14
1470132.1