11-065 First Amendment, Development and Disposition Agreement, Habitat for Humanity Silicon Valley, Cleo Avenue SECOND AMENDMENT TO THE DEVELOPMENT AND DISPOSITION
AGREEMENT
BY AND BETWEEN THE CITY OF CUPERTINO
AND HABITAT FOR HUMANITY SILICON VALLEY FOR CLEO AVENUE
PROPERTY
This Agreement("Second Amendment ") dated May 8, 2012, amends the Agreement
dated July 1, 2010 ("Original Agreement") by and between the City of Cupertino ("City") and
Habitat for Humanity Silicon Valley ("Developer"). The effective date of this Agreement is
May 8, 2012.
Whereas, City and Developer entered into an agreement to transfer the Property to
the Developer and impose occupancy and affordability restrictions on the Development in order
for the City to meet the goals and objectives of improving and increasing the community's supply
of affordable housing; and
Whereas, the parties now desire to amend the Original Agreement to make minor
corrections;
Now,therefore, the parties agree to amend the Original Agreement as follows:
Section 4.1 is amended by deleting the current paragraph and replacing it with the following
paragraph:
Section 4.1 Amount
Subject to the terms and conditions set forth in the City Documents, the City hereby
agrees to grant, and the Developer hereby agrees to accept, an amount up to Two
Hundred Fifty
Thousand Nine Hundred Thirty Two Dollars ($250,932.00) in order to pay for certain
predevelopment activities consistent with the CDBG program in connection with the
development and construction of the Development.
All other terms of the Original Agreement which are not in conflict with the provisions of the
First Amendment and Second Amendment shall remain unchanged and in full force and effect.
In case of a conflict in the terms of the Original Agreement, the First Amendment, and the
Second Amendment, the provisions of this Second Amendment shall control.
The Parties acknowledge and accept the terms and conditions of this Second Amendment as
evidenced by the following signatures of their duly authorized representatives.
1
WHEREFORE, the parties have executed this Second Amendment to the Development and
Disposition Agreement on or as of the date first above written
THE CITY OF CUPERTINO,
a municipal corporation
By: "
Amy Chan
Its: Interim City Manager
DEVELOPER
HABITAT FOR HUMANITY SILICON VALLEY,
a California nonprofit public benefit corporation
\
By: /
ennifer Simmons
Its: Executive Director
Attest:
Gint4A,ckitg
Grace Schmidt, City Clerk
Approved as to form:
/T
Carol Korade, City Attorney
2
SECOND AMENDMENT TO THE DEVELOPMENT AND DISPOSITION
AGREEMENT
BY AND BETWEEN THE CITY OF CUPERTINO
AND HABITAT FOR HUMANITY SIL][CON VALLEY FOR CLEO AVENUE
PROPERTY
This Agreement("Second Amendment ") dated May 8, 2012, amends the Agreement
dated July 1, 2010 ("Original Agreement") by and between the City of Cupertino ("City") and
Habitat for Humanity Silicon Valley ("Developer"). The effective date of this Agreement is
May 8, 2012.
Whereas, City and Developer entered into an agreement to transfer the Property to
the Developer and impose occupancy and affordability restrictions on the Development in order
for the City to meet the goals and objectives of improving and increasing the community's supply
of affordable housing; and
Whereas,the parties now desire to amend the Original Agreement to make minor
corrections;
Now, therefore, the parties agree to amend the Original Agreement as follows:
Section 4.1 is amended by deleting the current paragraph and replacing it with the following
paragraph:
Section 4.1 Amount
Subject to the terms and conditions set forth in the City Documents, the City hereby
agrees to grant, and the Developer hereby agrees to accept, an amount up to Two
Hundred Fifty
Thousand Nine Hundred Thirty Two Dollars ($250,932.00) in order to pay for certain
predevelopment activities consistent with the CDBG program in connection with the
development and construction of the Development.
All other terms of the Original Agreement which are not in conflict with the provisions of the
First Amendment and Second Amendment shall remain unchanged and in full force and effect.
In case of a conflict in the terms of the Original Agreement, the First Amendment, and the
Second Amendment, the provisions of this Second Amendment shall control.
The Parties acknowledge and accept the terms and conditions of this Second Amendment as
evidenced by the following signatures of their duly authorized representatives.
1
WHEREFORE, the parties have executed this Second Amendment to the Development and
Disposition Agreement on or as of the date first above written
THE CITY OF CUPERTINO,
a municipal corporation
1
By: I� kJU\J
Amy Chan
Its: Interim City Manager
DEVELOPER
HABITAT FOR HUMANITY SILICON VALLEY,
a California nonprofit public benefit corporation
Z.
By:
ennifer Simmons
Its: Executive Director
Attest:
614tCritilg
Grace Schmidt, City Clerk
Approved as to form:
Carol Korade, City Attorney
2
FIRST AMENDMENT TO THE DEVELOPMENT AND DISPOSITION AGREEMENT
BY AND BETWEEN THE CITY OF CUPERTINO
AND HABITAT FOR HUMANITY SILICON VALLEY FOR CLEO AVENUE PROPERTY
This Agreement ( "First Amendment ") dated ;dune 9, 2011, amends the Agreement dated July 1,
2010 ( "Original Agreement ") by and between the City of Cupertino ( "City ") and Habitat for Humanity
Silicon Valley ( "Developer "). The effective date of this Agreement is June 9, 2011.
Whereas, City and Developer entered into an agreement to transfer the Property to the
Developer and impose occupancy and affordability restrictions on the Development in order for the City
to meet the goals and objectives of improving and increasing the community's supply of affordable
housing; and
Whereas, the parties now desire to amend the Original Agreement to make minor corrections;
Now, therefore, the parties agree to amend the Original Agreement as follows:
The official name of Developer is "Habitat for Humanity Silicon Valley" so all instances where
Developer is referred to by some variation of that name are hereby amended to read Habitat for
Humanity Silicon Valley.
1. Section 2.1 is amended by deleting the current paragraph and replacing it with the following
paragraph:
Section 2.1 Conditions Precedent to Development.
As conditions precedent to the City's obligation to convey the Property to the Developer,
the following conditions set forth in Sections 2.2 through 2.5 of this Agreement must first be met
by the dates set forth in the Development Schedule attached to this Agreement as Exhibit B,
subject to the extension of any time limit in writing by the City. In addition, as a condition
precedent to the City conveying the Property to the Developer, the Developer must comply with
the provisions set forth in Sections 3.4 and 5.' this Agreement as more fully stated in those
Sections.
2. Section 2.3 is amended by deleting the current paragraph and replacing it with the following
paragraph:
Section 2.3 Environmental Review.
If the Developer obtains federal funding and is required to undergo National Environmental
Policy Act (NEPA) review, NEPA review and California Environmental Quality Act (CEQA)
review will be onducted as simultaneously as possible. The Development is subject to
completion of all required CEQA environmental review. Within sixty 60 days after the date of
this Agreement, or such later date that the City and the Developer agree upon, the City, at the
1
Developer's sole cost and expense, shall diligently complete any required environmental review
of the Development in accordance with CEQA. The Developer acknowledges that the
environmental review process under CEQA may involve preparation and consideration of
additional information as well as consideration of input from interested organizations and
individuals; that approval or disapproval of the Development following completion of the
environmental review process is within the sole, complete, unfettered and absolute discretion of
the City without limitation by or consideration of the terms of this Agreement; and that the City
makes no representation regarding the ability or willingness of the City to approve the
Development at the conclusion of the environmental review process required by CEQA, or
regarding the imposition of any mitigation measures as conditions of any approval that may be
imposed on the Development. The parties recognize that, as a result of the environmental review
process, each party has the absolute discretion and right to terminate this Agreement, and no cost
shall be incurred by either party as a result of such termination. In addition, the Developer
acknowledges that any required approvals by any other local, state or federal government may
require additional environmental review, and that any approval by the City shall not bind any
other local state or federal government to approve the Development or to impose mitigation
measures which are consistent with the terms of this Agreement or with the terms of any
mitigation measures required by the City pursuant to the City's environmental review.
3. The first paragraph of Section 2.6 is amended by deleting the current paragraph and replacing it with
the following paragraph:
Section 2.6 Construction Plans.
No later than the date ninety (90) days after the date of this Agreement, or such later date that the
City and the Developer agree upon, the Developer shall deliver to the City a set of the completed
Construction Plans. "Construction Plans" means all construction documentation upon which the
Developer and the Developer's contractors and subcontractors shall rely in building the
Improvements and shall include, but not necessarily be limited to final architectural drawings,
landscaping plans and specifications, final elevations, building plans and specifications and a
time schedule for construction.
The remaining paragraphs in this section are not modified.
4. The first paragraph of Section 2.7 is amended by deleting the current paragraph and replacing it with
the following paragraph:
Section 2.7 Building Permits
No later than one hundred twenty (120) days after the date of this Agreement, or such later date
that the City and the Developer agree upon, the Developer shall submit the Construction Plans
and an application for all necessary building and related City permits (collectively, the "Building
Permits ") from the City Building Department. The Developer shall thereafter diligently pursue
and obtain issuance of the Building Permits. The Developer acknowledges that execution of this
2
Agreement by the City does not constitute approval by the City and in no way limits the
discretion of the City in approving or rejecting the Construction Plans or in granting or denying
the Building Permits. Once Building Permits are obtained, they must be kept active and in force
until completion of the project.
The remaining paragraph in this section is not modified
5. Section 4.1 is amended by deleting the current paragraph and replacing it with the following
paragraph:
Section 4.1 Amount
Subject to the terms and conditions set forth in the City Documents, the City hereby agrees to
grant, and the Developer hereby agrees to accept, an amount up to Two Hundred Fifty
Thousand Nine Hundred Thirty Two Dollars I $250,932.00) in order to provide Eligible
Purchasers with mortgage assistance.
6. The parties desire to clarify the with regard to the provisions of Article 6. Mortgage Assistance and
Sale of Homes, any and all references to "deferred financing" are interpreted to allow more than one
deferred loan.
7. Exhibit B to the Original Agreement is deleted and replaced with the attached Exhibit B.
All other terms of the Original Agreement which are not in conflict with the provisions of this First
Amendment shall remain unchanged and in full force and effect. In case of a conflict in the terms of the
Original Agreement and this First Amendment, the provisions of this First Amendment shall control.
3
The Parties acknowledge and accept the terms and conditions of this First Amendment as evidenced by
the following signatures of their duly authorized representatives.
WHEREFORE, the parties have executed this First Amendment to the Development and Disposition
Agreement on or as of the date first above written
THE CITY OF CUPERTINO,
a municipal corporation
By: at....se:A.
David W. Knapp
Its: City Manager
DEVELOPER
HABITAT FOR HUMANITY SILICON VALLEY, a
California nonprofit public benefit corporation
By:
ennifer Simmons
Its: Executive Director
4
EXHIBIT B
DEVELOPMENT SCHEDULE
This Development Schedule summarizes the schedule for various activities under the Disposition
and Development Agreement ( "DDA ") to which this exhibit is attached. The description of items in this
Development Schedule is meant to be descriptive only, and shall not be deemed to modify in any way
the provisions of the DDA to which such items relate. Section references herein to the DDA are
intended merely as an aid in relating this Development Schedule to other provisions of the DDA and
shall not be deemed to have any substantive effect.
Whenever this Development Schedule requires the submission of plans or other documents at a
specific time, such plans or other documents, as submitted, shall be complete and adequate for review by
the City or other applicable governmental entity within the time set forth herein. Prior to the time set
forth for each particular submission, the Developer shall consult with City staff informally as necessary
concerning such submission in order to assure that such submission will be complete and in a proper
form within the time for submission set forth herein.
Action Date
These Items Relate to Actions and Requirements Prior to the Conveyance of the Property as Set
Forth in Article 2 of the DDA.
CEQA Review. CEQA review of Development to No later than 60 days after date of DDA or such
be completed. [DDLA § 2.3] late date that the City and the Developer agree on.
Site Investigation. Developer may investigate By the date 90 days after the date of the DDA.
Property conditions. [DDLA § 2.2]
Applicable Land Use Approvals. The Developer Developer applied for prior to date of DDA and
shall apply for and obtain the applicable Land Use will diligently pursue issuance before close of
Approvals necessary for the construction of the escrow.
Improvements.
[DDA § 2.4]
Design Concept. The Developer shall submit any Submitted and City approved prior to date of DDA.
changes to the proposed concept for the
Improvements for City approval.
[DDLA § 2.5]
Construction Plans. The Developer shall submit Within 90 days following the date of DDA or such
proposed Construction Plans for the Improvements. late date that the City and the Developer agree on.
[DDA § 2.6]
Building Permit. The Developer shall apply for Within 120 days following the date of DDA or
the Building Permit for construction of the such later date that the City and the Developer
Improvements. agree on.
5
Action Date
[DDA § 2.7]
Construction Contract. The Developer shall submit Within 10 days after the issuance of the Building
for City approval any applicable subcontracts for Permit for site work and within 60 days of the date
the construction of the Improvements. of issuance of the building permit for any other
LDDA § 2.9] applicable trades.
Insurance. The Developer shall submit evidence of No later than close of escrow.
insurance to the City.
[DDA § 5.7]
Payment and Performance Bonds. The Developer Prior to issuance of Building Permits.
shall submit to the City payment and performance
bonds for the Improvements.
[DDA § 2.8]
These Items Relate to the Conveyance of the Property and the Developer's Construction of the
Improvements as Set Forth in Articles 3 and 5.
Closing. Property shall be transferred to Developer No later than July 1, 2011, or such later date that
by the City. [DDA § 3.4] the City and the Developer agree on, provided the
conditions to conveyance of the Property set forth
in Article 2 have been satisfied.
Commencement of Construction. The Developer No later than 30 days after issuance of Building
shall commence construction of the Improvements. Permits to the Developer.
[DDA § 5.2]
Completion of Construction. The Developer shall Within 18 months after commencement of
complete construction of the Improvements. construction.
[DDA § 5.2]
6
DOCUMENT: 21 755925 Pages: 16
RECORDING REQUESTED BY: Fees. No Fees
Taxes. .
City of Cupertino AMT i PA I .
AMT PAID
WHEN RECORDED,MAIL TO: REGINA ALCOMENDRAS RDE # 888
SANTA CLARA COUNTY RECORDER 7/19/2012
City Clerk's Office Recorded at the request of 1 :50 PM
City of Cupertino C I y
10300 Tone Avenue
Cupertino, CA 95014-3255
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
NO FEE IN ACCORDANCE
WITH GOV. CODE 27383
DECLARATION OF AFFORDABILITY COVENANTS
Cleo Avenue
APN 362-31-004
? Original
0 For Fast Endorsement
Recording Requested By and
When Recorded, Return to:
City of Cupertino
Community Development Department
10300 Torre Avenue
Cupertino, CA 95014
Attention: Senior Planner
No Fee for Recording Pursuant to
Government Code Section 27383
(SPACE ABOVE THIS LINE FOR RECORDERS USE)
DECLARATION OF AFFORDABILITY COVENANTS
This Declaration of Affordability Covenants ("Affordability Covenants") is made as of
this 2nd day of July, 2012 by Habitat for Humanity Silicon Valley, a California nonprofit public
benefit corporation(the "Developer"), and the City of Cupertino, a municipal corporation(the
"City"), with reference to the following facts:
RECITALS
A. The City and the Developer intends to enter into that Predevelopment Grant
Agreement dated as of July 2, 2012 (the "Predevelopment Grant Agreement") under which the
City agreed to grant Two Hundred Fifty Thousand Nine Hundred Thirty Two Dollars ($250,932)
(the "Grant")to the Developer for certain predevelopment costs necessary for the construction
and development of four(4) single family homes located on real property at 20624, 20626,
20628 and 20630 Cleo Avenue, in the City of Cupertino, California, as more particularly
described in Exhibit A attached hereto and incorporated herein(the "Property").
B. Upon completion, the Developer intends to sell the homes at affordable housing
cost to low income households (the "Eligible Purchasers").
C. The Grant will have the effect of improving and expanding the supply of housing
in the City of Cupertino, California available at affordable housing cost to low income
households and will benefit the City.
D. The City has funded the Grant utilizing moneys it received from the United States
Department of Housing and Urban Development ("HUD") under Title I of the Housing and
Community Development Act of 1974, as amend ("CDBG Funds"). Such funds must be used
by the City in accordance with 24 CFR 570 et seq.
E. The following covenants and restrictions are recorded against the Property in
consideration of the City's agreement to make the Grant to Developer.
394\09\1044342.7 1
AGREEMENT
NOW, THEREFORE,the City and Developer hereby declare that the following express
covenants are to be taken and construed as running with the Property and, except as set forth
below, shall pass to and be binding upon Developer and its successors, assigns, heirs, grantees or
lessees to the Property or any part thereof from the date of recordation of these Affordability
Covenants, and shall continue in effect until such times as Units are sold by Developer pursuant
to the City Predevelopment Grant Agreement at which times the lien of these Affordability
Covenants will be reconveyed from each such Unit sold and the underlying portion of the
Property. Each and every contract, deed, lease or other instrument covering or conveying the
Property or any portion thereof shall be held conclusively to have been executed, delivered and
accepted subject to covenants and restrictions regardless of whether such covenants and
restrictions are set forth in such contract, deed, lease or other instruments.
Section 1. Definitions.
The following definitions apply in this Declaration:
(a) "Adjusted Income" means total anticipated annual income of all persons in
a household as calculated in accordance with 24 CFR 92.203 (b)(1) (which incorporates 24
CFR 813).
(b) "Affordable Low Housing Cost" means a down payment in an amount to
be approved by the City and a Monthly Housing Cost not exceeding one-twelfth(1/12th) of thirty
(30%) of seventy percent(70%) of Median Income, adjusted for Assumed Household Size, for
households whose gross income is between fifty percent (50%) of the Median Income, adjusted
for Assumed Household Size and seventy percent (70%) of the Median Income, adjusted for
Assumed Household Size; and for households whose gross income does not exceed seventy
percent (70%) of Median Income, adjusted for Assumed Household Size, a Monthly Housing
Cost not exceeding one-twelfth(1/12th) of thirty percent (30%) of the actual gross income of the
household.
(c) "Assumed Household Size" means a household of one person in the case
of a studio unit,two persons in the case of a one-bedroom unit, three persons in the case of a
two-bedroom unit, four persons in the case of a three-bedroom unit, and five persons in the case
of a four-bedroom unit. This definition is used to calculate the maximum monthly housing cost
that is considered to be affordable to an Eligible Purchaser, and is not intended to place a limit on
the number of people who may reside in a Unit.
(d) "City Predevelopment Grant Agreement" has the meaning set forth in
Recital B.
(e) "City" means the City of Cupertino, a municipal corporation.
(f) "Developer" means Habitat for Humanity Silicon Valley, a California
nonprofit public benefit corporation.
394\09\1044342.7 2
(g) "Development" means the Property, the Units and the ancillary on-site
improvements.
(h) "Displaced Homemaker" means an individual who (i) is an adult, and(ii)
has not worked full-time, full-year in the labor force for a number of years but has, during such
years, worked primarily without remuneration to care for the home and family.
(i) "Eligible Purchaser" means a First Time Homebuyer meeting the income
requirements set forth in Section 3 below.
(j) "First Time Homebuyer" means an individual and his or her spouse who
have not owned a home during the 3-year period before the purchase of a Unit except that:
(1) Any individual who is a Displaced Homemaker shall not be
excluded from consideration as a First Time Homebuyer on the basis that the individual, while a
homemaker, owned a home with his or her spouse; and
(2) Any individual who is a single parent shall not be excluded from
consideration as a First Time Homebuyer on the basis that the individual, while married, owned
a home with his or her spouse or resided in a home owned by the spouse.
(k) "Homebuyer Disclosure Statement" means the disclosure statement in a
form to be provided by the City, to be executed and delivered to the City by an Eligible
Purchaser of a Unit.
(1) "Homebuyer Documents" means the Homebuyer Resale Restriction and
the Homebuyer Disclosure Statement.
(m) "Homebuyer Resale Restriction" means the Resale Restriction and Option
to Purchase Agreement between the Eligible Purchaser and the City in a form to be provided by
the City, which places restrictions on the resale of the Units to Eligible Purchasers at specified
eligible purchase prices, and which provides mechanisms to enforce such restrictions. The term
of the Resale Restriction Agreement and Option t:o Purchase Agreement shall be sixty (60) years.
The Resale Restriction Agreement and Option to Purchase Agreement will be recorded against
each Unit at the time of conveyance to an Eligible Purchaser.
(n) "Median Income" means the median gross yearly income for households
in Santa Clara County, California, as adjusted for household size, as published periodically by
the United States Department of Housing and Urban Development ("HUD"). In the event such
income determinations are no longer published b y HUD, or are not updated for a period of at
least eighteen(18)months, the City shall provide the Developer with other income
determinations which are reasonably similar with respect to method of calculation to those
previously published by HUD.
(o) "Monthly Housing Cost" consists of the sum of the following costs
associated with a Unit: (i)principal and interest Dn mortgage loans and any loan insurance fees
associated therewith; (ii) property taxes and assessments; (iii) fire and casualty insurance
covering replacement value of property improvements; (iv)property maintenance and repairs;
394\09\1044342.7 ";
(v) a reasonable allowance for utilities, including garbage collection, sewer, water, electricity,
gas, and other heating, cooking and refrigeration fuels (Utilities do not include telephone service.
Such an allowance shall take into consideration the cost of an adequate level of service); and (vi)
homeowner association fees, if any.
Monthly Housing Cost is an average of esi.imated costs for the above items for the twelve
(12) months following purchase of the Unit.
(p) "Parties" means the City and the Developer.
(q) "Property" means the real property on which the Units will be constructed,
as more particularly described in Exhibit A.
(r) "Unit" means one of the four(4) single family housing units to be
constructed on the Property.
Section 2. Use.
Developer shall use the Property to construct and sell the Units as set forth in the
Predevelopment Grant Agreement and these Affordability Covenants.
Section 3. Sale of Units.
The City and the Developer agree that the Units shall be initially sold at the following
affordability levels:
(a) All of the Units must be sold to Eligible Purchasers with Adjusted
Incomes at the time of initial occupancy at or below eighty percent(80%) of Median Income
adjusted for actual household size, at a cost to such households that does not exceed Affordable
Low Income Housing Cost. The purchase price of these Units shall not exceed the fair market
value of the Unit, and the purchase price shall be approved by the City prior to the sale.
(b) The Developer shall utilize the selection criteria identified approved by the
City to select Eligible Purchasers.
Section 4. Income Certification.
(a) As a condition precedent to an Eligible Purchaser receiving a Unit, the
Developer shall obtain from the prospective Eligible Purchasers certifications of household
income and household size in a form to be provided by the City (the "Income Certification")to
ensure that the proposed homebuyer is an Eligible Purchaser. The Developer shall income-
certify and determine other qualifications for the prospective Eligible Purchasers as close to the
time of commencement of actual construction as is reasonably possible. If the Income
Certification occurs more than twelve (12)months before sale to the Eligible Purchasers,the
Developer shall recertify the Eligible Purchasers no more than twelve (12) months before sale.
If, upon recertification, a homebuyer who is initially qualified as an Eligible Purchaser
experiences an increase in household income so that the homebuyer no longer qualifies as an
Eligible Purchaser, such homebuyer shall not be qualified to purchase a Unit.
394\09\1044342.7 4
(b) The Developer shall verify that the income provided by a prospective
Eligible Purchaser in an Income Certification is accurate by taking two or more of the following
steps as a part of the verification process: (i) obtain a pay stub for the most recent pay period;
(ii) obtain an income tax return for the three most recent tax years; (iii) conduct a credit agency
or similar search; (iv) obtain an income verification form from the prospective Eligible
Purchaser's current employer; (v) obtain an income verification form from the Social Security
Administration and/or the California Department of Social Services if the prospective Eligible
Purchaser receives assistance from either of such agencies; or(vi) if the prospective Eligible
Purchaser is unemployed and has no such tax returns, obtain another form of independent
verification.
(c) Prior to purchasing a Unit, the Developer shall cause each Eligible
Purchaser to certify that he or she will occupy the Unit as a principal place of residence and shall
agree in no event to lease the Unit, utilizing a form of certification to be provided by the City
(the "Owner Occupancy Certification").
(d) Prior to purchasing a Unit, the Developer shall cause each Eligible
Purchaser to execute: (i) a Homebuyer Resale Restriction for the benefit of the City; and (ii) a
Homebuyer Disclosure Statement, in the forms to be provided by the City, and such other
documents required by the City, all in the City's reasonable discretion.
(e) For each Eligible Purchaser purchasing a Unit the Developer shall transmit
to the City the Eligible Purchaser's Income Certification(with attached required documentation),
Owner Occupancy Certification, and City Homebuyer Documents, all executed by the Eligible
Purchaser, at least ten (10) working days prior to 1 h sale of the Unit to the Eligible Purchaser.
The City shall review these documents within ten(10) working days, and submit the executed
documents into escrow with escrow instructions.
Section 5. City Agreement to Reconvey Affordability Covenants.
The City agrees to reconvey the lien of these Affordability Covenants from each Unit and
the underlying portion of the Property as it is sold, and to terminate these Affordability
Covenants when all Units are sold to Eligible Purchasers, provided that at the time of purchase of
the Units the Eligible Purchasers execute the City Homebuyer Documents and record a
Homebuyer Resale Restriction.
Section 6. Enforcement by the City.
If the Developer fails to perform any obligation under these Affordability Covenants, and
fails to cure the default within thirty(30) days after the City has notified the Developer in writing
of the default or, if the default cannot be cured within thirty (30) days, failed to commence to
cure within thirty (30) days and thereafter diligently pursue such cure and complete such cure
within ninety (90) days, or such longer period as approved by the City in writing, the City shall
have the right to enforce these Affordability Covenants by any or all of the following actions, or
any other remedy provided by law:
(a) Repayment of the City Grant. The City may declare a default under the
Predevelopment Grant Agreement and require the Developer to repay the Grant to the City.
394\09\1044342.7 5
(b) Action to Compel Performance or for Damages. The City may bring an
action at law or in equity to compel the Developer's performance of its obligations under these
Affordability Covenants, and/or for damages.
(c) Remedies Provided Under City Predevelopment Grant Agreement. The
City may exercise any other remedy provided under the Predevelopment Grant Agreement.
Section 7. Non-Discrimination.
Developer covenants by and for itself and its successors and assigns that there shall be no
discrimination against or segregation of a person or of a group of persons on account of race,
color, religion, creed, age, disability, sex, sexual orientation, marital status, ancestry or national
origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property,
nor shall Developer or any person claiming under or through Developer establish or permit any
such practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the
Property.
Section 8. Mandatory Language in All Subsequent Deeds, Leases and Contracts.
All deeds, leases or contracts made or entered into by the Developer, its successors or
assigns, as to any portion of the Property shall contain therein the following language:
(a) In Deeds:
"(1) Grantee herein covenants by and for itself, its successors and assigns, and all
persons claiming under or through them. that there shall be no discrimination
against or segregation of, any person or group of persons on account of any basis
listed in subdivision (a) and (d) of Section 12955 of the Government Code, as
those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the
Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the property herein conveyed, nor shall the grantee or any person
claiming under or through the grantee, establish or permit any practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in
the property herein conveyed. The foregoing covenant shall run with the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1)
shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11,
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
394\09\1044342.7 6
(b) In Leases:
"(1) Lessee herein covenants by and for itself, its successors and assigns, and all
persons claiming under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on account of any basis
listed in subdivision (a) and (d) of Section 12955 of the Government Code, as
those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the
Government Code in the leasing, subleasing, transferring, use, occupancy, tenure
or enjoyment of the premises herein leased nor shall the lessee or any person
claiming under or through the lessee, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees
in the premises herein leased.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1)
shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11,
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall apply to paragraph(1)."
(c) In Contracts:
"(1) There shall be no discrimination against or segregation of, any person or
group of persons on account of any basis listed in subdivision (a) and (d) of
Section 12955 of the Government Code, as those bases are defined in Sections
12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section
12955 and Section 12955.2 of the Government Code in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the property nor shall the
transferee or any person claiming under or through the transferee establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees of the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1)
shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11,
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall apply to paragraph(1)."
Section 9. Amendments.
No alteration or variation of the terms of these Affordability Covenants shall be valid
unless made in a writing executed by both Parties.
394\09\1044342.7 7
Section 10. No Third Party Beneficiaries.
There shall be no third party beneficiaries to these Affordability Covenants.
Section 11. Notices, Demands and Communications.
Formal notices, demands, and communications between the Parties shall be sufficiently
given if and shall not be deemed given unless dispatched by registered or certified mail, postage
prepaid, return receipt requested, or delivered by express delivery service, return receipt
requested, or delivered personally, to the principal office of the Parties as follows:
City: City of Cupertino
Community Development Department
10300 Torre Avenue Cupertino, CA 95014
Attention: Senior Planner
Developer: Habitat for Humanity Silicon Valley
513 Valley Way
Milpitas, CA 95035
Attention: Executive Director
Such written notices, demands and communications shall be sent in the same manner to
such other addresses as the affected Party may from time to time designate as provided in this
Section. Receipt shall be deemed to have occurred on the date shown on a written receipt as the
date of delivery or refusal of delivery(or attempted delivery if undeliverable).
Section 12. Applicable Law.
These Affordability Covenants shall be governed by California law.
Section 13. Parties Bound.
Except as otherwise limited herein, the provisions of these Affordability Covenants shall
be binding upon and inure to the benefit of the Parties and their successors, and assigns. These
Affordability Covenants are intended to run with the land and shall bind Developer and its
successors and assigns in the Property until the earlier of that date that the last Unit is sold to an
Eligible Purchaser or December 31, 2071, and the benefit hereof shall inure to the benefit of the
City and its successors and assigns.
Section 14. Attorneys' Fees.
If any lawsuit is commenced to enforce any of the terms of these Affordability
Covenants, the prevailing Party will have the right to recover its reasonable attorneys' fees and
costs of suit from the other Party.
394\09\1044342.7 8
Section 15. Severability.
If any term of these Affordability Covenants is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force
and effect unless the rights and obligations of the Parties have been materially altered or
abridged by such invalidation, voiding or unenforceability.
Section 16. City Approval.
Whenever these Affordability Covenants calls for City approval, consent, or waiver, the
written approval, consent, or waiver of the City Manager shall constitute the approval, consent,
or waiver of the City, without further authorization required from the City Council. The City
hereby authorizes the City Manager to deliver such approvals or consents as are required by
these Affordability Covenants, or to waive requirements under these Affordability Covenants, on
behalf of the City. Any consents or approvals required under these Affordability Covenants shall
not be unreasonably withheld or made, except where it is specifically provided that a sole
discretion standard applies. The City Manager is also hereby authorized to approve, on behalf of
the City, requests by Developer for reasonable extensions of time deadlines set forth in these
Affordability Covenants. The City shall not unreasonably delay in reviewing and approving or
disapproving any proposal by Developer made in connection with these Affordability Covenants.
Section 17. Waivers.
Any waiver by the City of any obligation or condition in these Affordability Covenants
must be in writing. No waiver will be implied from any delay or failure by the City to take
action on any breach or default of Developer or to pursue any remedy allowed under these
Affordability Covenants or applicable law. Any extension of time granted to Developer to
perform any obligation under these Affordability Covenants shall not operate as a waiver or
release from any of its obligations under these Affordability Covenants. Consent by the City to
any act or omission by Developer shall not be construed to be a consent to any other or
subsequent act or omission or to waive the requirement for the City's written consent to future
waivers.
Section 18. Title of Parts and Sections.
Any titles of the sections or subsections of these Affordability Covenants are inserted for
convenience of reference only and shall be disregarded in interpreting any part of the
Affordability Covenants' provisions.
Section 19. Multiple Originals; Counterpart.
These Affordability Covenants may be executed in multiple originals, each of which is
deemed to be an original, and may be signed in counterparts.
394\09\1044342.7 9
Section 20. Recording and Filing.
The City and the Developer shall cause these Affordability Covenants, and all
amendments and supplements to them, to be recorded in the Official Records of the County of
Santa Clara.
394\09\1044342.7 10
IN WITNESS WHEREOF, Developer and the City have executed these Affordability
Covenants as of the date first above written.
CITY: DEVELOPER:
CITY OF CUPERTINO, a California HABITAT FOR HUMANITY SILICON
municipal corporation VALLEY, a California nonprofit public benefit
corporation
7-6; ) ,By:
Its: .
, / it r�13y: o i4p Y 6 i n�oitiS
1ST- X V-e
'15-1 re-PAID-<-
394\09\1044342.7 11
STATE OF CALIFORNIA )
COUNTY OF )
On 3.U.."..k. I i 201 �___, before me, ,Notary
Public, personally appeared JQ,rr r».u..-( ,,l v,n -y , who proved to me
on the basis of satisfactory evidence to be the person(,4f whose name( ( is/are subscribed to the
within instrument and acknowledged to me that4w/sheArtliey executed the same in tis/her/4keir
authorized capacity(.es), and that by s/herk.iteir signatures$) on the instrument the person O,, 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.
`, LUCINDA LEE
Commission# 1810937
kNotary Alameda County Public-California
��? , �
I__7_' _ M1 Comm.Extres Au 242012 No ry zblic
STATE OF CALIFORNIA )
COUNTY OR &ice_ )
On i Z 0 Z , before e, /�� //{v
1 l Notary
1 N ary
Public,personally :ppeared 1 , who proved to me
on the basis of satisfactory evidence to .e the person(5 whose name(�Jis/4fe subscribed to the
within instrument and acknowledged to me that hd/she/tl-Ky executed the same in hg/her/tb it
authorized capacity(i s), and that by h /her/thpl'r s ignature 4) on the instrument the personO, 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.
GRACE SCHMIDT
I" Commission•1923164
�.5 Notary public-California ebt-G)L"Cintl'
*rig+.' Santa Clara County
Fab 2t 2 15 Notary Public
394\09\1044342.6
EXHIB FT A
PROPERTY DESCRIPTION
PARCEL ONE:
A portion of Cleo Avenue(46.48 feet wide)as described in Parcel One in the Relinquishment No, 40230 to the
City of San Jose, recorded January 28, 1970, in Book 8813, Page 14, Official Records of Santa Clara County
and portions of those parcels of land described in the Deeds to the State of California recorded as follows:
State Deed No. Recordina Date Volume Page
20832 May 28, 1959 4432 25
20833 October 14, 1958 4199 471
20834 August 3, 1959 4500 526
all of Official Records of Santa Clara County, more particularly described as follows:
Commencing at the Southeasterly terminus of that certain course described as"South 35° 23'09"East, 148.00
feet"in that Director's Deed DD-020838-01-01 recorded February 13, 1998, under Recorder's Serial No.
14052911, Official Records of Santa Clara County; thence along the Southeasterly prolongation of said course,
South 35° 23'09"East, 186.58 feet; thence South 72° 21'32"East,43.63 feet; thence South 37° 21' 17"East,
17.39 feet to the Southerly line of said parcel(State Deed No. 20832); thence along last said line and the
Southerly lines of said parcels(State Deed No. 20833 and 20834), North 89°08'42"West, 167.63 feet to the
Westerly line of said parcel (State Deed No. 20834); thence along last said line and its Northerly prolongation,
North 00°51' 10"East, 145.05 feet; thence North 47° 16'03"West, 16.28 feet to the curve with a radius of
30.13 feet described in Segment One In the Relinquishment No. 56062 to the City of Cupertino, recorded
December 23, 2004, under Recorder's Serial No. 18159783, Official Records of Santa Clara County; thence
along said curve, from a tangent that bears North 29°44'22"cast, along a curve to the left with a radius of
30.13 feet, through a central angle of 40° 54'55", an arc length of 21.52 feet to the general Southerly line of
that parcel of land described in said Director's Deed; thence along last said line, South 89° 08'42"East, 13.84
feet to the point of commencement.
APN: 362-31-004
A-1
394\09\1044342.6
EXHIBIT B
PREDEVELOPMENT BUDGET
Intended Use Amount
NEPA $23,136
Addressing Fees/permitting $1,200
Erosion Control $830
Grading $46,100
Wet Utilites-Water $52,120
Wet Utilites-Sewere/Sanitary Drain $40,746
Dry Utilities-gas,elec,phone,cable $69,300
Retaining Walls $6,000
Pre-Purchase Housing Counseling $6,500
Homeownership Counseling $5,000
TOTAL GRANT AMOUNT $250,932
"NO FEE"
City of Cupertino
CERTIFICATE OF ACCEPTANCE is hereby given in order to comply with the
provisions of Section 27383 of the Government Code.
This is to certify that the Declaration of Affordability Covenants between
Habitat for Humanity
and the City of Cupertino, a governmental agency is hereby accepted by the City of Cupertino on
July 12, 2012 and the grantee consents to recordation thereof by its duly authorized officer.
Dated: July 12, 2012
c
By:
irsten Squarcia
City Clerk's Office